JUDGMENT : 1. The appeals in MFA No.21955/2009 and MFA No.21956/2009 are filed by the claimants before the Principal Civil Judge (Sr.Dn.) & Additional MACT, Gokak (hereinafter referred to as ‘the Tribunal’ for short) in MVC Nos.2186 and 2187 of 2007 seeking enhancement of the compensation awarded by the Tribunal, whereas, MFA No.22580/2010 and MFA No.22435/2010 are filed by the owner of the alleged offending vehicle seeking fastening of the liability upon respondent No.2-Insurance Company. 2. In the claimants’ appeal, they have taken a contention that the compensation awarded by the Tribunal is on the lower side. The Tribunal has not appreciated the nature of injuries suffered by the claimants and the monthly income they were getting prior to the accident. With this, they have prayed for enhancement of the compensation. 3. The owner of the offending vehicle in his memorandum of appeal, has taken a contention that, with respect to the very same accident, the very same Tribunal in a previously instituted petitions, i.e., in MVC No.975/2003 and other connected matters had fixed the liability upon the Insurance Company, as such, in subsequent cases, the said Insurance Company cannot be discharged from its liability. 4. Since all these matters have arisen out of a single accident and were clubbed with each other, a common argument was heard and taken up for passing a common judgment. 5. For brevity, the claimants in the Tribunal would be referred to as claimants, respondent No.1 before the Tribunal would be referred to as the owner and respondent No.2 before the Tribunal as insurer. 6. The owner in his appeal has not denied the occurrence of the accident on the date, time, place and in the manner as agitated by the claimants in their claim petition. As such, the question of occurrence of the accident on the date, time, place and in the manner as contended by the claimants since has reached finality, the same need not be re-analysed again. However, for better understanding of the facts of the case, the summary of the incident as agitated by the claimants can be reflected. As such, the question of occurrence of the accident on the date, time, place and in the manner as contended by the claimants since has reached finality, the same need not be re-analysed again. However, for better understanding of the facts of the case, the summary of the incident as agitated by the claimants can be reflected. It reveals that, on 10.01.2003 at about 2.30 a.m., while the claimants traveling from Gokak to Shabarimale in a Tempo Trax bearing Reg.No.KA-23/Z-5015 under the ownership of respondent No.1/owner, due to rash and negligent driving of the said vehicle by its driver, it met with a Road Traffic Accident at 2.30 a.m. on Honnavar-Jogamath road on NH-17. The said vehicle dashed to a road side electric pole resulting in an accident. In the said accident, the claimants sustained injuries. 7. The Tribunal has awarded the compensation to the claimant in MFA No.21955/2009 (MVC No.2186/2007) as shown below: Amount(Rs.) Pain and agony Rs.20,000/- Medical expenses Rs.7,000/- Attendant charges Rs.1,600/- Nutrition, incidental and traveling Rs.3,000/- Loss of income during laid up period Rs.5,000/- Loss of future earning capacity Rs.37,800/- Loss of amenities, happiness and frustration Rs.5,000/- TOTAL Rs.79,400/- 8. From a perusal of the of the records, it is noticed that, in the accident, the claimant in MVC No.2186/2007 had sustained linear fracture styloid process of left ulnar and mild sub-luxion of distance inter phalanx joint on left thumb. The same is depicted in Ex.P13 and also come out in the evidence of P.W.1. In the light of the nature of injuries and the period of 17 days treatment the claimant has taken in the hospital as an inpatient, I am of the view that the quantum of compensation awarded under the head of ‘pain and agony’ deserves to be enhanced by a sum of Rs. 5,000/-. Since the medical expenses of a sum of Rs. 7,000/- has been awarded based on the actuals, considering the medical bills and other relevant documents at Exs.P2, P11 and P12, I do not want to interfere in it. Similarly, with respect to the quantum of compensation awarded towards attendant charges also, I do not find any reason to enhance the same. However, considering the period of inpatient and more particularly the nature of injuries suffered by the claimant, the compensation awarded towards nutrition, incidental and traveling deserves to be enhanced by a sum of Rs. Similarly, with respect to the quantum of compensation awarded towards attendant charges also, I do not find any reason to enhance the same. However, considering the period of inpatient and more particularly the nature of injuries suffered by the claimant, the compensation awarded towards nutrition, incidental and traveling deserves to be enhanced by a sum of Rs. 3,000/- to bring it to a reasonable quantum. Even after observing that the claimant must have laid up for a period of two months, during which period he has lost his income, the Tribunal has awarded a sum of Rs. 5,000/- towards ‘loss of income during laid up period’. While arriving at that observation, it has taken monthly income of the claimant at Rs. 2,500/- p.m. However, noticing that even in the absence of any document to prove the income of the claimant for the said period, considering the notional income for the relevant year, 2003, for which, the Coordinate Benches of this Court are taking the notional income at Rs. 3,250/-, I also intend to take the same notional income in the case on hand. In such an event, towards ‘loss of income during laid up period’, the claimant is entitled for enhancement of a sum of Rs. 1,500/-. 9. After considering that the claimant was suffering with permanent partial physical disability and that he was aged 33 years as at the time of accident, the Tribunal has applied the multiplier of ‘15’, taking the alleged disability at 7% for the whole body and awarded compensation of a sum of Rs. 37,800/- towards ‘Loss of future earning capacity’. Retaining the same age which is undisputed, the proper multiplier would be ‘16’, but not ’15’ as taken by the Tribunal. After going through the evidence of P.W.1 and more particularly P.W.2-doctor and the disability certificate at Ex.P10, I am of the view that percentage of disability as applicable to the whole body is required to be taken in the instant case at 9%. With such inputs, the quantum of compensation under the said head would be Rs. 56,160/- (Rs. 3,250/- x 12 x 16 x 9/100). After deducting Rs. 37,800/- awarded by the Tribunal, the difference amount would be Rs. 18,360/-, the enhancement of which amount, the claimant is entitled to. Towards ‘loss of amenities’ also the quantum of compensation awarded by the Tribunal appears to be marginally lesser than a reasonable compensation. 56,160/- (Rs. 3,250/- x 12 x 16 x 9/100). After deducting Rs. 37,800/- awarded by the Tribunal, the difference amount would be Rs. 18,360/-, the enhancement of which amount, the claimant is entitled to. Towards ‘loss of amenities’ also the quantum of compensation awarded by the Tribunal appears to be marginally lesser than a reasonable compensation. Considering the nature of injuries and the deprivation amenities to the claimant, it is reasonable to enhance the said compensation by another sum of Rs. 5,000/-. Thus, in total, the claimant in MVC No.2186/2007 is entitled for a total enhancement of a sum of Rs. 32,860/-, which is in addition to the compensation awarded by the Tribunal. 10. In respect of MFA No.21956/2009 (MVC No.2187/2007), the Tribunal has awarded compensation as below: Amount (Rs.) Pain and agony Rs.10,000/- Medical expenses Rs.7,000/- Attendant charges Rs.1,500/- Nutrition, incidental and traveling Rs.3,000/- Loss of income during laid up period Rs.2,500/- Loss of amenities, happiness and frustration Rs.5,000/- TOTAL Rs.29,000/- 11. Considering the fact that the claimant had sustained fracture mandible and three simple injures and he took treatment as an inpatient for 15 days, I am of the view that reasonable compensation towards ‘pain and agony’ would be Rs. 15,000/-. Since the Tribunal has awarded only a sum of Rs. 10,000/-, the claimant deserves an enhancement of a sum of Rs. 5,000/-. Since the medical expenses of a sum of Rs. 7,000/- has been awarded based on the actuals, considering the medical bills and other relevant documents at Exs.P11 and P13, I do not want to interfere in it. Similarly, with respect to the quantum of compensation awarded towards attendant charges also, I do not find any reason to enhance the same. However, considering the period of inpatient and more particularly the nature of injuries suffered by the claimant, the compensation awarded towards nutrition, incidental and traveling deserves to be enhanced by a sum of Rs. 2,000/- to bring it to a reasonable quantum. Even after observing that the claimant must have laid up for a period of one month, during which period he has lost his income, the Tribunal has awarded a sum of Rs. 2,500/- towards ‘loss of income during laid up period’. While arriving at that observation, it has taken monthly income of the claimant at Rs. Even after observing that the claimant must have laid up for a period of one month, during which period he has lost his income, the Tribunal has awarded a sum of Rs. 2,500/- towards ‘loss of income during laid up period’. While arriving at that observation, it has taken monthly income of the claimant at Rs. 2,500/- p.m. However, noticing that even in the absence of any document to prove the income of the claimant for the said period, considering the notional income for the relevant year, 2003, for which, the Coordinate Benches of this Court are taking the notional income at Rs. 3,250/-, I also intend to take the same notional income in the case on hand. In such an event, towards ‘loss of income during laid up period’, the claimant is entitled for enhancement of a sum of Rs. 750/-. 12. The claimant claimed compensation towards loss of future earning capacity alleging that due to the injuries sustained by him in the accident, he has suffered with permanent partial disability. In that regard, he has also examined P.W.2-Dr.Ramesh Patagundi, Orthopedic Surgeon, who has deposited to the effect that, by his observation, the injured was found to be suffering disability at 20% in respect of mandible. However, nothing was placed on record to show that how the alleged disability to the mandible has come in the way of the claimant continuing his avocation and earning any sum not less than what he was earning previously. As such, the Tribunal has rightly observed that the claimant is not entitled for compensation under the head ‘loss of future earning capacity’. 13. Finally, towards ‘loss of amenities’, the Tribunal has awarded compensation of a sum of Rs. 5,000/-. However, it cannot be ignored that due to the fracture of mandible and mal-union of the said fracture, the doctor has opined that the claimant would be suffering difficulty in chewing forever. As such, through out his lifetime in chewing food of his choice and taste, he may find it inconvenience, which results in ‘loss of amenities’ to a considerable extent. As such, it is reasonable to enhance the compensation under the head of ‘loss of amenities’ by a sum of Rs. 10,000/-. 14. Barring the above, the claimant is not entitled for enhancement of compensation or awarding of compensation under any other heads. 15. As such, it is reasonable to enhance the compensation under the head of ‘loss of amenities’ by a sum of Rs. 10,000/-. 14. Barring the above, the claimant is not entitled for enhancement of compensation or awarding of compensation under any other heads. 15. Thus, in total, the claimant in MVC No.2187/2007 is entitled for a total enhancement of a sum of Rs. 17,750/-, which is in addition to the compensation awarded by the Tribunal. 16. The next question is about the liability of the insurer to pay compensation. According to the learned counsel for the owner of the offending vehicle, with respect to the very same accident, the very same Tribunal in previous cases in MVC Nos.975, 976, 977 and 978 of 2003 has held insurer is liable. As such, the very same Tribunal subsequently cannot hold the insurer is not liable. 17. On the other hand, the learned for the Insurance Company in his argument vehemently submitted that the Insurance Company had taken the stand of violation of the condition of the policy in both the set of batches of the claim petitions, i.e., both in MVC No.975/2003 and connected matters and also in MVC Nos.2186 and 2187 of 2007. However, the insurer could not prove the fact that the insured was using that vehicle for hire purposes and at the time of the accident also, the vehicle was hired by the inmates. On this aspect, observing that the insurer could not prove that there was any breach of the condition of the policy, the Tribunal in MVC No.975/2003 has fastened the liability upon the insurer. The learned counsel further submitted that, in the case on hand, the Insurance Company has clearly established in the cross-examination of P.W.1 in MVC No.2187/2007 that at the time of the accident, the claimants had hired the offending vehicle and traveling to Shabarimale as passengers. Even the Tribunal has made a clear observation to the effect that, it is established through the evidence that the claimants have hired the vehicle, when in fact the said vehicle was a private car not eligible to be hired as per the policy conditions. Therefore, the Tribunal has rightly exonerated the Insurance Company. 18. It is not in dispute that the offending vehicle is a Tempo Trax registered as a private vehicle and insured under the ‘Package Policy’ as a private car. Therefore, the Tribunal has rightly exonerated the Insurance Company. 18. It is not in dispute that the offending vehicle is a Tempo Trax registered as a private vehicle and insured under the ‘Package Policy’ as a private car. The insurance policy is marked as Ex.R1 in the case. As per the said policy, the said vehicle was not supposed to be used for hire or reward and ought to have been confined for the personal use of the insured. The use of the said vehicle for hire would be the violation of the condition of the policy. In the instant case, Sri. Yallappa B. Ghorpade, who was examined as P.W.1 has clearly admitted in his evidence that, at the time of the accident, they had hired the said Tempo Trax and traveling to Shabarimale as passengers. Therefore, it is clear that, at the time of the accident, the vehicle was hired and the claimants were traveling as passengers. Thus, there is violation of the conditions of the policy. 19. No doubt, both MVC No.975/2003 and connected matters and present MVC Nos.2186 and 2187 of 2007 have arisen out of a single/same accident, as such the insurer and the motor vehicle are one and the same. In the earlier cases, i.e., in MVC No.975/2003 and connected matters, the Tribunal had fastened the liability upon the insurer, whereas in the judgment and award under appeal in the present appeals, the Tribunal has exonerated the insurer. It is on this point, the learned counsel for the claimants made his submission that, with respect to the very same accident two types of observations regarding liability cannot come out. No doubt, in a similar situation, there shall be no contradictory judgments either by the same or two different Tribunals with respect to the same accident, but the contradiction in the accident cases are not with respect to the occurrence of the accident or that the alleged rash and negligent driving on the part of the driver of the offending vehicle, which are the basic aspects or questions involved in a Motor Accident Claim Petitions. In the instant case, the question is with respect to the leading of evidence, proving the issues and appreciation of the evidence. 20. In the instant case, the question is with respect to the leading of evidence, proving the issues and appreciation of the evidence. 20. It is not in dispute that in both the sets of claim petitions, i.e., both in MVC No.975/2003 and connected matters and MVC Nos.2186 and 2187 of 2007, the insurer in his written statement as well as in his evidence had taken a uniform stand that there was violation of the condition of the policy by the owner in using the vehicle for hire. However, the insurer upon whom the burden of proving the said contention was lying, could not prove his contention in the first set of claim petitions, i.e., in MVC No.975/2003 and connecters. Whereas in the present set of claim petitions, i.e., in MVC Nos.2186 and 2187 of 2007, apart from taking such a contention, the insurer has established the said contention by eliciting statement from the claimant P.W.1 and also leading evidence through R.W.1. Thus, the hairline difference between these two cases is about proving of a contention/plea taken by one of the party to the litigation. Had it been the point of the insurer not taking such plea in one case and taking a contrary plea in other case, the situation would have bee different. But in the instant case, since the insurer had taken such a plea at the earliest point of time in both sets of claim petitions, but only failed to prove his contention in the first set of claim petitions, by that itself, the insurer cannot be precluded from proving his contention in the second set of claim petitions. Once he proves his plea in the second set of claim petitions, then law would fallow in its usual course and having discharged his burden and proving the contention of alleged violation of the conditions of the policy, he would be entitled for exoneration from his/its liability. As such, the contention of the learned counsel for the owner that since the insurer was fastened with liability in the earlier cases, he cannot be exonerated in the second set of cases cannot be accepted, particularly, in the light of the facts and circumstances of the present case. 21. In view of the above observations, I proceed to pass the following: ORDER The appeal in MFA No.21955/2009 is allowed in part. 21. In view of the above observations, I proceed to pass the following: ORDER The appeal in MFA No.21955/2009 is allowed in part. The judgment and award passed by the Principal Civil Judge (Sr. Dn.) & Additional MACT, Gokak in MVC No.2186/2007 dated 04.04.2009 is modified to the extent that the compensation awarded at Rs. 79,400/- is enhanced and fixed at Rs. 1,12,260/- (Rupees One Lakh Twelve Thousand Two Hundred and Sixty only) The appeal in MFA No.21956/2009 is allowed in part. The judgment and award passed by the Principal Civil Judge (Sr. Dn.) & Additional MACT, Gokak in MVC No.2187/2007 dated 04.04.2009 is modified to the extent that the compensation awarded at Rs. 29,000/- is enhanced and fixed at Rs. 46,750/- (Rupees Forty Six Thousand Seven Hundred Fifty only) The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing them to deposit the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded, shall remain unaltered. MFA Nos.22435 and 22580 of 2010 are dismissed. The amount deposited if any, by the appellants in MFA Nos.22435 and 22580 of 2010 be transmitted to the concerned Tribunal without delay. No order as to costs. Draw modified awards accordingly.