JUDGMENT : (C.M. POONACHA, J.) The present appeal is filed by the insurer under Section 173(1) of the Motor Vehicles Act, 1988 , [Hereinafter referred as to ‘Act’] challenging the judgment and award dated 09.11.2016 passed in MVC No.266/2012 by the Principal District Judge and MMACT, Chikkamagaluru , [Hereinafter referred as to ‘Tribunal’] 2. For the sake of convenience, the parties herein are referred as per their rank before the Tribunal. 3. The Tribunal vide its judgment and award dated 09.11.2016, partly allowed the claim petition and awarded a total compensation of Rs.5,77,700/- together with interest at 6% per annum and directed the insurer who, was arrayed as respondent No.2, before the Tribunal to deposit the compensation awarded. Being aggrieved, the present appeal is filed by the insurer. 4. The relevant factual matrix in a nutshell leading to the present appeal is that claiming compensation for the injuries sustained in a road traffic accident which occurred on 15.04.2011 the claimant filed a claim petition, whereunder it is the case of the claimant that when he and his son were returning from Balehonnour in a motor cycle bearing registration No. KA-18-L-4192 as a pillion rider, another motor cycle bearing registration No. KA-18-L-3797 came from the opposite direction at a high speed, in a rash and negligent manner and hit the motor cycle in which the claimant was traveling causing the accident in question, wherein the claimant sustained grievous injuries. 5. In the claim proceedings the owner and insurer of the offending motor cycle were arrayed as respondent Nos.1 and 2 respectively. The owner and rider of the motor cycle in which the claimant was traveling were subsequently, arrayed in the claim proceedings are as respondent Nos.3 and 4 before the Tribunal. The insurer who was respondent No.2 in the claim proceedings entered appearance and contested the same by filing statement of objections. Respondent Nos.3 and 4 have remained ex-parte before the Tribunal. Respondent No.1 entered appearance through a counsel. However, no statement of objections have been filed. 6. The claimant examined himself as PW.1 and doctor as CW.1. The representative of the insurer was examined as RW.1. The Tribunal vide its judgment and award dated 09.11.2016 partly allowed the claim petition and awarded a total compensation of Rs.5,77,700/- together with interest at 6% per annum and directed respondent No.2 – insurer of the offending motor cycle to deposit the compensation awarded. The representative of the insurer was examined as RW.1. The Tribunal vide its judgment and award dated 09.11.2016 partly allowed the claim petition and awarded a total compensation of Rs.5,77,700/- together with interest at 6% per annum and directed respondent No.2 – insurer of the offending motor cycle to deposit the compensation awarded. Being aggrieved, the present appeal is filed by the insurer challenging the finding of the Tribunal on negligence as well as on the quantum of compensation awarded. 7. It is the vehement contention of the learned counsel Sri BS Umesh appearing for the appellant – insurer that the son of the claimant who was rider of the motor cycle had filed the claim petition and after objections were filed by the insurer the said claim proceedings was withdrawn. It is further contended that the son of the claimant did not have a licence to drive the vehicle. That the Tribunal did not consider the said aspect of the matter while adjudicating upon the negligence. It is further contended that the police documents itself demonstrate the negligence of the rider of the motor cycle. It is further contended that the accident was head a on collusion between two motor cycles. The mahazar (Ex.P3) clearly demonstrates that the width of the tar road was 18 feet and there was 12 feet mud road on either side of the tar road. Hence, the accident easily have been avoided. It is further contended that the quantum of compensation awarded by the Tribunal is excessive and the same is liable to be reduced. 8. Per contra, learned counsel Sri Sachin BS appearing for the claimant justifies the finding of the Tribunal both on negligence and quantum of compensation and seeks for dismissal of the above appeal. 9. The submissions of both the learned counsel have been considered and the material on record, including the records of the Tribunal, have been perused. 10. The questions that arise for consideration are: i. Whether the finding of the Tribunal on negligence is erroneous and liable to be interfered with? ii. Whether the quantum of compensation awarded by the Tribunal is excessive and liable to be reduced?” Reg. Question (i) :- 11. 10. The questions that arise for consideration are: i. Whether the finding of the Tribunal on negligence is erroneous and liable to be interfered with? ii. Whether the quantum of compensation awarded by the Tribunal is excessive and liable to be reduced?” Reg. Question (i) :- 11. The claimant, in the claim petition, has specifically averred that when he and his son were returning on the motor cycle bearing registration No.KA-18-L-4192 as pillion rider in a moderate speed, another motor cycle bearing registration No. KA-18-L-3797 came from the opposite direction at a high speed and hit against the motor cycle in which the claimant was traveling. In the statement of objections respondent No.2 - insurer has specifically contended that the rider of the motor cycle No. KA-18-L-4192, in which the claimant was traveling, was negligent in causing the accident and there was no negligence on the part of the rider of the offending motor cycle / insured vehicle. The claimant examined himself as PW.1 and deposed, reiterating the manner of occurrence of the accident as averred in the claim petition. The First Information Report (Ex.P1) and complaint (Ex.P2) have been produced. The insurer examined its official as RW.1 and produced a copy of the order sheet in MVC No.267/2012 (Ex.R2) and copy of the objections of the insurer in MVC No.267/2012 (Ex.R3). 12. The Tribunal considering the aspect regarding negligence has recorded the following findings: “Ex.p1 is the FIR. Ex. P2 is the complaint. Ex.P3 is the spot mahazar. Ex.P4 is the police notice. Ex.P21 certified copy of register in CC case and Ex.P22 is certified copy of disposal register. From going through said documents, it is clear that after the accident, case was registered against respondent no.1 and in C.C. No: 336/2011 the present respondent no.1 was convicted and sentenced to pay fine of Rs. 1750-00. From Ex.P21, it is clear that respondent no1. might have admitted guilt, thereby he was convicted and case was disposed off in the year 2011 itself on 31.12.2011. Ex.P21 coupled with oral evidence of PW1 is sufficient to prove the alleged rash or negligent act of driving on the part of respondent no.1. 1750-00. From Ex.P21, it is clear that respondent no1. might have admitted guilt, thereby he was convicted and case was disposed off in the year 2011 itself on 31.12.2011. Ex.P21 coupled with oral evidence of PW1 is sufficient to prove the alleged rash or negligent act of driving on the part of respondent no.1. On the contrary, even though specific issue no.2 was framed casting burden on respondent no.2 to prove negligent act of driving on the part of son of the petitioner, the oral evidence of RW1 is not sufficient to prove the same. Therefore, respondent no.2 failed to prove negligent act of driving the past son of the petitioner i.e. respondent no.4.” (emphasis supplied) 13. Although, it is the vehement contention of the learned counsel for the insurer that the son of the claimant who was the rider of the motor cycle had initially filed MVC No.267/2012 and when the insurer filed objections, that the rider of the said vehicle himself was negligent in causing the accident in question, the said MVC No.267/2012 was withdrawn, it is pertinent to note here that the claim petition in MVC No.267/2012 has not been produced. Notwithstanding the same, the mere factum of withdrawal of MVC No.267/2012 will not aid the case of the insurer in the absence of the insurer examining the rider of insured vehicle or any other eye witness to prove the contention taken by them, that the rider of insured vehicle was not negligent in causing the accident. RW.1, the official of the insurer was not an eye witness to the accident. 14. The Tribunal has noticed that the rider of the vehicle has admitted his guilt and has been convicted on 31.12.2011 itself. The Tribunal has further recorded a finding that having regard to the testimony of PW.1, coupled with Ex.P21, in the absence of the insurer adducing any oral or documentary evidence with regard to the manner of occurrence of the accident, it is required to hold that the rider of the insured vehicle was negligent in causing the accident 15. In view of the aforementioned, the appellant has failed in demonstrating that the finding of the Tribunal regarding negligence is in any manner erroneous and liable to be interfered with by this Court in the present appeal. Hence, the question (i) framed for consideration is answered in the negative. Reg. Question (ii) :- 16. In view of the aforementioned, the appellant has failed in demonstrating that the finding of the Tribunal regarding negligence is in any manner erroneous and liable to be interfered with by this Court in the present appeal. Hence, the question (i) framed for consideration is answered in the negative. Reg. Question (ii) :- 16. The claimant was aged 68 years as on the date of the accident i.e., on 15.04.2011. Hence, the appropriate multiplier assessed is ‘5’ which is just and proper. 17. It is averred that the claimant was an agriculturist. However, no documents have been produced to demonstrate his income. Having regard to the date of the accident the notional income of the claimant is re-assessed as Rs.6,500/- per month. 18. It is forthcoming from the wound certificate (Ex.P5), disability certificate (Ex.P7) and other medical documents available on record that the claimant sustained type three fracture of the tibia. The claimant was treated as an inpatient on various dates for a total period of 113 days. The doctor (CW.1) has assessed the disability at 30% to the particular limb which has been assessed by the Tribunal as 10% to the whole body, which is just and proper. 19. Having regard to the aforementioned, the compensation is re-assessed as follows: i. Having regard to the nature of injuries sustained, it is just and proper to award compensation towards pain and suffering at a sum of Rs.40,000/- as against Rs.50,000/- awarded by the Tribunal. ii. Having regard to the period during which the claimant was treated as an inpatient, it is just and proper to award compensation towards food, nourishment and attendant charges at sum of Rs.60,000/- as against Rs.1,13,000/- awarded by the Tribunal. iii. The medical expenses has been awarded as per actual bills in a sum of Rs.2,85,700/- which is just and proper. iv. The compensation towards conveyance at Rs.20,000/- which is just and proper. v. Laid up period is assessed as five months. Accordingly, the compensation towards loss of income during laid up period is assessed as (Rs.6500/- X 5)= Rs.32,500/- as against Rs.30,000/- awarded by the Tribunal. vi. The loss of earning capacity is re-assessed as (6500 X 12 X 5 X 10%)= Rs.39,000/- as against Rs.54,000/- awarded by the Tribunal. vii. Although, the Tribunal has awarded sum of Rs.25,000/- towards future medical expenses, the same is re-assessed as Rs.15,000/-. 20. vi. The loss of earning capacity is re-assessed as (6500 X 12 X 5 X 10%)= Rs.39,000/- as against Rs.54,000/- awarded by the Tribunal. vii. Although, the Tribunal has awarded sum of Rs.25,000/- towards future medical expenses, the same is re-assessed as Rs.15,000/-. 20. In view of the aforementioned, the compensation re-assessed is as follows: Sl.No Compensation Head Amount Awarded by the Tribunal (Rs.) Amount awarded by this Court (Rs.) 1 Pain and suffering 50000.00 40000.00 2 Attendant, food and nourishment charges 113000.00 60000.00 3. Medical expenses 285700.00 285700.00 3 Loss income during treatment 30000.00 32500.00 4 Conveyance 20000.00 20000.00 5 Loss of earning capacity 54000.00 39000.00 6 Future medical expenses 25000.00 15000.00 Total 577700.00 492200.00 21. Accordingly, question (ii) framed for consideration is answered in the affirmative . The compensation awarded by the Tribunal is re-assessed as Rs.4,92,200/- and hence, is liable to be reduced by (Rs.5,77,700/- - Rs.4,92,200/-) Rs.85,500/-. 22. In view of the aforementioned, the following: ORDER i) The appeal is allowed in part; ii) The judgment and award dated 09.11.2016 passed in MVC No.266/2012 by the Principal District Judge and MMACT, Chikkamagalluru, is hereby modified to the extent stated herein. In all other respects, the judgment and award of the Tribunal remains unaltered; iii) The claimant is entitled to a total compensation of Rs.4,92,200/- together with interest at 6% per annum from the date of the petition till the date of payment; iv) Amount deposited by the appellant in the above appeal together with the records shall be transmitted the Tribunal forthwith; v) The insurer (appellant herein) respondent No.2 before the Tribunal shall deposit the balance compensation together with accrued interest, if any, within a period of six weeks; vi) Upon such deposit, the compensation together with interest accrued thereupon is to be disbursed to the claimant in terms of the award of the Tribunal; vii) The Registry to draw the modified award accordingly; No costs.