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9. That the respondent No. 4 in spite of being served with notice of appeal, has neither filed the appeal nor filed the cross-objections and the decree that has been passed fastening liability for the compensation to the extent of 50% on respondents 4 and 5 and 50% on respondents 1 to 3, has become final. The learned Counsel for respondent No. 1 submitted that decree determines the rights and liability of the parties. But here in the present case, the decree that has been passed which is the one determining the liability of the respondents for payment of compensation oh one hand and on the other hand, right of the claimant to realise compensation from each set of respondents and also the extent to which claimant can realise from each of the sets. As such, the learned Counsel for respondents 1, 2 and 3 contended that the challenge to this finding that negligence was 50%, 50% of both the sets of respondents tantamounts to challenging the decree of the Tribunal which has determined the liability of two sets of respondents in this case to pay and the extent of right of the claimant to realise the money from either of the two opposite parties and as such it is not open to challenge. In the alternative, Counsel for the respondents 2 and 3, that is the KSRTC submitted that the accident indicates that really, the accident did not have taken place on account of rash and negligent driving of the motor cycle by the motor-cycle rider and compensation should be made payable in entirety by respondents 4 and 5 and not by the KSRTC. As regards the amount of compensation, the Counsel on behalf of respondent I .o. 5 - Insurance Company submitted that compensation that has been awarded is just, proper and sufficient. The learned Counsel contended that the injury was not due to fracture, but even earlier to that, the claimant was suffering from polio in both the legs and as such, the disability which has been determined to 40% is erroneous. At the most, the disability might have been arisen out of the accident, if at all, would be if lesser in percentage, and the learned Counsel for respondent No. 5, submitted that the claimant is earning and continuously earning. The Counsel submitted that even, at the time of determination of compensation, the claimant was doing his business. As regards matrimonial disability, the learned Counsel for the respondents have not been able to contest and dispute that, as submitted by the learned Counsel for the appellant and submitted that it is for the Court to take its own view, instead of any submission being met looking to the evidence. The learned Counsel for the Respondent No. 5 submitted that it is open to him to challenge the finding on the question of compensation awarded as well as on the question of negligence which has been assessed to be 50% each in view of the provisions of Order 41, Rule 22 of the Civil Procedure Code, fort short the 'Code'. In support of this last contention that he is entitled to challenge that finding, the learned Counsel for the 5th respondent - Insurance Company made reference to the decision of this Court in Kunha Naika v. Laxmimathi Shedthi, 1991 (3) Kar. LJ (Supp.) 73. He also made reference to the decision of the Madras High Court in Caddem Chinna Venkata Rao v. Koralla Satya AIR 1943 Madras 698 and to the case of Sri Chandra Prabhujijain Temple v. Harikrishna ..

However, it is clear that he suffered fracture of the right knee joint and, consequently, the movement is affected by the disability and the said disability comes in the way of enjoyment of his life.

The Tribunal has after recording the finding has awarded Rs. 16,000/- as global compensation. The learned Counsel for the respondent No. 5 has invited my attention to the statement in the course of examination particularly of the statement of PW 1 contained in paragraph 4, where PW 1 states that: I am suffering from polio since my birth to my both the legs. Merely because the petitioner had some polio, it did not give a licence to the opposite parties, that is respondents 1 and 4 to cause injury to his knee or fracture of his limb. It may be considered as a minimising factor of the disability, but it cannot give a licence to the persons to cause fracture by colluding their vehicles. The report of the Doctor and the wound certificate no doubt, indicate doctor's opinion that his disability was upto 40%, as Doctor has very specifically said that shortening of the leg was due to the fracture, it means it was not due to something like his polio.

14. In the claim petition, the claimant had claimed Rs. 5,000/- towards medical treatment no doubt in course of his statement, he has stated that he had incurred expenditure to the tune of Rs. 8 to 9 thousands and had denied the suggestion which was made to him that he had falsely deposed in his examination-in-chief that he spent Rs. 8 to 9 thousands. May be there be some exaggeration in the figure of Rs. 8,000/- to Rs. 9,000/-, but there is no doubt, he must have incurred expenditure to the tune of Rs. 5,000/-. PW1 has stated that Dr. Sharma has charged Rs. 2,000/- towards the treatment given to him and looking to this figure, it can be assumed that the expenditure to the tune of Rs. 5,000/- night have been incurred. If this figure of Rs. 5,000/- is substracted from Rs. 16,000/-, then what remains will only be Rs. 10 or 11 thousands as the general damages. As submitted by the 4th and 5th respondents' Counsels that claimant suffered disability from the polio, but the claimant has suffered more disability on account of the occurrence or by incident or motor accident that had taken place. In case, I take that disability at a reduced figure from 40% to 15% or 20% and calculate towards general damages on the basis of the daily earnings of the person by monthly income and yearly income multiplied by the multiplier of 10, if there would have been total damage of full disability, the damages could have been awarded to the tune of almost Rs. 2,50,000/- and in that case, if disability is taken to be 15%, the amount would have come to a sum of Rs. 45,000/-. This may be taken to be and I think it would be proper in such a case to award and to hold that claimant will be entitled to compensation to the tune of Rs. 45,000/- under the head 'general damages' which may include damages for pain and suffering, for loss or diminishing of the earning capacity and the enjoyment of life. In respect of medical expenditure as special damages, the claimant may be held to be entitled to a sum of Rs. 5,000 /- as claimed. The claimant has been a vendor of the vegetables. According to the statement, he had been earning Rs. 80/- per day and he had paid Rs. 2,000/- to Dr. Sharma and for other expenses also. Thus considered in my opinion, the claimant to be entitled as under general damages Rs. 45,000/- and special damages of Rs. 5,000/-; in total the amount of damages will be Rs. 50,000/-.