Judgment:
H.N. Tilhari, J.
1. This appeal under Section 173(1) of the Motor Vehicles Act, 1988, has been preferred by the claimant-appellant, from the judgment and award dated 11.9.1991 and the grievance of the appellant is that the compensation awarded to him is unjust and too meagre and insufficient.
2. The facts of the case in brief are that on 23.12.1988 injuries were caused to the claimant-appellant in the accident which according to the claimant-appellant, occurred on account of rash and negligent driving of the truck bearing registration No. MEG 7669 driven by the respondent No. 1 and belonging to the respondent No. 2 and insured by the respondent No. 3. The accident occurred on 23.12.1988 at 17.30 hours (5.30 p.m.) at Poona-Bangalore road near Hitni cross in village Kanagala. The claimant's case has been that, as a result of the occurrence, the claimant suffered injuries including fractures of collar bone and right leg as well as resulting in amputation of his left leg from knee. The claimant's case has been that on account of these injuries the claimant has been permanently disabled. In the claim petition it was averred that the age of claimant at the time of the occurrence was 30 years and immediately earlier to the occurrence or incident the claimant was healthy and used to work as a coolie worker and was earning Rs. 30/- to Rs. 40/- per day. But, on account of the injuries and amputation of his left leg, he has become permanently disabled to do any work and his future life has become miserable and the life of members of his family has also become miserable. So the claimant claimed compensation to the tune of Rs. 3,50,000/-. On notice being issued, the objections were filed by the respondent No. 3, i.e., the insurance company and the respondent Nos. 1 and 2 have adopted the objections of the respondent No. 3. The respondent No. 3 in his reply took a plea that there has been contributory negligence on the part of the claimant as he was careless and negligent while carrying the fodder on his head. A further plea that was taken is to the effect that the amount claimed is excessive and exorbitant. In the additional objections, the respondent No. 3, i.e., the insurance company contended that the liability, if any, under the policy is to the tune of Rs. 1,50,000/- and if the Tribunal comes to the conclusion that this respondent is liable to pay any amount of compensation, the maximum liability of respondent No. 3 is up to Rs. 1,50,000/-.
The Tribunal framed the following three issues:
(1) Whether the petitioner proves that he sustained personal injuries in an accident that occurred on 23.12.1988 due to the rash and negligent driving of the truck No. MEG 7669 driven by respondent No. 1?
OR
Whether the respondents prove that the petitioner has also contributed to the accident and that the accident did not occur solely due to the rash and negligent driving of the truck?
(2) What is the quantum of compensation to which the petitioner is entitled and from which of the respondents?
(3) What order?
3. In support of his claim, the petitioner filed the evidence and examined himself in evidence. Exhs. P-1 to P-17 are the documentary evidence furnished on behalf of the claimant. On behalf of the respondents, no evidence has been adduced. It is only the insurance policy that has been filed and has been marked as Exh. D-1 by the consent of the parties.
4. The Tribunal recorded the following findings:
(1) That the accident occurred solely due to the rash and negligent driving of the truck No. MEG 7669 which was driven by respondent No. 1, U. Ramadas Naik, driver of the truck, owned by respondent No. 2 and insured by respondent No. 3.
(2) That the respondents failed to prove any contributory negligence on the part of the claimant.
5. Thus having considered and recorded the findings, the Tribunal further held that the nature of the injuries sustained by the claimant-petitioner reveal that he is permanently handicapped and he has to lead a crippled life. It has also held that there is permanent disfigurement and the injured, i.e., the claimant has now to use crutches for movements and there is future pecuniary loss also. The Tribunal awarded the compensation as under:
For pecuniary loss - Rs. 50,000/-Towards medicaltreatment and otherexpenses - Rs. 5,000/-For pain and suffering - Rs. 10,000/-For loss of amenities - Rs. 10,000/-
Thus, in total, the Tribunal found that Rs. 75,000/- would be just and reasonable compensation payable to the claimant. It further found that a sum of Rs. 7,500/- had already been paid towards interim compensation. So that sum is adjustable and deductible from the sum of Rs. 75,000/-. Thus, according to the Tribunal, finally the amount payable to the claimant would be Rs. 67,500/.
6. Having felt aggrieved from this judgment and award and feeling that the compensation awarded is inadequate and insufficient, the claimant has come up with an appeal before this Court.
7. I have heard Mrs. Sona Vakkund, learned Counsel for the appellant, and Mr. B. Chikkeurs, learned Counsel for the respondent Nos. 2 and 3.
8. Mrs. Sona Vakkund, learned Counsel for the appellant, submitted that the compensation that has been awarded to the tune of Rs. 50,000/- for loss of earnings at the rate of Rs. 10/- per day, i.e., Rs. 3,600 per year multiplied by '14' is not just or correct. The learned Counsel submitted that the learned Judge or the Member of the Tribunal was not justified in taking the average earnings of the claimant to be Rs. 10/- per day. The learned Counsel has taken me through the evidence to indicate that for the first four months he used to earn Rs. 40-45/- per day, then for subsequent period, i.e., during the sugar-cane cutting season he used to get labour charge at Rs. 30/- per day and during other days he earned Rs. 15-20/- per day. The learned Counsel submitted that there is no scaling down of his earning to Rs. 10/- per day. She submitted that in any case if income has to be put to an average per day, it should not have been less than Rs. 25/- or Rs. 20/- per day and multiplier of '14' is very low. The learned Counsel submitted that at least when the life span has been increased to 60 years, the person will have to carry the malady of disability caused and the malady of disfigurement for whole life, for almost thirty years or twenty-eight years, as the court has found that the claimant was of 32 years, then even up to 60 years he has to carry the malady of disfigurement as well as disability caused on account of amputation of his one leg and fracture of other leg and so in any case the multiplier of '18' should be applied. The learned Counsel for the petitioner contended that the evidence on record per se discloses that a sum of Rs. 2,200/- or more has been spent by the claimant on conveyance charges, to and from the hospital and for visiting three to four times as well. It may go up, but the evidence shows that Rs. 2,500/- have been spent towards the conveyance charges. Mrs. Sona Vakkund further submitted that medical expenditure which has been awarded to the tune of Rs. 5,000/- is also insufficient. The claimant has been hospitalised for almost three months and as per the deposition on oath, the claimant has incurred expenditure to the tune of Rs. 10,000/- for medical treatment and nourishment. The learned Counsel further submitted that the sums awarded to the tune of Rs. 10,0007-towards pain and suffering as well as Rs. 10,000/- towards loss of amenities of life are also insufficient. She submitted that at least double of the amount should have been awarded under the head loss of amenities as well as for pain and suffering. The learned Counsel submitted that the claimant has been entitled to the compensation to the extent he claimed.
9. These contentions of the learned Counsel for the appellant have been hotly contested by Mr. B. Chikkeurs, learned Counsel appearing on behalf of the respondent Nos. 2 and 3. The learned Counsel submitted that, no doubt it may be urged that the calculations of loss of earnings at the rate of Rs. 10/- is too meagre, but, there is exaggeration in the evidence of PW 1. His daily income could not be more than Rs. 15/- per day. The learned Counsel further submitted that with reference to the pain and suffering Rs. 10,000/- has been awarded. It is just and proper and it does not require any enhancement. He also submitted that for loss of amenities the Tribunal has awarded Rs. 10,000/- and that amount appears to be reasonable and just and proper and it does not call for any interference. Learned counsel submitted no doubt there is something in the statement of PW 1 that a sum of Rs. 2,000/- has been spent on conveyance, but there is no documentary proof thereof. The learned Counsel for the respondents finally submitted that the total compensation awarded, i.e., Rs. 75,000/- appears to be just and proper or if at all it requires enhancement it may be only with respect to loss of earnings as the Tribunal has assessed petitioner's earnings at Rs. 10/- per day and Rs. 3,600/- per year multiplied by '14'. Otherwise, the order of the Tribunal is well and justified.
10. I have applied my mind to the contentions made by the learned Counsel for the parties, and have also been taken through the records. The persons who suffer disability on account of injuries, total or partial disabilities, carry those disabilities for their whole life. They will be subjected to suffering for the whole life from the date of occurrence till their death. Span of life is also assessed at 60 to 70 years as have been found by the Supreme Court in the case of Jyotsna Dey v. State of Assam 1987 ACJ 172 (SC). That the Apex Court has been pleased to observe that the span of life should be 70 years in view of the increase in the expectancy of life. In the case of Concord of India Insurance Co. Ltd. v. Nirmala Devi 1980 ACJ 55 (SC), the Supreme Court observed that the determination of the quantum must be liberal, not niggardly since the law values life and limb in free country in generous scales. We have to keep in mind that the person who suffers such a disability as amputation of leg which is a permanent disability or fracture of other bones resulting in disfigurement or the like he has to bear it for his whole life with the malady caused by disability or disfigurement and in such matter while assessing the compensation, a liberal approach is needed and more liberal than in cases where injuries result in death because injured has to suffer for few days in hospital and he has to suffer the malady for whole of life. Keeping these basic principles in view, in my opinion, the compensation that has been awarded appears to be insufficient and too meagre. As regards the loss of earnings, three factors have to be taken into consideration. Firstly, the age of the petitioner at the time of occurrence and as per the finding of the Tribunal the petitioner was of 32 years, while according to him as given in the petition he was of 30 years. I take 32 years to be the age of the petitioner as determined by the Tribunal that at the time of occurrence he was of 32 years. As expectancy of life is taken to be at least 60 years and not 70 years, the claimant will have to suffer and bear the malady of disability for at least 28 to 30 years. Keeping the evidence of PW 1 regarding his earnings that for about four months he used to earn at the rate of Rs. 40-45/- per day and later during sugar-cane crushing season he used to get Rs. 30/- per day and thereafter during general season his earnings would be running between Rs. 15-20/- per day, I take average income of the claimant at Rs. 20/- per day. Rs. 20/- per day will bring out the yearly loss to be Rs. 7,200/- per year. If the multiplier instead of '14' being applied, I think it would be proper to apply the multiplier of ' 15' to the yearly income, then loss of earnings may come to Rs. 1,08,500/- or so. In this view of the matter, in my opinion, the claimant can be said to be entitled to get the compensation to the tune of Rs. 1,10,000/- for loss of earnings instead of Rs. 50,000/- as awarded by the Tribunal. The appellant, as such, is held to be entitled to a sum of Rs. 1,10,000 as compensation for loss of future earnings. When I so award, I find support also from the view expressed by their Lordships of the Supreme Court in the case of Pushpa Thakur v. Union of India 1984 ACJ 559 (SC), where in cases as amputation of the right leg, their Lordships of the Supreme Court enhanced the compensation from Rs. 50,000/- to Rs. 1,00,000/-. So award of Rs. 1,10,000/- towards compensation for loss of earnings on that account appears to be justified. As regards pain and suffering the compensation which has been awarded to the tune of Rs. 10,000/- requires a marginal increase and so marginal increase is required with reference to loss of amenities. Instead of Rs. 10,000/- under each of the accounts, I think it would be proper to award the compensation to the tune of Rs. 12,500/- for pain and suffering and Rs. 12,500/- for loss of amenities. The evidence of PW 1 discloses that he has incurred an expenditure of more than Rs. 2,000/- for the conveyance as the claimant had to move to and from the hospital at times and again and the Tribunal has not taken into consideration this aspect of the matter nor this part of the evidence of PW 1.1 think it would be just and proper to award Rs. 2,500/- as compensation for expenditure towards conveyance and other charges incurred in taking to hospital etc. for times and again. With reference to medical expenditure simply the court has awarded Rs. 5,000/- but has not taken the question of assistance or attendance which was provided to the claimant and that of his nourishment also.
In such a case, I think it is proper to enhance the amount of compensation with reference to medical expenses, nourishment and attendance expenses to the tune of Rs. 7,500/- instead of Rs. 5,000/-. Thus, the total amount of compensation the claimant is entitled to is as under:
For loss of earnings(present and future) - Rs. 1,10,000/- For pain andsuffering - Rs. 12,500/-For loss of amenities - Rs. 12,500/-For conveyancecharges (i.e. to andfrom hospital) - Rs. 2,500/-For medical expenses(towards assistance,nourishment etc.) - Rs. 7,500/-----------------Thus in total - Rs. 1,45,000/-----------------
This figure of Rs. 1,45,000/- includes in itself the general and special damages. The sum that had been paid in advance to the tune of Rs. 7,500/- will be adjustable, that it shall be deductible from that amount. The interest that has been awarded at the rate of 6 per cent appears to be very low and it appears to be proper to make it 9 per cent. Now the claimant is entitled to a sum of Rs. 1,37,500/-, as the balance payable to the claimant, with interest at the rate of 9 per cent from the date of appeal up to date. The cost of the court below shall also be payable to the claimant, but the cost of appeal in this Court is made easy. It is also clarified that the liability of the insurance company is Rs. 1,50,000/- in all. The amount not covered by the policy shall in any case be recoverable from the owner of the truck and the company may not be required to indemnify that amount.
The appeal is finally disposed of as partly allowed.