Hari Nath Tilhari, J.
1. These two appeals arise from the judgment and award dated 7.4.99 delivered by M.A.C.T., Belgaum (Prl. Civil Judge) in M.V.C. No. 988 of 1995 whereby Tribunal has awarded in total a sum of Rs. 3,03,000 with interest at the rate of 6 per cent per annum.
2. The facts of the case in the nutshell are that on 16.2.1995 the claimant-injured was travelling in K.S.R.T.C, bus bearing registration No. KA 25-F 713 from Mod-age village towards Belgaum, after attending the jatra of Goddess Bhaveshwari at Modage village and the said bus was full of passengers. At about 9.30 a.m. the said bus when coming on the Puna-Bangalore National Highway Road near Managutti Cross, the driver of the said bus respondent No. 1 was driving the bus at a very high speed and in a rash and negligent manner. As a result of driving of the bus in a rash and negligent manner, driver lost control over his vehicle and the said K.S.R.T.C. bus went and dashed against stationary truck bearing registration No. TAB 9956 which was parked on the eastern side of the said National Highway on the kucha road, as a result thereof the said stationary truck went ahead and dashed against another stationary truck which was parked in front of the said truck bearing No. TN 28-7-2509 and as a result of it, the left side portion of the bus was brushed to the said truck with forceful impact. That as a result of accident the passengers sitting on the left side of the said bus including this petitioner sustained grievous injuries and one of the cleaner standing by the side of the truck and two others died in the said accident and 10 to 15 other persons who were passengers of the said bus sustained grievous injuries. It is the case of the petitioner that he sustained multiple grievous injuries referred to in petition and immediately after the accident, the injured was taken to the District Hospital, Belgaum and due to non-availability of emergency medicines and medical facilities, this injured petitioner was shifted to KLE Society's Hospital, Belgaum, where he was admitted as an indoor patient for a total period of 84 days during which period his left arm was amputated at the shoulder level and had undergone several operations and steel rods, K.nails were inserted. According to the claimant, till the date of filing the claim petition, he had spent a sum of Rs. 75,000 and thereafter he had to incur medical expenses, that in spite of prolonged treatment, the petitioner could not recover and has been subjected to suffer permanent disability. The claimant alleged his age to be 31 years and claimed to have been studying in B.Com. 3rd year at that time. According to the claimant, he was running Video Cassette Library and also doing film distribution and exhibition under partnership and was earning Rs. 8,000 p.m. The claimant's case is that due to permanent disability he is now not able to work and has suffered the loss of earning capacity and, therefore, claimed compensation of Rs. 11,25,000, the details of which have been given in the claim petition as the compensation payable from respondent Nos. 1 to 3, who were driver, owner and insurer of the K.S.R.T.C. bus. Initially, the driver, owner and insurer of truck involved in the accident were not impleaded and later on they were also impleaded. On notice being issued to the respondents, objections were filed by respondent Nos. 2 and 3 representing the K.S.R.T.C. The respondent No. 5 insurer of the vehicle bearing No. TAB 9956 has also filed his objections controverting the allegations. Similarly, respondent Nos. 6 and 7 in the claim petition who are owner and insurer of the truck in question also filed their statement of objections. It may be mentioned here that the claimant did not press his claim against the driver of K.S.R.T.C. bus. Respondent Nos. 2 and 3 did not dispute the accident in question, but they denied the allegations of the claim petitioner that accident has occurred solely on account of rash and negligent driving of the K.S.R.T.C. bus by its driver. It is the case of respondent No. 2 that its driver respondent No. 1 was an experienced driver and that the bus was being driven with care and caution, but the said bus was following the truck bearing No. TAB 9956 keeping a safe distance. According to the case of respondent Nos. 2 and 3, at the material time of the accident, driver of the said truck suddenly and abruptly stopped the truck without giving any signal or indication and without reducing speed to avoid dashing against another truck which was going ahead of the said truck, as a result, the said truck came in reverse with speed and dashed to the bus and after dashing against the said truck, the said truck went ahead and dashed to the truck going ahead of it and, therefore, the accident in question was solely due to rash and negligent driving of the truck bearing registration No. TAB 9956 by its driver and that there was no negligence at all on the part of the driver of the K.S.R.T.C. bus. Respondent Nos. 2 and 3 before the Tribunal who are the present appellants before this Court asserted that they are not liable to pay compensation to the petitioner-claimant. Respondents denied the occupation and income of the petitioner and asserted that the same is false and baseless. They also denied that the petitioner-claimant has sustained multiple grievous injuries and was in the hospital. They denied the amount of compensation claimed and stated that the same is exorbitant and excessive. The insurer of the vehicle TAB 9956 as mentioned earlier, filed his objections controverting the material allegations made in the claim petition. The respondent No. 5 asserted that accident in question has been solely due to rash and negligent driving of K.S.R.T.C. bus by its driver, as the said bus came and dashed with truck, which was parked completely on the left side of the kucha road on the said highway. Respondent Nos. 6 and 7 asserted before the Tribunal that accident in question has occurred solely on account of rash and negligent driving of the K.S.R.T.C. bus and no rashness can be attributed against the driver of the truck and so, the claim against them is liable to be dismissed.
3. On the basis of the pleadings of parties, Tribunal framed the following issues:
(1) Whether the petitioner proves the alleged accident occurred due to rash and negligent driving of the respondent No. 1 driver of the bus KA 25-F 713 belonging to the respondent Nos. 2 and 3?
(2) Whether the petitioner proves that he suffered bodily injuries in the accident?
(3) Whether the respondent Nos. 2 and 3 prove that the petition is not maintainable due to not impleading the owners and insurers of other two trucks?
(4) Whether the petitioner is entitled for compensation and if so to what extent?
(5) What order?
4. After having appreciated the evidence of the parties, the Tribunal answered issue Nos. 1, 2 and 4 in the affirmative. Tribunal held that the claimant-petitioner proved that the accident being questioned did occur on account of rash and negligent driving of K.S.R.T.C. bus bearing registration No. KA 25-F 713 by respondent No. 1 driver and bus belonging to respondent Nos. 2 and 3. The Tribunal further held that the claimant-petitioner proved that he suffered grievous injuries on account of the said accident. It further found that respondent Nos. 2 and 3 before it failed to establish that the petition was not maintainable due to non-impalement of the owners and insurers of the truck. It observed that owner and insurer of the truck had already been impleaded and held that the petition could not be held to be not maintainable. The Tribunal further found that the claimant suffered various injuries as per the evidence of the doctor as under:
(1) Head injury.
(2) Crush injury to the left shoulder with auto amputation of left upper limb.
(3) Comminuted fracture of left femur.
(4) Intra-particular fracture of right femur.
(5) Fracture of mandibula (jaw).
(6) Multiple cut lacerated wounds over thigh, face and left leg.
5. The Tribunal has opined that the permanent disability that has been caused to the claimant-petitioner can be said to have been 25 per cent. The Tribunal awarded Rs. 50,000 towards the injuries, pain and suffering, Rs. 1,20,000 towards medical expenses and other charges, Rs. 50,000 for loss of amenities and enjoyment of future life and Rs. 1,08,000 towards loss of future earnings and earning capacity. Thus, the Tribunal awarded a total compensation of Rs. 3,28,000. It further observed that as the claimant had already been paid Rs. 25,000 together with interest at 6 per cent per annum from the date of filing the petition till the date of payment of the amount, under Section 140 of the Motor Vehicles Act. After deducting the same, the claimant was held to be entitled to get a sum of Rs. 3,03,000 which was opined by the Tribunal to be just and reasonable compensation. It awarded interest at the rate of 6 per cent per annum till the date of payment. Feeling aggrieved from this award as mentioned earlier, respondent Nos. 2 and 3, i.e., General Manager of K.S.R.T.C. and the Manager of Internal Insurance Fund have come up before this Court by way of Appeal No. 3942 of 1999. The injured being dissatisfied with the amount awarded has also come up before this Court by filing Appeal No. 3979 of 1999. Appeal No. 3979 of 1999 is the appeal by claimant for enhancement of compensation, while M.F.A. No. 3942 of 1999 is the appeal filed by K.S.R.T.C. and the Insurance Fund challenging the liability which has been fastened on them as well as the quantum of compensation awarded.
6. We have heard Mr. R.V. Jaya-prakash, learned Counsel appearing for the Corporation in Appeal No. 3942 of 1999 and Mrs. Sona Vakkund, learned Counsel appearing for respondent in Appeal No. 3942 of 1999 as well as the counsel for the appellant in Appeal No. 3979 of 1999. We have heard Mr. F.S. Dabali, the learned Counsel on behalf of the Corporation, respondent in Appeal No. 3979 of 1999.
7. With reference to Appeal No. 3942 of 1999, it has been contended on behalf of the appellant Corporation that the finding of the Tribunal that the accident had occurred solely due to rash and negligent driving of the K.S.R.T.C. bus by its driver, the respondent No. 1 before the Tribunal, is erroneous in law. The contention of the learned Counsel appearing for K.S.R.T.C. has hotly been contested by Mrs. Sona Vakkund. It has been contended that the K.S.R.T.C. itself has not examined its driver, who could at best depose the nature of the accident. On behalf of the appellant, it has been contended that there were many passengers, who could have been examined, but no passenger has been examined to establish the nature and cause of accident. According to the facts of the case, the trucks were standing on the side and the bus dashed against the two trucks. This has been found on the basis of the oral evidence of PW 1 as well as on perusal of Exhs. P-1 and P-2. The evidence produced to prove negligence on the part of the driver of K.S.R.T.C. bus shows that burden was on the present appellant who was respondent before the Tribunal, i.e., K.S.R.T.C. to have proved that cause for the accident was negligence on the part of the drivers of both the trucks or contributory negligence on the part of the drivers of the truck and the burden was on them to lead the evidence. In that case, the driver of the bus ought to have been examined and ought to have been put in witness-box to allow the parties to cross-examine. But, K.S.R.T.C. the present appellant did not produce the bus driver. The bus driver was their own employee who was under their own control. If the appellants had produced the K.S.R.T.C. bus driver for examination, he would have been a good witness on behalf of the present appellant, i.e., K.S.R.T.C. No doubt on cross-examination, the correctness of the statement could have been tested. No reason has been given as to why the present appellants, i.e., respondent Nos. 2 and 3 before Tribunal did not produce the driver of the bus, who was their own employee. It is one of the well settled principles of law under Section 114 of the Evidence Act that when a party is in possession of witness or evidence and it does not produce it without any eligible or reasonable explanation, cause, rhyme or reason and without any explanation the Tribunal should draw an adverse inference to the effect on that witness being examined and cross-examined, it would have gone against the case of the parties failing to produce that witness. Thus, in our opinion, not only the oral evidence of PWs 1 and 2, but also the presumption under Section 114(g) of the Evidence Act, taken together with the circumstantial evidence establish that the theory set up by K.S.R.T.C. that the accident did take place due to negligence of the truck has been falsified and the case pleaded by the claimant has been correct. This being the position, we are of the opinion that the finding recorded by the Tribunal is correct and the contention raised challenging the finding is without substance and merits. Once we have found that the cause as has been held by the Tribunal that the accident in question was due to the sole negligence of the driver of the K.S.R.T.C. bus then the respondent Nos. 1 and 2 before the Tribunal, i.e., appellants in Appeal No. 3942 of 1999 are liable to pay compensation in entirety to the claimants. In view of the above finding, the first contention is rejected.
8. As regards the question of quantum of compensation to be awarded is to be taken note of and it will be appropriate to mention that the claimant has suffered grievous injuries. PW 2 Dr. Babu Basavantappa Putti, Professor and Head of the Orthopaedic Dept. of J.N. Medical College & KLE Society's Hospital, Belgaum, has stated that the claimant has suffered the following injuries:
(1) Head injury.
(2) Crush injury to the left shoulder with auto amputation of left upper limb.
(3) Comminuted fracture left femur.
(4) Intra-particular fracture of right tibia.
(5) Fracture of mandibula (jaw).
(6) Multiple cut lacerated wounds over thigh, face and left leg.
It has also come in his evidence that the claimant had to remain in hospital as in-patient for a period of four months.
9. The Tribunal on the basis of the cash memos filed by the claimant has found that a sum of Rs. 1,14,509 had been spent by the injured towards medical expenses. The Tribunal in our opinion rightly awarded a sum of Rs. 1,20,000 towards medical expenses and other incidental charges and the same cannot be said to be excessive. The claimant in his evidence has stated his monthly income as Rs. 10,000 but keeping in view the entire fact that the injured had not produced any evidence as to whether he was an income-tax payer, the Tribunal did not accept his income to be Rs. 10,000 and has assessed his income as Rs. 2,500 p.m. No doubt income-tax returns have been filed to show that income of the claimant was more than Rs. 60,000 p.a. We are of the opinion that assumption of monthly income of the claimant as Rs. 2,500 would not be justified. It ought to have taken the monthly income to be Rs. 3,000 instead of Rs. 10,000 or Rs. 2,500. The doctor who is examined as PW 2 has stated that the permanent disability caused by amputation of the left upper limb at shoulder level has resulted disability to the extent of 75 per cent. The Tribunal has taken it to be 25 per cent and has opined that since the claimant was not doing any manual or hard work earlier to the accident and the nature of the avocation as such he can carry on his business without any difficulty, so, the loss of permanent disability to be assessed is 25 per cent and not at 75 per cent. That under Motor Vehicles Act, 1988 as per Second Schedule with reference to Section 163A of the Act as amended by Act 54 of 1994, it is mentioned that under Clause (b) in case of permanent disability suffered, percentage of compensation which would have been payable in case of permanent total disablement as specified under item 'a' above. Thereafter it is mentioned that injuries, resulting in permanent disablement, the percentage of loss of earning capacity shall be as per the Schedule I under Workmen's Compensation Act. It has also been provided that injuries which result in permanent or partial disablement, the percentage shall be taken as mentioned in the Workmen's Compensation Act. Therefore, in a case where there has been loss of left forearm and where the leg has to be amputated and it has been got cut, the loss of earning capacity has been mentioned as 90 per cent. It appears that the Tribunal as well as the learned Counsel for the parties failed to take note of this clause. When the law provides a deeming clause, the permanent total disablement, such case has to be taken as first under the Schedule of Workmen's Compensation Act. So, we are bound to take the loss of earning capacity to that extent. In this view of the matter in our opinion, Tribunal committed an error of law in taking the rate of loss of earning capacity to be 25 per cent and that the appropriate income of the claimant should be taken as Rs. 3,000 p.m. So, if the income of the claimant is Rs. 36,000 per annum then 90 per cent of the same would be Rs. 32,400. If the monthly income of the claimant is Rs. 3,000, the annual income would come to Rs. 36,000 and there being 90 per cent loss of earning capacity as per the law laid down under the Motor Vehicles Act, 1988 and the Schedule of the Workmen's Compensation Act, the yearly loss would come to Rs. 32,400. The said amount having been multiplied by multiplier of 15' as adopted by the Tribunal, the total loss of future earnings comes to Rs. 4,86,000. The award of Rs. 1,20,000 towards medical and incidental charges is justified. The award of Rs. 50,000 towards loss of amenities and enjoyment of future life appears to be justified. There have been multiple injuries on the head and three fractures on both legs and arm and also on the face and on mandibula (jaw) and the claimant has been in hospital for a period of 4 months, the award of Rs. 50,000 towards injuries, pain and suffering appears to be on the lower side. We are of the opinion that claimant should have been awarded Rs. 75,000 under that head. Taking all together, the claimant may be said to be entitled to a sum of Rs. 7,31,000 rounded off to Rs. 7,30,000 (rupees seven lakh thirty thousand only). Thus, we are of the view that the contention made on behalf of the claimant-appellant that the compensation awarded by the Tribunal was on the lower side is justified and that the contention raised on behalf of the K.S.R.T.C. that compensation awarded is excessive is unjustified and has to be rejected and the contention of the counsel for the claimant-appellant is accepted. Thus, in our view, the claimant has been entitled to a sum of Rs. 7,30,000 as total compensation. With regard to the rate of interest, learned Counsel for the appellant contended that the Tribunal had awarded interest at the rate of 6 per cent and the same is on the lower side. The learned Counsel for the appellant contended that the interest should have been awarded at 12 per cent per annum and on behalf of the K.S.R.T.C. it has been strenuously argued that the award of interest at 6 per cent has been taken to be justified and is justified. There have been catena of cases of the Supreme Court where their Lordships of the Apex Court had awarded interest at the rate of 12 per cent per annum and no doubt there are some cases of this Court where 6 per cent of the interest taken has been justified. In a recent decision of Apex Court in Kaushnuma Begum v. New India Assurance Co. Ltd. : [2001]1SCR8 , their Lordships of the Apex Court expressed the view that award of 9 per cent interest would be justified and proper in the present context and this view appears to be appropriate to certain extent where in a set of decisions of this Court , this Court has also expressed that interest at the rate of 9 per cent is justified to be awarded. In the case of Kaushnuma Begum (supra), their Lordships observed in para 23 as under:
Now, we have to fix up the rate of interest. Section 171 of the Motor Vehicles Act empowers the Tribunal to direct that 'in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as may be specified in this behalf. Earlier, 12 per cent was found to be the reasonable rate of simple interest. With a change in economy and the policy of the Reserve Bank of India the interest rate has been lowered. The nationalised banks are now granting interest at the rate of 9 per cent on the fixed deposits for one year. We, therefore, direct that the compensation amount fixed hereinbefore shall bear interest at the rate of 9 per cent per annum from the date of the claim made by the appellants.
10. In view of this latest decision of the Supreme Court regarding rate of interest, we find that the award of interest at 6 per cent is on the lower side and the claim of 12 per cent is on the higher side and the appropriate rate for interest to be awarded is at the rate of 9 per cent per annum on the amount of compensation as assessed by us from the date of petition till the date of payment.
11. Thus, M.F.A. No. 3979 of 1999 is hereby allowed and it is held that claimant is entitled and is awarded total compensation as round figure of Rs. 7,30,000 (rupees seven lakh thirty thousand only) with interest at 9 per cent per annum from the date of application till the date of payment. Both the parties are directed to bear their respective costs.
12: M.F.A. No. 3942 of 1999 filed by General Manager, K.S.R.T.C., is hereby dismissed as being without merits. Parties shall bear their respective costs.
13. Out of the total amount of compensation and interest awarded up-to-date, 3/4th of the amount shall be invested in the interest earning securities run by the State Government or any nationalised bank for a period of five years. The interest earned thereon shall be payable to the claimant-appellant once in three months. 25 per cent of the award of compensation and the interest accrued shall be paid to the claimant by bank draft in the name of the claimant-appellant. The amount deposited in M.F.A. No. 3942 of 1999 shall be sent to the Tribunal for being disbursed to the claimant.