L. Rath, J.
1. This appeal by the wife is directed against an award of the Second Motor Accidents Claims Tribunal, Orissa, Cuttack, seeking enhancement of compensation to the injured husband. Respondent No. 1 has also filed a cross-objection challenging the award as not sustainable insofar as it has made him liable to pay the awarded amount. The appellant lodged a claim with the tribunal on the pleading that her husband was hit while crossing the Bhubaneswar-Cuttack Road at Phulnakhara on 15-7-1981 at about 1.00 p.m. after alighting from a bus by an Ambassador car belonging to respondent No. 1 going from Cuttack side at reckless high speed without blowing horn. The car hit her husband from behind and without stopping fled away but was pursued by P.W. 7 with a motor-cyclist who got it detained near the road breakers at Pahala and left the vehicle there with the police. It is her case that the injured suffered multiple injuries, his both the legs were broken, he became useless for all purposes and being so handicapped has become a burden to all. She accordingly lodged a claim of Rs. 85,000/- as compensation. The claim was contested by the respondent No. 1 mainly contending that the Ambassador car ORO 424 belonging to him was not the car causing the accident and that on the date of the accident the car was at Balangir.
2. Since it is the case of respondent No. 1 that his vehicle ORO 424 was not the cause of the accident, it is necessary to examine such plea before considering the question of enhancement of compensation. It has been urged by Mr. S.Kr. Mohanty, learned Counsel for respondent No. 1, that the only two eye-witnesses to the occurrence, P.Ws 4 and 7, are not believable in their statement that they noted down the number of the vehicle as ORO 424 and that the injured himself also did not say about the number of the car and that another person, Ramesh Chandra Praharaj, who had taken the injured to the SCB Medical College-Hospital has not been examined. It is the evidence of P.W. 7, who is a tailor, that a Cuttack bound bus came from Bhubaneswar side and parked at the bus stop just in front of his tailoring shop. The injured Dibakar Jena gotdown from the bus and having crossed the road stood on the eastern side earthen flank of the National Highway and while standing there the Ambassador car with the registration number ORO 424 came from behind and knocked him down and without stopping fled away towards Bhubaneswar. He and a motor-cyclist who was there at the bus stop chased the car and got it detained by the police near the road breakers at Pahala overtaking it while it had slowed down. After leaving the vehicle in police custody they returned to the spot where the injured was lying with fractured legs. Such evidence of P.W. 7 almost goes unchallenged and has not been in any way shaken in cross-examination. The other witness examined by the claimant as witness to the occurrence is P.W. 4 who was said to be standing at the bus stop and saw an Ambassador car bearing registration number ORO 424 coming from Cuttack side knocking down the injured from behind and then speeding away towards Bhubaneswar. The injured suffered bruises all over his body including face and both his legs were broken. He took the injured to the SCB Medical College-Hospital at Cuttack by an ambulance van and while going to Cuttack reported the fact at the Sadar Police Station in writing. The only ground on which the evidence of the witness has been assailed is his statement of having marked the number of the car from a distance of about 300 to 400 feet. P.W. 4 has explained that after running near the injured and finding him senseless he directed his attention towards the car and noted its number. His statement about the aforesaid distance of 300 to400 feet is an eye-estimation and there is nothing in his evidence to disbelieve him that as a fact he had seen the number of the speeding vehicle. Apart from these two witnesses, another witness, P.W. 8, a truck driver, was also examined by the appellant to show that he was the driver engaged after the accident to drive the car ORO 424 from Pahala to Balangir and had left the vehicle at the residence of Ramkumar Baboo (respondent No. 1) at Balangir town and was paid Rs. 150/- by respondent No. 1 towards his wages. The evidence of this witness does not inspire much confidence since he deposed that the injured had contacted him the day before his deposition to request him to figure as a witness in the case and about twenty five days prior to that he had also met his mother at his village and had requested her to ask P.W. 8 to become a witness. He also could not explain as to how the injured could know that he had driven the vehicle to Balangir.
3. The evidence of P.Ws 4 and 7 has been assailed by Mr. Mohanty also urging that the statement of P.W. 4 was not believable since he stated to have reported the fact of . accident at the Cuttack Sadar P.S., but no record of such statement was coming forth. P.W. 7 though had stated to be the pillion rider of the motor cycle to chase the hit and run vehicle, yet could not tell the name of the motor-cyclist and no record was also coming forth from the police outpost to show a complaint to have been lodged with any constable at the Pahala outpost and that further. P.W. 7 was not a truthful witness as he had not seen the head load carried by the injured even though according to others the deceased after alighting from the bus was crossing the road with a head load. Besides, it has also been urged that the very F.I.R., Ext. 6, was lodged three days after the accident. Such objections to the evidence raised before the tribunal, have been repelled with cogent reasons which I do not want to reiterate here, since I find myself in agreement with the same. It was held in : [1967]1SCR93 Girijanandini Devi and Ors. v. Bijendra Narain Choudhury that where the appellate Court agrees with the analysis of evidence by the lower Court, it is not necessary for it to repeat the details of the evidence and that only a general indication of the agreement will suffice.
4. As regards the evidence led by the respondent No. 1, the same principles decided by the Supreme Court apply. Respondent No. 1 examined three witnesses to establish his case that his vehicle ORO 424 was at Balangir at the time of the accident. It has been found by the tribunal that the respondent No. 1 appeared in the proceeding on 9-7-1982 and filed a cryptic written statement on 6-12-1982 that his vehicle ORO 424 never meet with any accident on 15-7-1981 as alleged in the claim petition and that on that date it was at Balangir. Only after the evidence of the appellant was over on 11 -7-1984, he led evidence disclosing for the first time on 4-8-1984 that the vehicle was on the date of the accident in the garage of O.P.W. 1. Absolutely no explanation has been offered as to why the fact that the vehicle had been garaged from 24-6-1981 for two months as was sought to be proved through evidence had not been pleaded in the written statement. The tribunal found that the counsel who had been engaged by respondent No. 1 in the proceeding was a prominent lawyer of experience and that it was but natural that such fact of the vehicle having been in the garage for repair at the relevant time, if had been informed to him, would have been pleaded in the written statement. From such fact, it was found by the tribunal that an inference arises that the defence to be adopted by respondent No. 1 was carefully kept suppressed so as to avoid any attempt by the appellant to verify the veracity of such stand. The learned tribunal also found the evidence of O.P. W. 1, the owner of the garage, to be not believable and the register Ext. A maintained by him in respect of the vehicles entrusted to him for repair as not a credible document, the same being not serially page-marked, the serial numbers of the entries being not maintained and further the entry Ext. A/1 of 24-6-1981 having been followed by an entry dated 7-4-1981. Likewise, the evidence of O.P.W. 3 who was examined to corroborate the version of O.P.W. 1 has also been disbelieved since though he had gone to the garage of O.P.W. 1 to get his motor cycle repaired which had met with an accident, yet there was no entry in Ext. A regarding it and there was also no police report to support such story of the accident. Besides, the witness is also a grain-dealer like that of the respondent No. 1. The tribunal also found some intrinsic evidence of conduct on the part of respondent No. 1 to suggest that attempts had been made to regularise the insurance of the vehicle up to the time of the accident. The entries in the registration certificate, Ext. 8, show that the vehicle had no valid insurance till 31-3-1981 when the entries were made. Thereafter, entries were made on 24-7-1981 to show that the insurance was valid till 22-7-1982 which would show that the insurance was valid till 22-7-1982 which would show that the insurance premium was paid after the accident. Generally for such reasons and otherwise I would hold, in agreement with the learned tribunal, that it is the vehicle ORO 424 belonging to respondent No. 1 which had caused the accident and hence the cross-objection of the respondent No. 1 must be rejected.;
5. The learned tribunal while holding the vehicle to be the one which had hit the injured, came to the conclusion that Phulnakhara being a thickly populated locality and since the road bifurcates there to go to Niali, a famous betel-leaf centre, and the width of the road there being about fifty cubits, the injured had to be more vigilant while crossing the road and had he been more careful he could have avoided the accident. Coming to such finding he held that the injured had contributory negligence of 20% for the accident. I do not think that there is any support in the evidence for such opinion reached by the tribunal. In the first place respondent No. 1 never pleaded any contributory negligence on the part of the injured and secondly the learned tribunal has also not referred to any evidence to justify his conclusion. Since Phulnakhara is a busy crossing and besides the road is straight and the time of the accident was 1.00 p.m., not only the car had a duty to slow down to avoid the accident but also must have sighted the injured from quite a distance and thus had sufficient scope and opportunity to avoid the collision. In that view of the matter, such finding of the learned tribunal cannot be justified.
6. As regards the quantum of compensation payable, it is worthwhile to extract the medical evidence of the doctor P. W. 1 regarding the injuries suffered by the injured as was also accepted by the tribunal. The witness deposed:
'The tibia and fibula of both of his legs had suffered fracture-communated. The right side leg was bearing a punctured wound. The tibia and fibula fractures on his left leg are mal-united and for that he has to limp for his life. We had operated upon his right leg to insert nails and set bone. The bone into which we had driven a nail has got infected and pus is coming out now. He is neglecting treatment, but he has come. His right knee is now stiff beyond 90 degrees. He is able to walk now with the aid of crutch. It may take one year or more than that to stop the pus formation. For the rest of his life the claimant cannot walk without the assistance of a stick or a crutch. He is unfit for hard labour. He cannot pedal a bicycle. During the period of his hospitalisation he might have spent about Rs. 1,000/- over medicines and special food. We had discharged him putting his legs under plaster cast. The nail that had been driven into the bone is yet to be removed. He needs not less than Rs. 2,000/- for his further treatment. He must be bearing pain since the bone has got infected.... If the pus cells of the bone are removed and the mal-adjustment of the left leg is corrected he may be able to walk normally. Rs. 10,000/- will be needed for making him to walk normally.
The tribunal assessed the special damages, the money actually spent on his treatment, at Rs. 4,000/- and Rs. 5,000/- as damages towards pain and suffering since the injuries were still oozing pus. Besides, it awarded Rs. 10,000/- towards his future medical expenses as was opined by the doctor to be necessary to be spent for exploring the possibility of his walking again normally. Towards loss of income, the tribunal assessed Rs. 300/- as the monthly income of the injured and held that his loss of earning capacity was to the extent of 90%, drawing analogy from the provisions of the Workmen's Compensation Act under which loss of a leg is taken as 90% loss of the income and also concluded that the injured had effective fifteen years more for earning as he was, by the time of the accident, forty five years' old. Coming to such view, it held that sum of Rs. 10,000/- put in fixed deposit in a bank for fifteen years would compensate' him for his loss of mobility and that a sum of Rs. 20,000/- would adequately compensate the injured for his loss of income. Thus, according to the tribunal, the total compensation was calculated at Rs. 41,000/- out of which, because of 20% contributory negligence of the injured, the compensation was calculated at Rs. 32,000/- and since certain sum is usually deducted for lump sum payment, it awarded Rs* 25,000/- as the net compensation payable to the claimant. Out of the sum, the tribunal directed freezing a sum of Rs. 10,000/- for ten years and Anr. sum of Rs. 10,000/- for six months in a scheduled bank as unencumberable fixed deposit for the benefit of interest and to secure medical help.
7. I cannot but observe that the compensation so determined is rather niggardly and wholly inadequate. It was observed by Justice Krishna Iyer in 1980 ACJ 435 N.K.V. Bros.(P) Ltd. v. M. Karumai Ammal and Ors.:
'Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa liquitor. Accident Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here and some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the state must seriously consider no-fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by Tribunals. We must remember that judicial that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation.
8. It has been held by a decision of this Court in 1980 TAC 390 P.K. Panda v. Smt. Pretnalata Choudhury and Ors. that the average span of life is 65 years on the basis of which compensation was calculated. In 1987 ACJ 1020 National Insurance Co. Ltd. v. Bhramar Rout and others the life expectancy was held to be 70 years and in 1987 AC J172 Jyotsna Dey and Ors. v. State of Assam and others decided by the Supreme Court, the life expectancy was held to be also 70 years. I would thus-hold that the injured could have effectively earned up to the age of 65 years and calculating 90% loss of his monthly income of Rs. 300/-, the total loss suffered by him comes to Rs. 64,800/-. Such sum together with the sum of Rs. 19,000/-awarded by the tribunal as special damages, damages for pain and suffering and damages for future medical aid comes to Rs. 83,800/-. Deducting from such Sum l/6th for lump sum payment, uncertainties of life and other imponderable factors, the sum payable becomes Rs. 69,833/- which can be rounded off to Rs. 69,000/-. Since a period of eight years has already elapsed from the date of the accident, there is no need to keep any amount out of the compensation out of the reach of the claimant freeze in any bank. The amount thus becomes payable together with interest to the claimant by respondent No. 1 as directed by the tribunal.
The Misc. Appeal is accordingly allowed with costs.