P.D. Desai, J.
1 to 12. x x x
13. This is the entire material on record relating to the injury suffered by the appellant and Its after-effects. There is no manner of doubt that despite the intensive treatment received by the appellant the after-effects of the accident have unfortunately persisted. There were two periods of hospitalization and prolonged treatment as an outdoor patient. Even then, nearly six months after the date of the accident, Dr. Gandhi noticed that there was mention at the site of the wound. On accosting of akin grafting there were multiple ulcera tiorm According to Dr Patel, who examined the appellant nearly one year and eight months after the accident, ulcers were still present and there was a distinct possibility that the skin-scar would break down from time to time giving rise to ulcerations and infection. Be it noted in this connection that even the Tribunal, when it heard the arguments in the case in March 1974, that is to say nearly two years after the date of the accident, found ulcerations which were noticed by Dr. Patel. Even on that date the appellant was required to apply bandage to the injured foot. There was swelling and it was found that there was complication in the injury. Besides, according to Dr. Patel, when he examined the appellant it was found that he was walking with a limp and had no push-off. There was stiffness in the right toe. There was also permanent deformity in the second toe. According to Dr. Patel, the appellant could squat, but he would not be in a position to run. The limp was a permanent feature. There was every possibility of recurrence of pain in the foot and the movement of the limb was likely to be painful. In this connection, it is required to be noted that even the Tribunal had found that the appellant was not able to walk nor was he able to lay weight on the injured foot and that he could not walk without pain. The permanent disability, according to Dr. Patel, was in the range of 25 to 309o'. The incapacity, of course, was confined to the lower limb. However, it was bound to have its effect on the entire functioning of the body and, according to Dr. Patel, if the appellant wanted to work as Foreman or mechanic, the permanent disability as calculated under the Workmen's Compensation Act would be to the tune Of 15 to 18%'.
14. The preceding discussion would show that the appellant, who was at the material time aged about 15, has not only suffered an injury of a permanent nature considerably disabling him from carrying out his chosen avocation in life but the injury has also resulted in a complication in the nature of recurrence of infection at the site of the wound. For his whole life, which can at least be estimated to be 50 to 55 years, the appellant will have to live not only under considerable physical handicap as a result of the weakness of the right foot flowing out of the limp, stiffness, lack of push off, incapacity to lay weight, but also to suffer constant pain and recurrence of infection. In arriving at the true estimate of damages, this feature will have to be constantly borne in mind.
15 to 17. x X x x x
18. We are of the view that the Tribunal was in error in refusing the claim of the appellant under the head of medical treatment etc. in the face of the totality of evidence on record. There is ample evidence including independent evidence which establishes that the appellant had to undergo prolonged treatment as an outdoor patient and for that purpose he was required to be taken to the hospital. From this established fact it would be legitimate to infer that expenditure must have been incurred both on transportation - and medicine besides other items such as nutritive diet, etc. There is direct oral evidence to this effect and it ought to have been accepted. To expect a person like the appellant's father to maintain accounts in relation to expenditure incurred under this head is to ask for too much, especially when the claim is of a modest sum of Rs. 500. In such matters the Tribunal would be justified in making a reasonable estimate on probabilities and worldly experience. In our opinion, on the facts and in the circumstances of the case, the claim under this head ought to have been sustained in its entirety. The appellant would, therefore, be entitled to compensation in the sum of Rs. 500 under this head.
19. The next item of claim relates to loss of earning in the sum of Rs. 600 suffered by the appellant's father during the time that he was attending upon the appellant while he was in the hospital and thereafter. In the claim petition, it was stated that the appellant's father was plying auto-rickshaw and that during the period of the appellant's hospitalisation extending to one month and for a period of one month thereafter the appellant's father could not ply the rickshaw and on that account he had suffered a loss of Rs. 600. Premjibh4 Ex. 24, has in terms deposed that he used to earn about Rs. 300 per month by plying an auto-rickshaw on hire and that he could not do this work for a period of two months. On that account, he had suffered a loss in the sum of Rs. 600. It is significant to note that there is no cross-examination of Premjibhai on this point. In other words, the version of the witness on this aspect of the case has gone unchallenged. One should have thought that in this state of evidence the Tribunal would uphold the claim and make a full award. However, the Tribunal found a legal difficulty in its way in making the award and on that ground it rejected the claim. According to the Tribunal since this was not an item of economic loss suffered by the appellant, it could not be allowed in a claim petition filed by him. It is for that reason that the Tribunal rejected the claim. The question is whether the Tribunal was right in law in. taking the view that it did. Our attention has not been drawn to any Indian decision this point and, we must, therefore, derive assist mice from the law developed in England on this aspect of the case.
20. It is axiomatic that a, benefaction may come w an injured person not in money but in kind In particular, relatives may provide the required attendance and in that manner save the expenses of a paid nurse and the like. Two questions often arise in relation to such voluntary services. First, is the injured person entitled to claim that he be awarded damages based on the value of the attendance which has been rendered to him by such third parties without charge? ~Second, is the injured person entitled to recover such damages on the basis of the expenses and loss of earnings of third parties rendering gratuitous service to him? To a legally trained mind it might appear at first blush that damages cannot be awarded unless the injured person was legally liable to pay for the services or reimburse the third party for his expenses and loss. Only then will it be his loss for which damages can be awarded. The question is, is this view well founded?
21. For a long period in the past, English Courts refused to award plaintiff damages where a relative or friend had rendered necessary services such as nursing to him when he received injuries by the tortious act of the defendant. With passage of years, however, the judicial approach has changed. It is now well settled that a plaintiff is entitled to claim damages in respect of services provided by a third party, which were reasonably required by the plaintiff because of his physical needs attributable to the accident, and the question whether he was under a moral or contractual obligation to pay for the services is held to ' be irrelevant; the amount of the loss is the proper and reasonable cost of supplying the plaintiff's need (see Halsbury's Laws of England, Fourth ' Edition, Para 1153 at page 452). In the Quantum of Damages in Personal Injury and Fatal Accident Claims, by Kemp and Kemp, Fourth Edition, Vol. 1 at page 114, it has been pointed out that if services which are reasonably required by a disabled plaintiff are rendered for him gratuitously by a wife, relatives or friend, the person rendering such services is entitled to be compensated; the plaintiff can recover damages for the value of the services and must hold such damages in trust for the person who rendered the services to him. It is not necessary that the plaintiff should have entered into a binding legal agreement to pay for the services. The Observations, both in Halsbury and Kemp and Kemp, are based on judicial dicta to which we will now refer.
22. The primary authority on the point is Roach v. Yates (1938) 1 KB 257, a decision of the Court of Appeal. In that case, the plaintiff had been gravely injured. His wife and sister-in-law had devoted themselves to nursing him; both of them had given up employment for that purpose. The wife and sister-in-law intended to continue to give their services for the future as long as they could. Therefore, the value of the services was also brought in as an element in the claim for general damages in respect of the future loss by the plaintiff. There was no suggestion of any agreement between the two ladies and the plaintiff that he would reimburse them. The plaintiff was held entitled to recover the special damages, and it was also held that the plaintiff's general damages, in relation to future expenses of attendance and nursing, should be calculated at & 3 a week (that being the Weekly amount of lost wages of both the ladies), despite the fact that those services were, it was known, going to continue to be voluntarily rendered by the ladies for as long as they could continue to do so. It was held that the plaintiff himself was entitled to recover damages referable to the past and future financial value of the voluntary services rendered by these 'devoted women'.
23. The next leading decision on the point is in Wattson v. Port of London Authority, (19,69) 1 Lloyd's Rep 95. That was a case in which an injured husband successfully claimed as part of his special damages the wages, which his wife had lost by giving up her work, to look after him. It appears to have been argued in that case that such expenses could not be recovered unless the plaintiff was legally liable to pay them. Megaw, J. who was trial Judge and whose decision was not challenged in any higher Court, while dealing with this line of arguments, observed:-...... a blot on the law if the law were to be such that, if a wife in those circumstances had held her husband to make a contract to repay her, he could recover damages for that amount; but if she behaves like an ordinary decent human being and does not insist upon a contract for that service, there is financial disadvantage to the plaintiff as a result.'
24. Then came the decision of the Court of Appeal in Cunningham v. Harrison, (1973) 3 VVLR 97. In that case, the plaintiff was severely injured in a road accident and on his return home from the hospital his wife nursed him devotedly until her death just before the hearing of his claim for damages for his injuries. In a proof, which she had given, the wife stated that if she were not available, it would be necessary to employ at least two women fulltime and best for him to have trained nurses. In his claim the plaintiff included a sum as and by way of remuneration for his wife's services in nursing him and also claimed future nursing expenses. Lord Denning M. R., while dealing with this claim. Observed at page 103: -
'Before dealing with this claim, I would like to consider what the position would have been if the wife had not died and had continued to look after her husband, as she had been doing. The plaintiff's advisers seem to have thought that a husband could not claim for the nursing services rendered by wife unless the husband was legally bound to pay her for them. So, on their advice ...... an agreement was signed whereby the husband agreed to pay his wife ............ in respect of her nursing services. We were told that such advice is often given by counsel in such cases as these when advising on evidence. I know the reason why such advice is given. It is because it has been said in some cases that a plaintiff can only recover for services rendered to him when he was legally liable to pay for them ............ But, I think that view is much too narrow. It seems to me that when a husband is grievously injured and is entitled to damages then it is only right and just that, if his wife renders service to him, instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer but she has rendered services necessitated by the wrongdoing, and should be compensated for ft. If she had given up paid work to look after him, he would clearly have been entitled to recover on her behalf, because the family income would have dropped by so much Even though she had not been doing paid work but only domestic duties in the house, nevertheless all extra attendance on him certainly calls for compensation.' Orr, L. J. in his concurring judgment stated in express terms that he agreed with the view of Lord Denning M. R. 4tas to the contract entered into by the plaintiff's wife.' Lawton, L.J. in his concurring judgment also observed that he had nothing to do to what Lord Denning M, R. had said on 'the remaining questions in this case' and that he agreed with him. Be it noted that Lawton, L. J. had not separately dealt with this aspect of the case and that, therefore, he too must be taken to have concurred in the view of Lord Denning M.R.
25. Last is the decision of the Court of Appeal in Donnelly v. Joyce, (1973) 3 WLR 514. That was a case in which the infant plaintiff sustained injuries to his right leg in a road accident. Although no bone was broken, there was extensive skin loss and fairly extensive skin grafting was necessary. The plaintiff was in hospital for three months and had to visit hospital daily for attention for a considerable time thereafter. There was likelihood of continuing recurrent breakdown of the skin, which would persist throughout his life. His leg required special bathing and dressing daily for some six months after discharge from hospital as an in-patient. The plaintiff's mother gave up her part-time employment, for which she was being paid F. 5.66 per week, to look after him. The plaintiff was awarded inter alia 9 147 representing the mother's loss of wages for six months. The Court of Appeal upheld the award holding that since the loss to the plaintiff caused by the defendant's wrongdoing included the existence of the need for the nursing services provided by his mother, he was entitled to recover her loss of wages of P. 147 at the proper and reasonable cost of supplying that need. It is significant to note that the Court of Appeal spoke in this case with a single voice and that this decision was rendered by Megaw, L. J. who had himself earlier decided Wattson v. Port of London Authority (19669-1 Lloyd's Rep 95) (supra). In terms, an argument similar to the reasoning adopted by the Tribunal in this case was advanced before the Court of Appeal in that case on behalf of the defendant Who urged that even assuming that the mother's services, necessarily Involving her surrender of her employment and the loss of wages for six months, were reasonably required by the plaintiff because of his physical needs directly attributable to the accident, still the infant plaintiff could not in law recover as damages the amount which his mother had lost as a result, for that was not the plaintiff's loss. This contention was emphatically and succinctly answered in one sentence, namely, that it was the plaintiff's loss and that he was entitled to recover that loss in that action. In reaching this conclusion, Megaw ' L. J. adopted the following reasoning at page 519:-
'The loss is the plaintiffs loss, The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages for the purpose of the ascertainment of the amount of his loss is the proper and reasonable cost of supplying those needs. That, in our opinion, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff's loss.'
On the question whether there must exist an agreement between the provider of the services and the plaintiff in order that the plaintiff could recover damages under this head, Megaw, IA J. observed at page 521:-
'With all respect, this, in our opinion, is erroneous doctrine. Of course, if such an agreement is made, it may be relevant to the question whether the provider can recover from the plaintiff. But it should not be, and, as we think, is not, relevant to the question of the liability of the defendant wrongdoer, its extent, of the question to whom the liability is owed. The defendant is not a party to the contract. He knows nothing of its making. It is a res inter alios acta .......Suppose that a wife has been seriously injured. Is the defendant's? Liability to depend upon whether, and if so when, the injured woman's husband, or her sister or her neighbor, had made a bargain with her, perhaps while she is lying gravely injured, that she will repay? So if you incur expenses or render services on behalf of a person who cannot contract because he is unconscious, or is a child or is mentally incapable, you do so for the financial benefit of the wrongdoer. If that were the law, it would, we think, be regrettable. Many pe6ple, we believe, would prefer that a loss should go un-compensated rather than that they should make such bargains in such circumstances. Many injured persons would be distressed at the very fact that such a bargain was asked for, even if they Understood its purpose. Many people, if they did purport to make such bargains, would not intend for one moment that, however the agreement might be phrased, it would create any legal effect in accordance with its terms: that is, the imposition of an enforceable legal liability upon the injured person. If such Were the law, legal advisers would, we believe, often be gravely embarrassed at having the duty to advise that such agreements should be made. As we believe and hold, that is not the law.'
Megaw, L. J. then referred to the various decisions bearing on the point and approvingly followed Roach v. Yates (1938-1 KB 257) and Wattson v. Port of London Authority (1969-1 Lloyd's Rep 95) (supra). The judgment was concluded with the following pronouncement:-
'In our judgment, the loss here in question on principle and authority was the infant plaintiffs loss. He is entitled to recover damages in respect of the fair and reasonable cost of the special attention necessitated by the defendant's wrongdoing. The fair and reasonable cost is the amount awarded by the Judge under this head, F. 147-1-6.'
26. This line of decisions of the English Courts clearly establishes the principle that a plaintiff is entitled to claim damages in respect of gratuitous services provided by a third party (including a close relative) which were reasonably required by the plaintiff because of his physical needs attributable to the accident. The question whether there was any contractual obligation or any legal liability to pay for the services is irrelevant, so far as the defendant and his liability are concerned. Damages are awardable in such a case on the principle that the plaintiff's loss is the existence of the need for those nursing services. The value of such loss for purposes of damages or, to put it differently, for the purpose of the ascertainment of the amount of his loss, is the fair and reasonable cost of supplying those needs. It the provider of such services gave up paid work or otherwise incurred loss of earnings and.also underwent incidental Senses to look after him, the plaintiff can recover as special damages a specified amount up to the date of the trial which is equivalent to the loss of such third party. For future attendance and nursing, if need for the same is proved and the person providing voluntary service agrees to render the same as long as he can continue to do so, the plaintiff can recover general damages at a certain years' purchase on the basis of a datum figure which will be arrived at taking into account the financial disadvantage of the third party. Even if the provider of services had not been doing paid work, but only domestic duties in the house, the plaintiff can still recover compensation for all the extra attendance on him on the basis of proper and reasonable cost of supplying those needs. The compensation in such a case would also be referable to the past and future financial value of the voluntary services rendered by such devoted provider and the measure of damages will require to be worked out in the like manner as In the other case.
27. Once this legal position is appre4dated, it would be immediately found that the Tribunal's view in the instant case and the question of law under consideration was entirely erroneous. Here too was an injured person' Who claimed damages to the extent of Rs. 600/- a small sum indeed for the services reasonably required by himself rendered albeit gratuitously by his father while he was hospitalized and for a period of one month thereafter. It is true that there was no legal obligation on the part of the father to render such services nor any contract between him and the appellant to reimburse him. It is equally true that any father; would have rendered such services even without being remunerated. That, however, is a matter of no consequence, so far as the respondents' liability is concerned. As pointed out by Megaw, L. J. in Donnelly, (1973-3 WLR 514) the question from whit source the plaintiff's needs have been met, the question who has given the services, the question whether or not the claimant was under a legal or a moral liability to repay are, 80 far as the tortfeasor is concerned all irrelevant. This is a case in which the claimant has proved that in rendering the services the need for which arose on amount of the accident the father actually suffered pecuniary loss arising out of his inability to ply his auto-rickshaw during the period in question. The 'case, therefore, is akin to Roach v. Yates, (1938-1 KB 257); Watson v. Port of London Authority (19691 Lloyds' Rep 95) and Donnelly v. Joyce (1973-3 WLR 514) where them was resultant loss of income to the persons who rendered the services and which was treated as the plaintiffs loom Even if, however, no pecuniary logs Was suffered by the father inasmuch as he was not required to give up his business or avocation, it still would not have made the slightest difference, so far as the claimant's -right to be reimbursed for the services rendered is concerned, and this stands established by the decision in Cunningham v. Harrison (1973-3 WLR 97). In our view, therefore, the appellant ought to have been awarded the Rum of Rs. 60W- which he claimed under this head as the loss sustained by him.
28. We might say apologetically that we have dwelt upon this subject at length, although the claim involved is small, because the question is one of principle and it may crop up in many cases in future when, we hope, our decision would provide guidance to the Tribunals.
29-31.X x x x
32. It was contended on behalf of the appellant that the Tribunal was in error in awarding damages for past lose of earning by taking into account only the loss sustained up to the date of the presentation of the claim petition. The argument -was that the actual pecuniary loss sustained by an injured person must be computed by ascertaining as to what he lost by way of his earning from the date of the accident till the date of the trial and that it was not proper to confine the damages to the period from the' date of the accident till the date of the presentation of the claim petition. The contention raises a pure question of law. Our attention has not been drawn to any Indian decision on the point and we must, therefore, derive some' assistance from the practice prevalent in English Courts in relation to such awards.
33. In Munkman on Damages for Per. sonal Injuries and Death, 5th Edition, it has been pointed out at page 48 that one of the heads of pecuniary loss is the deprivation of earnings or other items which would have been received but for the accident and have now been taken away and the other is the new positive burden of expenses incurred as a result of the accident. In principle, the measure of damages for pecuniary loss is the exact amount of money, which has been lost, or spent, in consequence of the injury. It is easy enough to apply this rule in the case of earnings, which have actually been lost, or expenses, which have actually been incurred, up to the date of the trial. The exact or approximate amount can be proved, and, if proved, will' be awarded as special damages.
34. In McGregor on Damages, Thirteenth Edition, at page 739, in Para. 1098 it has been observed that the plaintiff is entitled to damages for the loss of his earning capacity resulting from the injury and that this generally forms the principal head of damage in a personal injury action. Both earnings already lost. By the time of the trial and prospective loss of earnings are included. While the rules of procedure require that the past loss be pleaded as special damage and the prospective loss as general damage, there would appear to be no substantive difference between the two, the dividing line depending purely on the accident of the time that the case comes on for hearing.
35. In the Quanum of Damages in Personal Injury and Fatal Accident Claims by Kemp and Kemp, Fourth Edition, Volume 1 it has been observed at page 97 that the plaintiff is entitled to damages in respect of the earnings or profits which he has lost as the result of his injuries up to the date of the trial. Where the plaintiff is paid wages or a salary, it is usually possible to calculate this loss exactly, in which case the loss is treated as special damages. But in the case of a self employed or professional man whose earnings fluctuate the court will have to estimate this loss and award general damages in respect of it.
36. It thus appears to be the well-settled practice of English Courts t; award damages for loss of earning under two distinct heads special damages for the loss of past earning and general, damages for the loss of prospective earning. The dividing line between the two kinds of damages is the time that the case comes on for hearing and not the date of the presentation of the claim petition. There is no reason why the same practice should not be followed in our Tribunals. Of course, once this practice is adopted, the years' purchase factor or the multiplier for awarding damages for future loss of earnings will have to be selected bearing in mind inter alia that the loss of earning for the period between the date of the presentation of the petition and the date of the trial having been already provided for as special damages the period of prospective loss would pro rata stand reduced.
37. The expression 'date of the trial' is a somewhat equivocal expression and it is better to define it. It might mean either the date on which the trial commences by taking the very first step in the. Process of the trial or the date on which the recording of evidence begins or in certain cases even the date on which the judgment is delivered. It appears to us, however, that in the context of the question under consideration, the expression must mean the date on which the deposition of the injured claimant is recorded. In our country, Quite often much time elapses between the date of institution and date of decision of a claim petition. Neither of those two points of time could, therefore, be selected if justice is to be done to both sides. Besides, the last point of time by reference to which the claimant's loss of earning, if any, can be precisely and accurately worked out is the date of his deposition. A claimant when questioned in the witness-box would be able to depose as to whether or not on account of the injury suffered by him in the course Of the accident he is still unemployed. His version in that behalf can be tested by cross-examination. The Tribunal, on the basis of the evidence, would be able to reach a positive conclusion one way or the other on the said question. Therefore, in our opinion, in personal injury cases, when special damages are to be awarded in respect of actual earnings or profits which have been lost as a result of injuries, the period up to which such loss of earnings or profits has to be computed must be taken to be the date on which the deposition of the injured claimant is recorded.
38. Now, in the present case, the accident occurred on March 9, 1972. The claim petition was instituted on July 26, 1972. The deposition of the claimant was recorded on Feb. 11, 1974. On the basis of the position of law referred to earlier, the appellant would be entitled to compensation under this head from March 9, 1972 to Feb. 11, 1974 at the rate of Rs. 50/- per month. It is true that in the claim petition he has confined the claim under this head up to the period ending with Nov. 30, 1973. However, so long as the total amount to be awarded does not exceed the total amount claimed, there should be no objection in awarding higher amount under one particular head, even without amendment of the claim petition, if on the true assessment of the evidence in the light of the settled legal position, the claimant is found entitled to the same (see Babu Mansa v. The Ahmedabad Municipal Corporation, First Appeal No. 1030 of 1973 decided on April 5, 1978: (Reported in AIR 1978 Guj 134) and Bai Nanda v. Shivabhai, (1966) 7 Guj LR 662)). Therefore, the appellant would be entitled to claim compensation at the rate of Rs. 50/- per month under this head for a period of 1 year and 11 months (March 9, 1972 to Feb. 11, 1974). The compensation awardable to the appellant under this head would accordingly come to Rs, 1150/-.
39. The next item of claim which has been partly allowed concerns the computation of future pecuniary loss. x x
40x x X x x x x
It might be recalled at this stage that it was the opinion of Dr. Patel that the disability in the lower limb was to the extent of about 30% and that even if all the defects were cured; the limp would remain resulting in permanent disability to the extent of 25%. When specifically questioned with regard to the effect of the permanent partial disability on the entire functioning of the body. Dr. Patel opined that if the appellant Wanted to work as foreman or mechanic, the permanent disability, according to that is calculated under the Workmen's. Compensation Act would be to the extent of 15 % to 18 %. The Tribunal accept6d this estimate with regard to permanent disability. It then proceeded to compute the future pecuniary loss on the basis that had the appellant turned out to be a mechanic; he would have ordinarily earned at least a sum of Rs. 300/- per month and that if the permanent disability was computed at 15%, the monthly loss would have been to the tune of Rs. 45/- and the annual loss would have been to the extent of Rupees 540/-. Applying the multiplier of 15, the Tribunal arrived at the figure of Rupees 8100/- which was the award made under this head.
41. Now, it appears to us that the datum figure has not been properly and justly computed in the instant case. The Tribunal, in our opinion, misdirected itself in being guided by the table under the Workmen's Compensation Act, 1923 in assessing damages for the prospective loss of earning. As pointed out in Ranjitsingh Gopalsingh v. Meenaxiben, (1972) 13 Guj LR 1662 at page 671, the Work men's Compensation tables which are often referred to for judging the actual Extent of the loss may not be strictly relevant. In personal injury cases in situated under the Motor Vehicles Act, 1939. the Tribunal has to assess damages in the light of the evidence and:, guided by its own expertise and experience and awards in similar cases but uninhibited by any statutory formula. As pointed out in our recent judgment in Babu Mansa v. The Ahmedabad Municipal Corporation (AIR 1978 Guj 134) (supra). it is not entirely right to always make the future loss of income co-extensive with the extent of permanent disability. This is not an algebraic problem, which can be solved by any abstract formula. On the basis of the evidence as to permanent disability, whether complete or partial, an assessment must be made as to what effect such disability would have on the entire functioning of the body and how it would consequently affect the earning capacity.' The effect on the earning capacity must be judged in the light of the importance of the loss of permanently affected limb in the vocation or profession or employment of the injured person. Two illustrative cases throwing light on this aspect might be referred to.
42. In Pratap Narain Singh v. Shrinivas, AIR 1976 SC 222: (1976 Lab IC 222), which was a case under the Workmen's Compensation Act, 1923, the claimant was a carpenter who suffered injuries resulting in the amputation of his left arm above the elbow in the course of an accident which occurred while he was doing some ornamental work in a cinema hall. The Commissioner held that the claimant was a carpenter by profession and that by the loss of his left arm above the elbow, he was rendered unfit for the work of carpenter as the work of carpentry could not be done by one hand only. On the basis of the said reasoning, the Commissioner found that the claimant had lost 100% of his earning capacity and he awarded compensation on the said footing. In appeal before the Supreme Court at the instance of the owner of the cinema hall it was inter alia urged that the injury did not result in permanent total disablement of the claimant and that the Commissioner committed a gross error of law in taking that view as there was only permanent partial disablement, within the meaning of S. 2(1)(g) of the Act. The Supreme Court while rejecting the' said submission, referred to the definition of the expression 'total disablement' in S. 2(1)(1) which lays down that any disablement, whether of a temporary or permanent nature, which incapacitates a workman for all work which he was capable of performing at the time of the accident, is total disablement, and held that in view of the finding of the Commissioner, the claimant in that case was rightly held to have lost 100% of his earning capacity.
43. In Minu B. Mehta v. Balkrishna, by the Tribunal as well as the High AIR 1977 SC 1248, the injured person was a Surgeon aged about 63onthe date of the award (see M/s. Marine & General Insurance Co. Ltd.. v. Balkrishna Ramchandra, 78 Bom LR 262 at p. 266 and 268 : (AIR 1977 Bom 53 at pp. 56 and 58)). The medical evidence in that case was that as a direct result of the in jusustained during the course of the accident, there was restriction of movement of the right elbow. This disablement was certified as permanent disability to the extent of 30%. According to the medical evidence, the claimant's operative work was bound to be affected as a result of such disablement, though he would not be required to give it up totally (see page 267 of Bom. LR ): (at p. 57 of AIR). The Tribunal had come the conclusion in that case that the claimant was likely to suffer a loss of Rs. 1,26,000 for a period of seven years which was treated as the. Remainder of his life as from the date of the award. This amount was arrived at on the basis of the average of the income-tax returns for four year prior to the accident and deducting therefrom the average income for four years subsequent to the accident. The Tribunal awarded 50% of the do said amounts, that is to say, a sum of Rs. 63,000 as future pecuniary loss for the remainder of life (see page 268 of B.L.P.). In appeal, the Bombay High Court upheld the said award holding that the estimate of the future loss of the claimant by the tribunal, Which had the advantages of seeing the claimant, could not be given a compensation at the rate of unearned income, such as, interest on fixed deposits in banks and that hi loss must be determined having regard to his skill, ability, popularity and h arm caused to h is efficient functioning. The tribunal, in the opinion of the Bombay High court, had made the best efforts and tried to determine compensation in as just a manner as was possible in all the facts and the circumstances of the case (see page 269 of B.L.R.): (at p. 59 of AIR). In further appeal, before the Supreme Court, in Para 16, turned down this contend holding that it was not called upon to interfere with the quantum arrived at by the Tribunal as well a the High Court.
44. These two cases exemplify that in estimating the future loss of income the primary consideration must be the nature and extent of the disablement of the limb permanent or temporary, total or partial and its likely resultant effect the earning capacity in the chosen, avocation, profession or employment of the injured person. It is, therefore, not right to treat this problem as an abstract mathematical exercise and to make the future loss of income co-extensive with the percentage of permanent disability regardless of the other relevant considerations.
45. In view of the foregoing discussion, it would appear that the Tribunal erred in the present case in computing the net loss of future income at Rs. 45 per month. The first error has crept in on account of the Tribunal having assumed that the appellant could still have prosecuted his career as a mechanic to its ultimate end. In view of the severe handicap suffered in a vital limb of the body the appellant could not possibly l have realized his ambition of becoming a mechanic. This is not a matter of, guess-work, for; the evidence establishes that the appellant was no longer employed as a trainee mechanic on the date of the trial. The second error has the future loss of income co-extensive with the extent of personal disability without any regard to the other relevant considerations. The third error has crept in because even in judging the, disablement the Tribunal has chosen to be guided by the tables under the Workmen's Compensation Act rather than by the overall assessment of such disablement by an expert witness. In our opinion, therefore, the Tribunal's assessment of loss of future earning capacity cannot be accepted.
46. We must now proceed to assess the future pecuniary loss in light of what we have said above. We accept the estimate of the Tribunal that had the appellant not met with this unfortunate accident; he would have earned at least Rs. 300 per month as mechanic. The income likely to accrue to him from the said source, however, must be taken to have been lost to him, for; he cannot any longer aspire to become a mechanic. The appellant will now have to eke out his living by doing sundry work, which in all likelihood will bring him no more than Rs. 200 to 225 per month, even on a liberal estimate having regard to his background, equipment and handicap. The loss of prospective earning capacity must, therefore, be estimated at between Rs. 75 to 100 per month. To be precise, we estimate it at Rs. 90 per month. The annual loss. On the basis of the said figure would work out to Rs. 1080. We are in agreement with the Tribunal that having regard to the age of the appellant and all other relevant factors, the multiplier of 15 ought to have been applied. Accordingly, the award under this head should have been in the sum of Rs. 16,200 and not Rs. 8,100.
47. That leaves in the field the last three items of claim. Rs. 17,500 has been claimed as damages for pain and suffering and loss of future amenities and enjoyment of life. This amount has been claimed under two different heads, but for the purpose of discussion we will treat it as falling under a single head. Added to this is an additional KerA. of claim of Rs. 1,00 on account of the unconvinced caused to the appellant as a result of the physical deformity. This item, as indicated earlier, claimed under5 this very head. The Tribunal has awarded as against the aforesaid claim Rs. 18,500 a total sum of Rs. 12,500.
48. Damages under the head of pain and suffering and loss of amenities and enjoyment of life usually constitute a conventional sum, which is arrived at on the basis of previous judicial decisions relating to comparative severity of injuries. We recently had an occasion to consider this question in Babu Mansa v. Ahmedabad Municipal Corporation (AIR 1978 Guj 134) (supra). We have there pointed out that the particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, are reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases. The facts of this case are very much similar to the facts in that case. In that case also, we were concerned with a boy aged about 15 who had suffered an almost similar injury. In his right leg. He had developed a limp in the right leg and his permanent partial disability was assessed at 20%. We have expressed the view in that decision that the conventional amount of Rs. 10,000 for pain and suffering which was indicated in the case of Ranjitsingh v, Meenaxiben (1972-13 Guj LR 662) (supra) requires to be revised, having regard to the passage of time, in cases where an injury such as the present has been suffered by a young boy aged 15. *In that case we awarded a sum of Rs. 15,000. for pain and suffering and loss of amenities and enjoyment of life. On the basis of the reasoning adopted by us in that case and following the said decision in the present case also, in our opinion, the award under this head should be in the sum of Rs. 15,000. The Tribunal's award will accordingly have to be raised under this head also.
49. We may now summarize the effect of our decision in respect of damages under the various heads,. We will indicate in the table set out below the additional award made by us under each of the heads:~
Rs. 500 Medical treatment, special diet and transport expenses.Rs. 600 Pecuniary loss suffered by the appellant's father who had at tended upon the appellant while he was in hospital.Rs. 925 Pecuniary loss suffered by the appellant up to the date of the trial, on account of loss of earning at the rate of Rs. 50 per month.Rs. 8,100 Future pecuniary loss at the rate of Rs. 90 per month upon application of the multiplier of 15.Rs. 2,500 Pain and suffering and loss of amenities of life.Rs. 150 Damage to the bicycle.-------------------Rs. 12,775
The appellant will accordingly be entitled to additional compensation in the sum of Rs. 12,775 with interest at the rate of 67o per annum from the date of the claim petition and proportionate costs throughout. The respondents shall deposit the said amount with the Tribunal within two months. Out of the said amount, the Tribunal will arrange to have an amount of Rs. 12,000 deposited in fixed deposit with a Nationalised Bank for a period of 61 months with the condition that the appellant will not be entitled to withdraw the amount before the due date nor will it be open to him to raise any loan against the said fixed deposit without the prior permission of the Tribunal. Till the fixed deposit matures the appellant will be entitled only to receive interest accruing due from time to time, if he so desires. The balance amount will be paid over to the appellant after due identification in person. This direction is being given with the consent of the learned advocate appearing on behalf of the appellant. As this order is passed in the case of a person who has already attained majority and in respect of whom there. Is no legal requirement of keeping the amount in fixed deposit, no charges in the nature of service charges or any other charges shall be recovered by the office of the Tribunal for making the deposit or -for payment of interest or for the payment of the principal amount at the end of the period. There will be no order as to the costs of the respondents.
50. Orders accordingly.