Ahmedabad Municipal Corporation and Another vs Niranjan Ambalal Patel and Others

Desai, J.—A tragic accident left in its trial telltale after-effects on the lives of two young men and gave rise to twin claims for compensation. After the usual period of hibernation and gestation, the claims produced a common award. The offspring fell short of the expectations and aspirations of the claimants and it belied the anticipation and estimation of the adverse party. In its turn it has given birth to these quadruple appeals.

The accident occurred at 10 a.m. on September 2, 1972. The site of the accident was a spot in the vicinity of the Jyoti Sangh building on the Relief Road, Ahmedabad. The vehicles involved in the accident were a rickshaw bearing Registration No. G.T.E. 972 and a municipal bus bearing Registration No. G.T.A. 8395. The two persons who suffered injury in the, course of the accident are Niranjan, aged about 21, married and employed as a helper in the Design Department of the Calico Mills at Ahmedabad, on the date of the accident and at the date of trial, and Bharat, aged about 21, unmarried and unemployed, both on the date of the accident and at the date of trial. The two young men were travelling in the rickshaw, which was proceeding from west to east, that is to say, from Lal Darwaja side to the station side. The municipal bus was proceeding from east to west, that is to say, from the station side to Lal Darwaja side. Near the Jyoti Sangh building, there was a collision between the rickshaw and the bus and the right front side of the rickshaw took the impact of the accident. As a result of the impact, the rickshaw turned round halt a circle facing the direction exactly opposite to that in which it was proceeding and in the process it got overturned and fell on its left side.

Niranjan, who was sitting in the rickshaw on the right side, got trapped under the rickshaw, whereas Bharat, who was sitting next to him on the left side, was thrown out on the road. Both received injuries and lost consciousness soon after the accident. Niranjan received minor injuries near the right eye and over the nose and on two fingers. The major injury which he sustained, however, was a fracture of the right femur. Bharat sustained minor injury over the light knee joint. The major injury in his case, however, was on the right eye which resulted in an instantaneous loss of vision in the said eye. Niranjan was admitted in the Vadilal Sarabhai Hospital at 11.50 a.m., whereas Bharat was admitted in the said Hospital at 1-30 p.m. on the same day. Niranjan received treatment as an indoor patient in the Hospital from September 2, 1972 till September 23, 1972. During the period of his hospitalization, he was operated upon and a nail was inserted at the site of the fracture. His period of treatment as an outdoor patient continued for a period of two months after the date of his discharge from the hospital. For a period of about four months he was bedridden and for a period of about 21/2 months thereafter he was on crutches and confined to home. Thereafter, he started slowly moving out of the house and walking with the aid of a stick. Until he moved out of the house, he remained away from his job. As to when exactly he joined duty, however, there is no evidence on record. Bharat received treatment as aft indoor patient in the hospital from September 2, 1972 till September 14, 1972. He continued to receive treatment as an outdoor patient for a period of 15 days after his discharge from the hospital. Subsequently, he took treatment from an Eye Specialist for a period of about one week. Nothing helped him, however, and the test vision was not restored either wholly or partially or even minimally. At the time of the accident, he was prosecuting studies in the Second Year B.Com. Class in the N.C. Bodiwala Commerce College at Ahmedabad. The tragic consequence of the impairment in his vision was that he could not resume studies which he has now permanently left.

Before we separately deal with the two sets of appeals, it would be convenient to deal with a common aspect which arises in all the matters, namely, whether the injuries in question were sustained by the two claimants as a result of a tortious act on the part of the bus driver in the employment of the respondent Municipal Corporation in driving the bus in a rash and negligent manner, or whether the tortious act was on the part of the rickshaw driver in driving his vehicle rashly and negligently, or whether the tortious act consisted of a composite negligence on the part both of the bus driver and the rickshaw driver. The Tribunal has found that the tortious act was solely on the part of the bus driver who was driving the bus in a rash and negligent manner at the material time and that there was no negligence whatsoever on the part of the rickshaw driver. This finding of the Tribunal has been assailed on behalf of the respondent Municipal Corporation and that warrants examination of this question.

The witnesses whose evidence is material on this issue are Bharat (Ex. 71), Niranjan (Ex. 72), Mahomedbhai Musabhai Patel (Ex. 89 rickshaw driver) and Husein Memanji (Ex. 91) (bus driver). The documentary evidence consists of the Panchnama, Ex. 69, which is proved by Mahomed Hanif Noormiya (Ex. 70). We shall briefly examine this evidence.

Bharat has deposed, under examination-in-chief, that at the material time, the rickshaw was driven at a moderate speed on the correct side of the road. Before it reached the site of the accident, it had already overtaken a scooter. The bus came from the opposite direction with great speed. It overtook a vehicle running ahead of it. In the process, it had to go on the wrong side of the road and it then took a turn towards the left. At that point of time, the portion on the right side of the vehicle next adjacent to the right wheel collided with the front portion of the rickshaw. As a result of the impact, the rickshaw swerved towards its left and he was thrown out on the road. Under cross-examination, the witness deposed that if the bus had not swerved towards left after overtaking the vehicle running ahead of it, there would have been a head-on collision between the rickshaw and the bus. The speed of the rickshaw at the material time was about 20 to 22 kilometres per hour, whereas that of the bus was about 50 to 55 kilometres per hour. He was unable to say whether just before the accident, the rickshaw driver had applied brakes. However, an attempt was made by him to swerve the rickshaw towards its left but before he could do so, the accident occurred. A suggestion was put to the witness that while the rickshaw was attempting to overtake another rickshaw proceeding ahead of it, the other rickshaw suddenly took a turn towards the right and that consequently, the rickshaw in which he was travelling had to turn towards the right and that in that process, the rickshaw overturned on account of the force of its own speed without any collision with the bus which was coming from the opposite direction. The witness denied the suggestion.

It requires to be mentioned that under cross-examination, the witness had stated that he was not in a position to recollect if his statement was recorded by the police at the hospital on September 3, 1972. According to him, he was semiconscious on that day and for a period of about ten days thereafter, he was passing from consciousness to unconsciousness off and on. Under the circumstances, he did not have even a hazy idea about the police having visited the hospital on September 3, 1972, or their having interrogated and recorded his statement. Portions of the alleged statement made by the witness before the police were put to him. He, however, denied having made those statements. It is not necessary to deal with the further cross-examination of the witness based upon his alleged statement before the police, because the contesting party has not proved through the evidence of a competent witness that those statements were, in fact, made.

Niranjan has deposed, under examination-in-chief, that at the material time the rickshaw was driven at a moderate speed on the correct side of the road. Just before the accident took place, the rickshaw had overtaken another rickshaw proceeding in the same direction and ahead of it. At that point of time, the municipal bus came from the opposite direction. It overtook another rickshaw and in the process it went beyond the middle line of the road and it was on the wrong side. After overtaking the rickshaw, the bus swerved slightly towards its left. In the said process, the right side portion of the body of the bus collided with the front portion of the rickshaw. The rickshaw turned towards the left side as a result of the impact. The front portion of the rickshaw was damaged and as a result of the impact, he was trapped under the rickshaw. Under cross-examination, the witness denied the suggestion that the rickshaw in which he was travelling was driven at full speed and that the speed was increased still further while the driver was attempting to overtake another rickshaw going ahead of it. He also denied the suggestion that at that time, the rickshaw, which was in the process of being overtaken, took a sudden right turn and that consequently, the rickshaw in which he was travelling also had to take a sudden turn towards the right and that in that process, it overturned. The suggestion that there was no collision between the bus and the rickshaw was also denied.

It requires to be mentioned that under cross-examination, the witness stated that his statement was not recorded by the police in the hospital. Later on, however, he stated that he was not in a position to say whether on the evening of September 3, 1972 the police had recorded his statement.

Mahomedbhai Musabhai Patel has deposed, under examination-in-chief, that at the material time, he was driving the rickshaw slowly on the left side of the road. When he reached near the Jyoti Sangh building, a rickshaw running ahead slowed down and gave a signal to overtake. Thereupon, he overtook the said rickshaw. At or about this time, the municipal bus came from the opposite direction all of a sudden. It overtook a rickshaw running ahead of it with speed. After overtaking the rickshaw, the bus driver gave a slight turn to the bus towards the left. However, the accident could not be avoided and a portion of the right side body of the bus collided with the rickshaw just near the front right wheel and damaged the front right portion of the rickshaw. As a result of the impact, the rickshaw overturned on the left side after taking a ''U'' turn. The front glass of the rickshaw broke, hood was torn and the front portion was crushed. He sustained injuries on hand and chest and was an indoor patient in the Vadilal Sarabhai Hospital for five days. In the criminal trial held against him he was acquitted. Under cross-examination, the witness denied that two rickshaws were running side by side ahead of his rickshaw and that while he was trying to overtake those rickshaws, his own rickshaw overturned because one of the rickshaws ahead of him Suddenly turned towards the right requiring him to swerve his own rickshaw towards the right. He also denied the suggestion that there was no collision between the bus and the rickshaw and that the damage to the rickshaw was caused merely because of its having overturned. His version was that there was sufficient room for overtaking a single rickshaw running ahead of his rickshaw and that he had already overtaken it before the accident took place while being on the correct side of the road from the mid-line. The first time that he saw the bus it was at a distance of about 18 feet from his rickshaw. No sooner he saw the bus, he applied the brakes, pressed the clutch and swerved the rickshaw towards the left. By that time, the distance between the rickshaw and the bus was reduced to 2 to 3 feet. The bus had by then overtaken the rickshaw running ahead of it. After the accident, the bus stopped. The rickshaw was lying in the same position on its left side on the road, when he left for the Vadilal Sarabhai Hospital in another rickshaw. He denied that white overtaking the rickshaw ahead of his rickshaw, he had increased the speed and that he had not sounded horn or given a singal to overtake.

Husein Meman has deposed, under examination-in-chief, that he was driving the bus at slow speed in the second gear at the material time and that his vehicle was at a distance of about 8 feet from the foot-path on the left side. He had not overtaken any rickshaw running ahead of his vehicle before the accident took place, although it was a fact that about two or three rickshaws were proceeding in the same direction ahead of his vehicle. The bus was not taken beyond the midline of the road. When he noticed the, rickshaw for the first time, it was at a distance of about 25 to 30 feet away and it was on the correct side of the road. Two other rickshaws were also running side by side with the said rickshaw. At that time, one of the other two rickshaws took a turn towards its tight and, consequently, the rickshaw in question also had to take an abrupt turn towards the right. Because of the abrupt turn taken towards the right, the rickshaw got toppled and fell on the ground on its left side. This happened when the bus was at a distance of about 15 feet away. Thereupon, he swerved his own bus towards the left and applied brakes. The bus stopped very much near the rickshaw which was by that time lying on its side. No proceedings were initiated against him in the criminal Court in respect of the accident in question. Under cross-examination, the witness denied the suggestion that he was driving the vehicle on the wrong side of the road at an excessive speed before he gave a turn to it towards the left. He also denied the suggestion that he had overtaken a rickshaw running ahead of the bus and that but for his swerving the bus on the left, there would have been a head-on collision between the front portion, of the bus and the front portion of the rickshaw. He also specifically denied the suggestion with regard to any collision between the rickshaw and the bus and, the, rickshaw having taken a ''U'' turn and having overturned on its left side as a result of the impact. The witness admitted that he had not blown any horn just before the accident. He stated that he was present at the time when the Panchnama was made and that soon after the accident, crowd, which had collected at the site, had put the rickshaw on wheels again at the same place where it had overturned.

Mahomed Hanif, who has proved the. Panchnama, deposed, under cross-examination, that at the time of the Panchnama, the rickshaw was lying at a distance of about 2 feet from the middle portion of the bus, with its front portion facing the Lal Darwaja side. The Panchnama, Ex. 69, records that both the rickshaw and the bus were facing the western direction, that is to say, the Lal Darwaja side. The hood of the rickshaw had collapsed on account of the impact of the accident. The road was 45 feet broad on the spot. The front right wheel of the bus was at a distance of 24 feet from the foot-path on the northern side, that is to say, the wrong side of the road. The rear right wheel of the bus was at a distance of 221/2 feet from the said foot-path. The rear left wheel of the bus was at a distance of 141/2 feet from the edge of the foot-path on the southern direction, that is to say, the correct side of the road. The front left wheel was at a distance of 111/2 feet from the edge of the foot-path on the same side. The distance between the rear right wheel of the bus and the front wheel of the rickshaw was 2 feet-2 inches. The length of the bus was 28$ feet and the breadth of the rear side was 8 feet. The length of the auto-rickshaw was 8 feet and the breadth on the rear side was 3 feet 8 inches. The bus was not damaged in the course of the accident. The hood of the rickshaw had collapsed and the front glass was broken. The accident had taken place at the spot where the shop of Laxmichand Bhagaji is situate on the north and the building of Jyoti Sangh is situate to the south.

Before we deal with the oral evidence having a bearing on the issue under consideration, it would be worthwhile to recapitulate the actual position emerging from the Panchnama. The total width of the road at the site of the accident being 45 feet, the middle line of the road would be 221/2 feet from either side. Since the (sic) right wheel of the bus was at a distance of 24 feet from the foot-path on the northern (wrong) side of the road, it cannot possibly be disputed that the front portion of the bus was on the correct side of the mid-line. It was 11/2 feet from the mid-line of the correct side. However, since the rear right wheel was at a distance of 221/2 feet from the foot path in the same direction, it was exactly on the mid-line of the road. The bus was, therefore, found standing in an oblique position with its front portion swerved towards the left (the correct side) of the road and with its back portion at the centre of the road. The rickshaw, whose front wheel was at a distance of 2 feet-2 inches from the rear right wheel of the bus, was found standing with its face turned in the opposite direction but on the correct side of the road. It was about 2 feet-2 inches on the correct side from the mid-line of the road. There was damage to the rickshaw since its hood had collapsed and front glass was broken.

The position in which the vehicles were found standing renders the version of two claimants and the rickshaw driver more probable and acceptable and, at the same time, makes the version of the bus driver unacceptable. The claimants and the rickshaw driver have deposed that the rickshaw had already overtaken another vehicle going ahead of it before the accident took place and that it was running on the correct side of the road. This version finds support from the Panchnama wherein the rickshaw is shown to have been standing 2 feet-2 inches away/ from the mid-line of the road on the correct side. If the version of the bus driver was true, the rickshaw should have been found lying or standing on the wrong side of the midline, because, according to his testimony, the accident occurred when it was in the process of overtaking two other rickshaws running side by side, one of which took a sudden right turn requiring the rickshaw in question also to turn to the right. Moreover, if the rickshaw had overturned on account of its having, taken a sudden turn to the right in great speed, it would have fallen on its right side and it could never have been found with its face turned towards the direction from which it was coming. The damage to the hood and the front glass of the rickshaw also indicates that there must have been a collision between the rickshaw and the bus after the bus had swerved slightly to the left, for, there would otherwise have been a more extensive damage on account of a head-on collision. The version of the bus-driver and the suggestion put to the claimants and the rickshaw driver, therefore, that there was no collision between the rickshaw and the bus and that the rickshaw had toppled on account of its speed when it took a sudden turn on the tight does not accord with probabilities and is not borne out by the evidence on record. The oblique position in which the bus was found standing also lends support to the version of the claimants and the rickshaw-driver about the bus having overtaken a vehicle after going on the wrong side of the road and the driver having thereafter swerved the bus a little towards the left from the midline of the road. There is no apparent reason to disbelieve the version of the two claimants and the rickshaw driver that the bus was being driven at the material time at an excessive speed and that the accident took place on account of the rash and negligent driving of the bus by the bus-driver. The Tribunal has also reached the same conclusion and we see no reason to differ from the same.

The evidence of the two claimants was sought to be discredited by relying upon two circumstances emerging from their evidence. First, that though the statements of both of them were, recorded by the police in the hospital on September 3, 1972, they were not prepared to readily admit that fact and, secondly, that their version before the Court was different from that given in their respective police statements. Now, so far as the first circumstance is concerned, the evidence of Shirajuddin Sabuddin, Ex. 99, who was attached at the material time as a writer constable to the P.S.I. of Karanj Police Station, establishes that the statement of Niranjan was recorded at the Vadilal Sarabhai Hospital on September 3, 1972. It has, however, not been established by leading any evidence that the statement of Bharat was also recorded by the police on the same day at the same place. It is true that both, Niranjan and Bharat, have deposed that they were not able to recollect whether their statements were recorded on September 3, 1972. However, they have explained that their inability was on account of the fact that they had become unconscious after the accident and that so far as Bharat is concerned, he was semi-conscious on the day in question and was passing from consciousness to unconsciousness off and on for a period of ten days thereafter and that so far as Niranjan is concerned, he had regained consciousness on the same day but he was under the effect of pain and shock on account of the injuries received by him. Having regard to the aforementioned circumstances, it would be hazardous to infer that both of them were making deliberately false statement in pleading their inability to recall the factum of their police statement having been recorded on the day in question. So far as the second circumstance is concerned, it is true that certain specific portions from the police statement of Bharat were put to him in cross-examination with a view to contradicting him as regards his version in the court. However, Bharat denied having made those statements and, under those circumstances, it was incumbent to prove those statements by calling a competent witness, which has not been done. In the circumstances, that circumstance has no relevance, so far as the testimony of Bharat is concerned. In the case of Niranjan, exactly the converse has happened. No specific portion from his police statement was put to him while be was under cross-examination with a view to discrediting his version before the Court. Still, however, through Shirajuddin Sabuddin, Ex. 99, an attempt was made subsequently to prove some portions from his statement alleged to have been recorded by the police. The Tribunal rightly upheld an objection advanced on behalf of the claimants that this could not be done and, under these circumstances, no contradiction between the testimony of Niranjan and his previous statement, if any, is brought on record. His testimony cannot, therefore, be impeached on that ground.

On behalf of the respondent-Municipal Corporation, an attempt, in the alternative, was made to persuade us to take the view that there was composite negligence on the part of the driver of the rickshaw and the bus driver and that the blame for the accident could not be laid solely on the shoulders of the bus-driver. Apart from the fact that the case now sought to be built up accordingly is quite contrary to the stand adopted on behalf of the respondent-Municipal Corporation at the trial of the claim applications, we do not think there is any substance in the same. While earlier discussing the question of negligence, we have indicated that the circumstances emerging from the evidence which we have accepted, point in the direction of the bus-driver being solely responsible for the accident in question. The evidence of Bharat, Niranjan and the rickshaw driver, which we have accepted, clearly establishes that at the material time, the rickshaw was driven at a moderate speed or the correct side of the road after it had already overtaken another vehicle going ahead of it. The fact that the rickshaw was on the correct side of the road is also established by the circumstances emerging from the Panchnama. If the rickshaw driver was guilty of rash and negligent driving, the outcome of the accident could not have been what it is. It would have been a much more serious outcome, for, there would have been a head-on or a forceful collision between the two vehicles resulting in severe damage to the rickshaw, some damage to the bus and much more serious injuries to the persons involved and may be, to the rickshaw driver. We are, therefore, not inclined to accept the submission that there was contributory negligence on the part of the rickshaw driver.

As a result of the foregoing discussion we come to the conclusion that the Tribunal''s decision that both the claimants received injuries in the course of an accident which occurred on account of the rash and negligent driving of the municipal bus by the bus driver is fully justified. We also agree with the Tribunal that the respondent-Corporation, owning as it did, the vehicle, which was driven by the bus driver in the course of his employment, is vicariously liable for the less tortious act.

We take this opportunity once again to bring into sharp focus the need to amend the legislation governing the award of damages in motor accident cases by introducing the no-fault liability concept in a suitable manner and by providing for expeditious settlement of claims. Many Courts including the Supreme Court have spoken on this subject and we can do no better than extract the following passage from the decision in State of Haryana v. Darshana Devi 1979 A.C.J. 205, which, with respect, expresses views on the subject with justifiable force and emphasis :

It is a notorious fact that our highways are grave-yards on a tragic scale, what with narrow, neglected roads, reckless, unchecked drivers, heavy vehicular traffic and State Transport buses often inflicting the maximum casualties. Now that insurance against third-party risk is compulsory and motor insurance is nationalised and transport itself is largely by State Undertakings, the principle of no-fault liability and on-the-spot settlement of claims should become national policy. The victims, as here, are mostly below the poverty line and litigation is compounded misery. Hit-and-run cases are common and the time is ripe for the court to examine whether no-fault liability is not implicit in the Motor Vehicles Act itself and for parliament to make law in this behalf to remove all doubts. A long-ago report of the Central Law Commission confined to hit-and-run cases of auto-accidents is gathering dust. The horrendous increase of highway casualties and the chronic neglect of rules of road-saftey constrains us to recommend to the Central Law Commission and to Parliament to sensitize this tragic area of tort law and overhaul it humanistically.

out that in the United Kingdom, where the tort system provides annually 202 million pounds to 2,215,000 beneficiaries by way of compensation for personal injuries and death from accidents and the percentage obtaining tort compensation for motor vehicle injuries is 25 per cent, the Royal Commission on Civil Liability and Compensation for personal injury was set up in or about 1973 to consider to what extent, in what circumstances and by what means compensation should be payable in respect of death or personal injury suffered by any person, inter alia, through the use of a motor vehicle or other means of transport. The Commission, in its report submitted in 1978, (conveniently called the ''Pearson Report''), has in terms recommended that while the two systems of tort and social security should continue side by side, no fault compensation should be introduced for motor vehicle injuries (see Volume 1). Mr. Norman S. Marsh, C.B.E., Q. C., Member of the Royal Commission on Civil Liability and Compensation for Personal Injury (1973-78) and of the Law Commission (1965-78), in his article on "The Pearson Report on Civil Liability and Compensation for Death or Personal Injury'' published in the Law Quarterly Review, Vol. 95, at page 513, has pointed out at page 522 that it was clear from a survey of overseas compensation systems that it was possible to have a system of compensation for motor vehicle injuries, which did not depend on proving fault in a defendant in other words, a so-called no-fault system and which was provided by the private; insurance industry rather than by the State. Such a system provided by the private insurance industry is prevailing in about half the States of the United States and seven of the ten provinces of Canada. In British Columbia, Manitoba and Saskatchewan, no-fault schemes for motor vehicle injuries are administered by public corporations. It would thus appear that the no-fault liability is now becoming an accepted doctrine elsewhere and that in some of the countries, it is actually put into practice and working successfully. The legislature in our socialist republic, wedded to the goal of a welfare State, has made the third-party risk insurance cover compulsory. Now that the general insurance industry is nationalised and the State itself has monopolised to a large extent the public transport system, there is no reason why, adopting and synthesising the systems prevalent in the United States of America, Canada, British Columbia, etc., the insurer/ public undertakings should not be made liable to pay compensation in motor Vehicle accident cases on the basis of a no-fault liability scheme and Why the procedure for the recovery of compensation should not be simplified so as to ensure quick payment of a just compensation at the least cost to the injured persons and dependants of victims of motor vehicle accidents. We trust and hope that some measures will be taken in this direction before long by those in whom the power is reposed.

It would be convenient now to turn to the question of assessment of damages. Before we do so, however, we may deal with the question of principles governing the award of damages in cases of this nature. A person injured by another''s wrong is entitled to general damages for non-pecuniary loss such as his pain and suffering, past and future, and his loss of amenity and enjoyment of life. Damages awarded for pain and suffering and loss of amenity constitute a conventional sum. There has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. This particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the Value of money leads to continuing reassessment of these awards and to periodic reassessment of damages at certain key points (see Babu Mansa Vs. The Ahmedabad Municipal Corporation and Others,

In addition to the general damages for non-pecuniary loss, the injured person is also entitled to damages for pecuniary loss. The award of damages for pecuniary loss is usually made under two distinct heads. Special damages are awarded for the actual pecuniary loss, that is to say, the exact amount of money which has been lost or spent as a consequence of the injury, upto the date of the trial. There must be a specific plea as to the exactor approximate pecuniary loss upto the date of the trial and; if proved, such amount would be awarded as special damages. General damages are awarded for what may be-conveniently termed as the loss of prospective earnings. The deprivation of earnings or other items which would have been received but for the accident and have now been taken away and the new positive burden of expenses incurred as a result of the accident would be reflected in the damages awarded under this head. (see Bharat Premjibhai Vs. Municipal Corporation, Ahmedabad and Another,

It is essential to bear in mind that loss arising on account of deprivation of future earnings is itself divisible into two distinct categories : loss of future earnings and loss of earning capacity. The loss of future earnings consists of the estimate formed of the thee real assessable pecuniary loss of wages, income or profits, which is likely to he suffered'' by the injured person after the date of the trial as a result of the accident. Take, for" example, the case of a person who is in a profession trade or employment at the date of trial but is earning less than what he was earning before the accident. We can claim compensation for loss of future earnings Which is to be assessed on the ordinary multiplier/ multiplicand basis. On the other hand, Where an injured person is still able to earn his pre-accident wages performing his pre-accident work or by obtaining another employment or taking to another trade or profession, which is more suited to his handicap or currently inferior state of fitness, he has no claim for loss of future earnings. This does not necessarily mean, however, that he can claim no compensation whatever for future pecuniary loss. He may be able to claim that he has suffered some deduction in his capacity to earn money on account of the damage presumed to flow from the injury sustained, such as any prejudice to his advancement in the chosen career, for chances of getting another equally paid job in ease he loses his present employment, or securing a better paid form of employment open to him, or of his being promoted to a higher post at his present place of work. Similarly, Where a person who has sustained severe injuries, with or without some permanent disability, but has not been able to prove precisely any prospective loss of earnings, say, because he is a very young child who has not reached an age to pursue a career or to be employed gainfully, or is a young adult who is not yet earning at all or earning a true living wage for one reason or another, he may also claim compensation for loss of earning capacity. What is awarded in these cases, byway of "damages, is truly a compensation for a disability or, to put it differently, for destruction or diminution of a capital asset; albeit of a limited duration. For the assessment of such loss, an estimate of the probable future earnings had there been no accident and the actual earning power left after the accident has to be made. The difference between the two is the loss of earning capacity. The subject matter of estimation is very much what is often called "a series of imponderables" and what has somehow to been quantified in assessing damages is the present value of the risk that a plaintiff will, at some future time, suffer financial damage because of his disadvantage in the labour market. Two aspects must, however, re kept in mind in quantification of the damages: first, there must be a ''substantial'' or ''real'' (and not ''speculative'' or ''fanciful'') probability or risk loss of earning capacity and, secondly, the damages must be assessed and quantified, having regard to all sorts of variable factors, such as, for example, the injured person''s age, his skills, the nature and degree of his disability, whether he is capable of one type of work only or whether he is, or could become, capable of others, the general employment situation or prospects of advancement in his trade, profession or vocation and area, or both, the probability and time when the loss may materialise nod so on and so forth. Factors, both favour able and unfavourable; which, in a particular case, will, or may, be relevant, must be weighed and considered (see Charles worth on Negligence, Sixth Edition, paragraphs 1439 to 1441, pages 885 to 887; The Quantum of Damages, Vol. 1, by Kemp and Kemp, Fourth Edition, Chapter 12, page 121; and Moeliker v. Reyrolle and Co. 1977 A.C.J. 364.

Against the aforesaid background, we now turn to the question of assessment of damages under different heads in the case of Niranjan and Bharat respectively.

(A) Niranjan

(1) Pain and Suffering and Loss of Amenities and Enjoyment of Life :

No claim was specifically made under this head but damages in the sum of Rs.30,000/- were claimed under the head of compensation for permanent defect and Rs. 5,000/- font mental shock The claim of damages for pain and suffering must be taken to have been comprised in the damages claimed under those two heads. The Tribunal awarded a sum of Rs. 10,000/-, following two decisions, one reported and another unreported, of this Court. The reported decision is in Ranjit singh Gopalsingh v. Meenaxiben 13 G.L.R. 662, and the unreported decision was rendered in (Vipin kumar Babubhai Surati v. Government of Gujarat F.A. No. 672 of 1971; decided on 9.3.73).

XXX

Herein, the injured person was aged about 21 at the time of the accident. The injury which he has suffered is the fracture of the right femur. The injury has left a permanent handicap. Even at the date of the trial, he had a limping gait and difficulty in squatting and sitting cross-legged. He could not walk without the aid of a stick. Even with the aid of a stick, he could only walk slowly and for a very short distance. The pain in the leg persisted. The last 10 degrees of abduction and external rotation of the right hip were painful and restricted. There was tenderness in the region of the right greater trochanter. A nail had to be inserted at the site of the fracture. The permanent disability of the particular limb has been assessed at 20% by taking the capacity of the body as a whole at 100%, the estimate with regard to the permanent disability of the particular limb was between 5 and 10%. The period of hospitalization was 21 days but it was followed by outdoor treatment for a period of two months and a total period of four months of confinement to bed. He has suffered a shock and becomes nervous at times and is also apprehensive of his future.

Although there is slight variation in, the degree of disability suffered by the injured person in Babu Mansa''s case and in this case, by and large, the disability is still readily identifiable and the severity of the injuries is comparable. Therefore, the damages awardable would fall in the same bracket. Niranjan will have to live with the discomforts and disabilities resulting from this accident nearly for half a century. The pain that he was actually suffered and was suffering at the date of the trial, the tenderness, restriction of movements, clumsiness, inconvenience, unsightliness, etc., at work, and off work which this injury will always inflict on him, justify an award in the sum of Rs. 15,000/-, despite the fact that upon a very close scrutiny, slight difference might be perceivable in the severity of injuries in this case and in the case of Babu Mansa Vs. The Ahmedabad Municipal Corporation and Others, .

We may also point out that the consumer price index numbers for industrial workers all India general index discloses a further fall in the purchasing power of rupee between the date of the decision in Babu Mansa and the decision herein. The relevant data is as follows :

Year

General Index

(Annual average)

1978

329

1979

349

The fall in the value of money itself would justify an award of Rs. 15,000/-under this head for the injury suffered by Niranjan, even assuming that there is a slight difference between the severity of injuries in the two cases. Indeed, this is the bracket of damages in which this kind of injury will currently fall in similar cases. The Tribunals would be well-advised in currently awarding damages in similar cases on the basis of this guideline.

(2) Pecuniary Loss :

The compensation under this head was claimed under two sub-heads. : Rs. 2,000/- for cost of medicines and medical treatment and Rs. 30,000/- as compensation for permanent defect. The Tribunal has awarded Rs. 2,000/- as special damages for cost of medicines and medical treatment. The claim under that sub-head is, therefore, fully satisfied. General damages in the sum of Rs. 15,000/- were awarded by the Tribunal under the combined head of loss of amenities and pecuniary loss. Now, in the first place, general damages for pain and suffering and loss of amenities should have been assessed together on a global basis. Damages for pecuniary loss should have been separately quantified. In the next place, we have come to the conclusion that an award of Rs. 15,000/- under this head is too low and that it requires to be revised upwards.

It is difficult to appreciate as to how a sum of Rs. 15,000/- was arrived at as the proper compensation not only for future pecuniary loss but also for loss of amenities. The discussion is too general to indicate the basis of assessment and the method, if any, followed in arriving at the ultimate figure, is difficult to perceive. The last sentence in the extracted portion of the decision of the Tribunal indicates that it determined compensation under this head at Rs. 15,000/- after taking into consideration the award in the sum of Rs. 10,000/-for pain and suffering. If it was meant thereby that there is necessarily duplication in the award of damages under the head of pain and suffering and under the head of pecuniary loss, then the Tribunal was clearly in error in law. The two are distinct heads and each is a proper subject of compensation. True it is that the Court must be vigilant to avoid duplication of damages. However, in most cases, the risk of overlapping is not great nor substantial when compensation is separately awarded under the aforesaid two heads. In this case, we do not find any such overlapping at all. It would thus appear that the Tribunal''s award is inadequate because it has not correctly appreciated the principles and precisely applied the method for determining damages.

At the date of the trial, Niranjan had gone back to his original work and he was getting the same emoluments which he would have earned if he had not met with the accident. In his case, therefore, there can be no question of awarding damages for actual loss of future earnings. The only question which falls for consideration, therefore, is whether there is any loss of earning capacity as a result of his chances in the future of earning promotion or getting in the labour market work--work as well paid or better paid as before the accident having been diminished by his injury. This question has to be examined in two aspects, first, whether the probability, if any, of loss of earning capacity is real and substantial and, secondly, if so, what is the proper quantification of the present value of the financial damage which he will suffer if the probability becomes a reality.

On the date of the accident, Niranjan was about 21 and at the time of trial, he was about 22. The span of his future working life is, therefore, about 35 to 36 years. He has passed the S.S.C. Examination but has had no further academic career. There is no evidence to show that he possesses any special skill. He appears to have started, therefore, at the lowest rung of the ladder in the Design Department. His basic salary when he joined was only Rs. 38/- per month which, by the time of trial, had been raised to Rs. 54/- per month. He took his present job only one year before the accident. He is, therefore, not an old and tried employee. The injury received by him has affected the speed and quality of his work both of which have deteriorated. The physical handicap suffered by him was manifest even at the trial and there is permanent disability. Though his employers have allowed him to resume duty, it might as well be on a trial basis. Indeed, he was apprehensive of his future when he gave evidence. Taking an overall view of these circumstances, the probability that he might some day lose his present job cannot altogether be ruled out. There is no evidence that he is capable of working in different capacities or different employments. Therefore, in the event of his being discharged, he would be at a disadvantage in the labour market, having regard to his handicap. Indeed, he has deposed that because of his physical handicap his chances of securing service elsewhere are ''nil''. Apart from the aforesaid consideration, the further fact, which stands established on evidence, is that his chances of promotion to the higher post of semi-artist and to the still higher post of artist are considerably affected. Even on this count, therefore, there is a probability of diminution in his earning capacity as a direct result of the injuries received by him. In our opinion, therefore, the conclusion is inevitable that there is a real and, for that matter, substantial loss of his earning capacity.

What, then, is the present value of the probable financial damage which he might suffer at some future time because of the aforesaid disadvantage ? The starting point for the assessment of the probable loss should be the amount which he was earning at the time of the trial. In all, his earning at that stage was Rs. 354/- per month. Upon rounding up, it comes to Rs. 350/- per month. From the trend of his evidence it appears that he was looking for improvement in his financial prospects only by way of earning promotions to higher posts on the establishment of his present employers. The highest post to which he aspired to rise, the post of an artist carried at the time of the trial basic pay in the grade of Rs. 200 to 700. He would not have earned that promotion, however, unless he had earned promotion to the intermediate post of semi-artist in the grade of Rs. 120 to 200. The evidence discloses that before earning promotion to the intermediate post, he would have been required to put in about four to five years'' service in the cadre of helper and that to earn promotion to the post of artist, he would have been required to put in about four to five years'' service as semi-artist. On that basis, assuming that his future career would have run a smooth and destined course, he would have been a helper until about 1976 and a semi-artist until about 1981. He could have aspired to attain the promotion post of artist earliest in 1981. There is no material on record with regard to the stages of the time scales of the two promotional posts or with regard to the admissible dearness allowance in the promotional posts. There is also no evidence in respect of chances of promotion to a still higher post or better paid employment elsewhere. It would not be unreasonable to assume, however, having regard to all the circumstances of the case, that the highest that he would have probably earned, had he not met with the accident, would have been Rs. 1,000/- per month. However, this prospective rise in earnings would have to be spread over long years. Besides, the probability,- on the one hand, that he might not have earned the two promotions at all even if he was not injured or, on the other, that he would still earn the promotions despite his handicap, must also be taken into account. In the same way, the probability that he might or might not be thrown out of the job must be also taken into account. Therefore, although between the actual earning at the rate of Rs. 350/- per month and probable future earning at the rate of Rs. 1,000/- per month, the difference works out to Rs. 650/- per month, the whole of that difference cannot be taken as reflecting the present value of the probable financial damage likely to be suffered in future. The circumstance that he is getting payment in present for the probable loss in future must also enter into account. Taking into consideration all relevant factors, we would estimate one-third of Rs. 650/- per month as reflecting the present value of the loss of his future earning capacity per month. The datum figure on that basis works out to Rs. 217/-per month and to take a round figure, we would determine the datum figure at Rs. 200/- per month. On that basis, the annual loss works out to Rs. 2,400/-. In the case of a young man with such a long working life ahead of him, the multiplier of 15 can be appropriately taken. Accordingly, damages under the head of loss of earning capacity would work out to Rs. 36,000/- in place and stead of Rs. 15,000/- compositely awarded by the Tribunal under this head as well as for the loss of amenities.

In all, therefore, Niranjan becomes entitled to an additional award in the sum of Rs. 26,000/-. The claim in his appeal, however, is restricted to Rs. 10,000/- and the actual award, therefore, can only be in the sum of Rs. 10,000/-. His appeal, therefore, fully succeeds, whereas the appeal of the respondent-Municipal Corporation fails.

(b) Bharat

(1) Pain and Suffering and Loss of Amenities and Enjoyment of Life :

There was no separate claim under this specific head. However, Rs. 50,000/-were claimed as compensation for loss of eye-sight and brain damage and Rs. 5,000/-for mental shock. It would be appropriate to consider the claim under the aforesaid two heads as including a claim for pain and suffering and loss of amenities and enjoyment of life. The Tribunal has awarded Rs. 10,000/- for pain and suffering only. There is no award for loss of amenities and enjoyment of life.

Now, in our opinion, the Tribunal erred, in the first instance, in grossly underestimating damages under this head, having regard to the nature of injury and, in the next place, it erred in law in not taking into account altogether the sub-head of damages for loss of amenities and enjoyment of life which, in the instant case, could not possibly have been ignored.

It requires to be emphasized at the outset that injuries resulting in loss of eye/ eyes or total or partial loss of eye-sight stand in a category by themselves. Injuries which result in loss or partial loss of sense of faculty are not comparable with injuries involving loss of limb. It is true that when a man loses an eye, in normal circumstances, once he accustoms himself to mono-vision, he does not suffer any great inconvenience. But one of the factors (and a most important factor) which must be taken into account in assessing damages is that if by chance he loses the remaining eye, he becomes stone-blind and is prevented from earning his living or greatly hindered in doing so, and loses much of the pleasure of life. The chance of losing the remaining eye or eye-sight in the remaining eye in a country like ours where the bane of blindness is on a high scale cannot be discounted as too remote. Even the ordinary process of aging brings about diminished vision for a variety of reasons, if nothing else, and the chance of the impairment of vision in the remaining eye is all the greater when the entire function of sight has to be takenover by that sole eye.

In Quinn v. J. W. Green (Painters) Ltd. (1966) 1 Q. B. 509, Salmon, L.J. has observed as follows :

It is said that people who have lost one eye do not often lose the other. The evidence shows that persons who have lost the lens of one eye have a 2.5 percent, greater chance than normal people of having a detached ratina, in that eye, and that this chance probably exceeds the chance of losing the other eye. I do not think that matters of this kind can be decided on nice mathematical calculations. It is manifest that although the risk is not very great, in the ordinary course of things, there is always a real risk that this man may lose the sight of his right eye. If he did, he would, as the result of this accident, be completely blind because the left eye could not now be of any use to him.

The learned Judge proceeded to observe that in case of loss of one eye the usual figure for damages under the head, of pain and suffering was between � 2,000 and � 3,000 and he thought that in 1965 the figure should be nearer � 3,000 than � 2,000.

The aforesaid indication regarding the bracket of damages current in 1965 cannot obviously reflect the later trend of awards in England for the loss of sight in one eye. In the foot-note to paragraph 1147 at page 447 of Halsbury''s Laws of England, Volume 12, 4th Edition, the learned authors have given a comparative table of the awards made by the Courts in England from time to time for the loss of sight of one eye as an illustration of periodic reassessment of damages at certain key points. The pattern as shown by the learned authors is as follows:

Between � 2,000 and �3,000

-1965

� 3,500

-1971

� 4,000 to � 4,500

-1974

It would not be out of place to mention in this context that in the Quantum of Damages by Kemp and Kemp, Vol. 2, Part 5, Section A, paragraph 5001, it is mentioned that:

Currently (in 1976) awards in excess of � 5,000 for the loss of sight of one eye are to be expected.

In the foot-note in Vol. 12 of Halsbury''s Laws of England referred to earlier, the learned authors have noted that recent awards for the loss of sight in both eyes have been � 20,000 for a man aged forty-seven with some pre-existing vulnerability to eye injury, but for which the award would have been � 24,000. In the case of a young girl with additional disability, � 36,000 were awarded for the loss of sight in both eyes. It would thus appear that in England damages are awarded on a very high and liberal scale in cases of loss of sense or faculty such as loss of one eye or vision in one eye and for total blindness resulting from accident. Conversion from one currency into another may not be strictly relevant in the context of the point under consideration, having regard to the varying conditions in two countries. It might still be mentioned, however, that in terms of the rupee currency, an award in the sum of � 5,000 for loss of vision in one eye would mean Rs. 90,000/- taking the exchange ratio of � 1=Rs. 18 which is the amount around which the exchange rate usually fluctuates.

With these prefactory remarks, let us proceed to the actual assessment of damages in the instant case. The evidence discloses that the loss of vision in the right eye was almost instantaneous and that it is total and of a permanent nature, in that it is not curable by means so far known. It had subjected the injured person to great pain soon after accident. It had also brought about sleeplessness and constant pain in head. This after-effect continued right upto the date of trial, although by that time there was noticeable improvement in regard to both the complaints. There was lack of concentration and difficulty in reading at a stretch for sometime resulting from watering of eyes off and on. His memory was impaired. There was inconvenience and difficulty in walking, climbing and alighting stairs and in crossing roads, which continued right upto the date of trial. All this brought the inevitable consequence of Bharat having to give up his studies in the College midstream at the Second Year B.Com. level. It also resulted in his giving up his favourite hobby of playing cricket and foot-ball. All this has brought about mental depression, loss of company and association and, what is still more unfortunate, loss of chances of matrimony. The scale of pain and suffering and the loss of amenities and enjoyment of life with all these disabilities and limitations can well be appreciated. The loss of sight of the eye is a tragedy for anyone, but particularly for a young man, the loss is great and irreparable. Its distressing effects make it essential that the conventional award under this head should be in a substantial sum. This Court, in case of a young boy aged 12 whose right leg above the ankle had been amputated, has awarded a sum of Rs. 25,000/- under this head (see Amul Ramchandra Gandhi Vs. Abhasbhai Kasambhai Diwan and Others, . We have pointed out earlier that a case of loss of limb stands in a category apart from a case of loss of sense or faculty and, more particularly, of eyesight. The award must necessarily be on a higher scale in the case of involvement of eyes. The trend in other countries also points in the same direction. Bearing in mind all the circumstances, it appears to us that for loss of vision in one eye, an award in the sum of Rs. 37,500/-under this head would be just, proper and adequate. This is the bracket of damages in which injury of this nature would currently fall in similar cases and the Tribunals would be well-advised to be guided by this award.

On behalf of the respondent-Corporation, two decisions were relied upon, both unreported, to urge, in the first place, that the amount awarded by the Tribunal was adequate and, in the next place, that in any case the award should not exceed Rs. 25,000/-, that being the amount awarded for loss of limb in Amul''s case1 and, on that basis, awarded in another case involving removal of an eye-ball pursuant to an injury received in accident.

In Vipinkumar Babubhai Surati v. Government of Gujarat F. A. No. 672 of 1971; decided on 9.3.73, by a Division Bench, the claimant, aged 24, was left with hardly any vision in his right eye and the vision which his left eye produced was only ''tubular'', with the result that he could see upto a certain distance in a straight line only with his left eye. The Tribunal rejected the claim petition as tortious act was not proved. An appeal was preferred to this Court which reversed the finding of the Tribunal on the question of negligence and under the head of pain and suffering, an award in the sum of Rs. 10,000/- was made. In making an award in that sum, reliance was placed upon the decision in Ranjitsingh''s case 13 G.L.R. 662. Having regard to the later decision in Babu Mansa2, an award based on the decision in Ranjitsingh''s case cannot possibly be pressed into service, since there is need for periodic reassessment of damages at certain key points on account of fall in value of money. Besides, we have earlier pointed out that even the decision in Amul Ramchandra Gandhi Vs. Abhasbhai Kasambhai Diwan and Others, which followed the decision in Babu Mansa Vs. The Ahmedabad Municipal Corporation and Others, and awarded Rs. 25,000/- as damages for partial loss of a limb, cannot provide a comparable guideline in cases of loss of sight in one eye. Under those circumstances, in our opinion, the unreported decision in Vipinkumar''s case F. A. No. 672 of 1971; decided on 9.3.73 can be of no assistance.

The other unreported decision is in Bhupendrakumar Kohli v. Oil and Natural Gas Commission F.A. No. 1176 of 1979; decided on 26.2.80. The plaintiff, aged 30, in that case lost his right eye on account of an injury received by him while at work. The damaged eye was removed and an artificial eye replaced the same. The plaintiff sued to recover damages in the sum of Rs. 85,000/- but the suit was dismissed on the ground that the plaintiff had failed to establish that the defendant or its officers were guilty of negligence. The unsuccessful plaintiff brought the matter in appeal to this Court which found that negligence was proved. As regards damages under the head "pain and suffering", the plaintiff pressed for an award in the sum of Rs. 15,000/- before this Court and he further claimed a sum of Rs. 10,000/- for loss of enjoyment and amenities of life. The claims were founded on the decision in Amul Ramachandra''s case. This Court found that having regard to the decision in Amul Ramachandra, a sum of Rs. 25,000/-at least was justifiably awardable. It was significantly observed, however, that since the plaintiff''s full claim under this head was being allowed, it was not necessary to make an in-depth examination of the question. Whether, having regard to the distinct nature of two injuries and their varying tragic after effects (loss of limb in one case and loss of sight in another), a still higher amount was required to be awarded under the combined head of pain and suffering and loss of amenities and enjoyment of life for the loss of one eye. It was observed, in terms, that the question will have to be examined in a fit case where an occasion arises. The circumstances aforementioned and the observations expressly made in the judgment indicate that the said decision cannot be pressed into service to tie us down to the figure of Rs. 25,000/- in awarding damages under this head in the instant case.

In our considered view, therefore, the award of damages under this head requires to be raised from Rs. 10,000/- to Rs. 37,500/-. On that basis, the claimant would be entitled to an additional award in the sum of Rs. 27,500/-.

(2) Pecuniary Loss :

The claim under this head was not articulately spelt out. There was a claim for general damages in the sum of Rs. 50,000/- for loss of eye-sight and brain damage and, in addition, there was a claim for special damages in the sum of Rs. 2,000/-for costs of medicines and medical treatment. Under these two combined heads, however, the compensation for pecuniary loss must be taken to have been comprised. The Tribunal awarded Rs. 920/- as special damages for costs of medicines and medical treatment and Rs. 25,200/- for economic loss.......

Now, so far as special damages are concerned, there appears to be an apparent mistake in awarding Rs. 920/- only, although the Tribunal found that there was no challenge to the expenses incurred by the petitioner on medicines and medical treatment. On the basis of the unchallenged evidence of the claimant on this point, he was entitled to an award in the sum of Rs. 1,150/- and not Rs. 920/-. This appears to be a clear case of mistake in calculation. The claimant will, therefore, be entitled to an additional sum of Rs. 230/- under this sub-head.

As regards the award of general damages for loss of "working capacity" meaning thereby "earning capacity", the award is obviously far too below a reasonable level. This is not a case of actual loss of future earnings as explained above. As in Niranjan''s case, so here, compensation, if any, will be awardable for loss of earning capacity which will have to be quantified by taking into account the financial damage which the claimant is likely to suffer because of his disadvantages in the labour market.

Bharat was aged 21 at the time of the accident. He was prosecuting studies in the Second Year, B.Com. class at the material time. He had secured 58% marks in each of the two preceding examinations, namely, S.S.C. Examination and Pre-Commerce Examination. In the First Year B.Com. Examination, however, he had failed in one subject. He had set his heart upon passing the B.Com. Examination and then passing the Chartered Accountant''s Examination and taking to that profession. However, on account of the injury in the eye, he had to leave studies in the midstream. There is no question now of his pursuing the professional career which it was his ambition to take to. He will have to give a new turn to his life and find some other means of livelihood which, in all likelihood, may not be as remunerative. It cannot possibly be doubted that in the labour market, he would be at a disadvantage as compared to any other person with normal eye-sight and better qualifications. Finding an employment will not, therefore, be an easy task for him, especially because he is not shown to possess any special skill. The fact that although his family was in difficult financial circumstances, he having lost his father long before the accident, he was not employed even upto the date of trial, itself proves the point. There is, in his case, therefore, a substantial and real loss of earning capacity as a result of the injury received by him.

Turning now to the question of assessment and quantification of the probable financial damage likely to be suffered by him, certain basic distinctions between his case and that of Niranjan are required to be borne in mind. In Niranjan''s case, there was a starting point based upon his earnings at the time of the trial. Precise data as regards his probable future advancement was also available. The handicaps and disabilities of the two individuals are also not comparable. By and large, Niranjan can be said to be better placed in the labour market now than Bharat. However, the background is different and so was the chosen course of life of the two prior to the accident. Bharat was a College student at the time of the accident desirous of prosecuting higher studies and taking to a remunerative profession. Niranjan, having passed the S.S.C. Examination, chose not to prosecute further studies and took employment in a Mill at the basic monthly salary of Rs. 38/-. The probable optimum and maximum earning capacity of each could not, therefore, have stood comparison in the pre accident days. The comparative aspects, on the other hand, are that both have suffered loss of earning capacity and belong to the same age group and have an almost equal span of working life ahead of them.

It is not easy to make an estimate of the present value of the probable financial damage which Bharat is likely to suffer as a result of the injury. Under the circumstances such as those which are present in the instant case, one has only to make an estimate--often a very rough estimate-- taking into account several uncertainties and imponderables. Had he not met with the accident, in all reasonable probability, Bharat would have achieved his ambition of becoming a Chartered Accountant. He would have settled down in the profession in course of time and earned, on an average, about Rs. 12,000/- to Rs. 18,000/-per annum, even on a conservative estimate. Now, as a result of the accident, there is a consequential change in the course of his life. His academic career has come to a premature end. There is no question, therefore, of his prosecuting his chosen career. There is no possibility also of his taking to any other profession or trade, having regard to his overall background, besides his handicap. It would appear that he will have to make a living by obtaining some employment which is suited to his handicap. Employment also will not be easy to find and, even if found, it may not necessarily be steady. Still, however, it would be unreasonable to proceed on the basis that he would not be gainfully employed at all. With all his handicap and even taking into account the fact at the date of the trial he was still unemployed, it would not be unreasonable to presume that in course of time, he would find some employment and that over the long years of his working life his average earnings would come to somewhere between Rs. 6,000/-and Rs. 9,000/-. This leaves a gap of about Rs. 6,000/- to Rs. 9,000/- per annum, say, Rs. 8,000/- between what would have been his likely annual income had he not met with the accident and the average annual income which he still might earn with all his handicap. This whole of this amount, however, cannot be taken to be the present value of the financial damage which he might suffer in future on account of his injury. All sorts of uncertainties and imponderables have to be kept in mind. For some reason or the other, unconnected with the accident, he might not have completed his academic career or even if he had completed the same, he might not have earned the income which he was reasonably expected to earn. He might have become injured in circumstances in which he might have received no compensation from any source. He might have met with an untimely death. Allowance must be made for all these contingencies or vicissitudes of life. On the other hand, in spite of his handicap, he might still find employment suitable to his present physical state and his expected earnings might rise higher than that estimated above. The circumstance that he is getting payment in present for the probable loss in future must also enter into account. In this case, therefore, taking into account all relevant factors, we would estimate one-half of the amount of Rs. 8,000/- per annum, that is to say, Rs. 4,000/-per annum as reflecting the present value of the loss of Bharat''s earning capacity. With such a long working life ahead of him, a multiplier of 15 can be appropriately taken. Accordingly, the damages under this head would work out to Rs. 60,000/-in place and stead of Rs. 25,200/- awarded by the Tribunal.

The aforesaid discussion would show that there will be an additional award of damages in the sum of Rs. 27,500/- under the combined head of pain and suffering and loss of amenities and enjoyment of life, Rs. 230/- as special damages for expenses of medicines and medical treatment and Rs. 34,800/- under the head of loss of earning capacity. In all, therefore, Bharat becomes entitled to an additional award in the sum of Rs. 62,530/-. The claim in his appeal, however, is restricted to Rs. 20,880/-. The actual award, therefore, can only be in the sum of Rs. 20,880/-. His appeal, therefore, fully succeeds, whereas the appeal of the respondent-Municipal Corporation fails.