H.P. Road Transport Corporation vs Kumari Sheela, etc. etc.

Bhawani Singh, J.—All these appeals arise out of the same accident and except in three cases, namely, F.A.O. (MVA) No. 47 of 1982 (Balak Ram v. Smt. Vidya Devi and Ors. ), F.A.O. (MVA) No. 54 of 1982 (H.R.T.C. v. Balak Ram) and F.A.O. (MVA) No. 66 of 1982 (H.R.T.C. v. Smt. Kala Devi) there is a common award. However, these three appeals, decided separately also pertain to the same accident and the issues involved are also the same as in other appeals. Therefore, all these appeals are being taken up for decision by a common judgment.

The facts, in brief, are that Bus No. HPM-582, driven by driver Kirpa Chand (deceased) left Mandi for Mandap at about 12.15 p.m. on 24-2-1980. When this bus reached near Hawani (Riwalsar) at about 2 p.m. the accident occurred. The bus rolled down the mountainous region. A few passengers died while the Ors. sustained personal injuries.

The grievance of the claimants is that the accident was the result of rash and negligent driving on the part of the driver of the bus. It was overcrowded and was being driven at an excessive speed. These averments are contested by the Appellant Himachal Road Transport Corporation and it is asserted that although due to the death of the driver, it had the handicap of knowing the exact cause of the accident; however from the circumstances at the spot, it was found that the bus was descending on the road 13 feet wide with 1.14 gradients. There were two curves behind the place of accident and the gap in between these curves was about 50 to 60 feet. The brakes of the vehicle looked to have failed suddenly on the appearance of the first curve and the bus could not be struck in the gap between the two curves where there was a small water channel and two buffaloes, two cows and certain persons were standing and taking water there. Besides, a vehicle was also parked there. During this time, due to Sishu fair at Riwalsar, there was a great rush of pedestrian on the road. Thus bus, when could not be struck against the hill side in the first attempt, a second attempt was made at a short distance and it was struck against the edge of the hillock of the second curve but the vehicle could not be made to stop and it went ahead and the driver made an effort to turn it to the right but while doing so the retaining wall on the left side of the road sagged and the vehicle rolled down the hill. It is also stated that the vehicle was in a road worthy condition and was being maintained thoroughly. It is also asserted that the claimants having accepted Ex-gratia amount from the Appellant, they were stopped from filing the claim petitions. The Tribunal being of the opinion that issues in all these cases were almost of similar nature, therefore it proceeded to frame consolidated issues taking into consideration the facts and circumstances involved in all these matters. Thus the following issues were framed:

Issues: 1. Whether the Respondent No. 1 and 3 are neither proper nor necessary parties in this petition?

O.P.R. 1 and 3

Whether the Petitioner sustained injuries in the accident in question? O.P.P.

Whether the accident in question was a result of rash and negligent act on the part of the driver of the vehicle in question or the owner of the vehicle? O.P.P.

In case issue No. 3 is held in the affirmative, to what amount of compensation the Petitioner is entitled? O.P.P.

Whether the Petitioner is stopped from filing the present petition? O.P.R.

Relief.

After the trial, the Tribunal came to the conclusion that the complaint of the claimants that the accident was due to the excessive speed with which the driver was driving the vehicle and that the bus was over-loaded due to Sishu fair at Riwalsar on that day, had substance and was established on the basis of evidence. Therefore, it came to the conclusion that the accident took place due to the rash and negligent act of the Respondent and the claimants were entitled to compensation on account of the tortuous liability of the Appellant. Accordingly the claim petitions were allowed for different sums of damages.

The Appellant feels aggrieved by the awards of the Tribunal in these matters and the same have been challenged by these appeals.

The first point, forming part of the principal submission of Shri D.K. Khanna appearing for the Appellant, is that the conclusion of the Tribunal that the accident took place due to the excessive speed, over-loading and rash and negligent driving of the bus, needs to be examined as it goes to the root of the matter. Let broad features of the material evidence on this aspect of the matter be analyzed. Almost all the claimants have stated that the accident was the result of excessive speed at which the driver of the bus was driving the same at that particular time. They have also stated that the bus was overloaded. In their statements, they say, that 60 to 70 passengers were traveling in the bus at that time. Kumari Sheela (PW. 2) specifically states that the driver was driving the bus at an excessive speed and it rolled down the road into a Nullah. The suggestion that the bus was not being driven at an excessive speed has been specifically denied by her. The suggestion that the bus was not over-loaded has also been denied. It has been asserted by Shri D.K. Khanna that the evidence of excessive speed and over-loading of the bus is thoroughly vague and does not in fact signify anything. On such evidence, he urges, no conclusion of negligence of the driver can be drawn. I do not appreciate this submission of the learned Counsel for the simple reason that everyone knows what an excessive speed is. Obviously it is the driving of a vehicle at a speed which is not normal. Secondly, is it in evidence that due to Sishu fair at Riwalsar people in large number had gathered over there, therefore, it can safely be concluded that the buses plying on this road on this particular occasion, were over-crowded. Although the Appellant has made an effort to prove that there was no rush in the bus but the evidence so given cannot be considered to be convincing and believable due to the fact situation existing on this day. The specific stand of the Appellant has been the failure of the brakes and then failure of the driver to be able to strike the bus in between the curves and then against the hillock and then sagging of the retaining wall. This defense cannot be believed for variety of reasons, namely, that it has been asserted and proved by the Appellant that the bus was in a road-worthy condition and regularly maintained. It is also in evidence that the brakes of the vehicle were checked a day before at the workshop. In view of this evidence it is utmost difficult to believe the failure of the brakes as asserted. Coming to the scene of the accident, it cannot be believed that there was any effort on the part of the driver to strike the vehicle in the curves and then against the hillock. There is no evidence of the collapsing of the retaining wall. These pleas have been set up without any basis and cannot be believed. Furthermore, there is no cogent and convincing evidence to believe the story of failure of brakes and efforts on the part of the driver to strike it against the hillock and the sagging of the retaining wall. No Expert has been examined to indicate that the pause of the accident was the failure of the brakes.

Shri P.M. Sharma (R.W. 3) states that he gathered information on visiting the spot, but from whom this information he gathered, has not been revealed nor produced in defense. In those circumstances-the defense of the appeal and, can neither j be believed nor it fits into the circumstances of this case.

In the light of the evidence as ,discussed .above the conclusion which pan be drawn, is toot the bus was .over-laded, it ,was Jibing driven at a high speed and knowing these circumstances fully well, the driver was still driving the bus rashly with the result that b,? Lost control over it and it round .down into the Noah respiting, in this serious acid, not. The Tribunal has very exhaustively dealt with this, aspect of the matter and pane to this conclusion. There is no reason, in face pf the evidence on record, to take as view different from the one a beady .taken by the Tribunal on this aspect of the matter.

Shri D.F. Johanna made an effort, to submit that maxim reships Jicquitur not applicable in. tubes ease as in view. Of the cause of the accident specifically stick by the Appellant. The cause of-the accident was either known to the driver or the travelers. The driver of the, busiest .died in this accident, t and e travelers have .specifically asserted, that the cause was .the high speed, over loading and rash and negligent .decaying in which the x; vehicle was being driven. Suppose this evidence is kept apart, there and no evidence as to how .the .accident ha� taken place. In this view of the matter this maxim reships liqueur applies with full force. On that count as well the Appellant cannot escape the tortuous liability for the accident.

M.P. w I proceed. to deal .with initial cases one .after the pother''s the second supervision of the learned Counsel for the parties was confined to the quantum of compensation and interest on the .compensation amount only.

F.A.O. (MVA) No. 55 of 1982

Cross Objections No. 95, of 1982

H.R.T.C. v. Kumari Sheela.

In this accident according to Dr. P.P. Vaidya (P.W. 1), Medical Officer, Civil Hospital, Mandi, the following injuries were found on the person of the claimant:

Clean lacerated wound 2"xVx� on the left side of the face, one inch lateral to left eye.

Compound fracture right lower leg at the junction of upper one third and lower two third. Fresh bleeding was present.

On the basis of these injuries it has been stated that the claimant would not, in future. Suffer any pain while working as asserted by the claimant. The claimant submits that she was earning Rs. 200/- to 300/- per month by selling milk to one Hari Ram, shopkeeper of village Jarol who has not been examined in this case. Kirpal Singh (P.W. 3) goes a step further and states that the claimant was earning Rs. 400/- to Rs. 500/- per month by selling milk and knitting sweaters which fact was not even stated by the claimant herself. In the claim petition also the claimant has not stated that she was earning by selling of milk. There appears to be an exaggeration in her statement but it cannot be denied that, in this accident, the claimant sustained injuries as aforesaid and suffered on account of the same. She also sustained facial injury which is going to leave a permanent scar on her face. The Tribunal has awarded Rs. 5,000/- to her. The award of this amount cannot be considered to be arbitrary, excessive or unreasonable. The award is maintained and the appeal against the same is disallowed. The Cross objections are accordingly dismissed.

F.A.O. (MVA) No. 61 OF 1982

Cross Objections No. 89 of 1982 H.R.T.C. v. Smt. Mafhura Devi and Ors.

This claimant lost her husband, Khem Chandwho was a mason. His age is stated to be 30 years and he left behind his widow, Kumari Himadri, Lalit Kumar and Kamal Dev (Minors). The claimants state that the deceased was earning Rs. 20 per day as a mason. This evidence has not been rebutted by the Appellant. Rather it has been corroborated by Chowang (P.W. 4) and Ganpat (P.W. 5). Thus the deceased was earning Rs. 600/- per month and annually Rs. 7,200/-. As there is no evidence as to how much the deceased was spending on himself, therefore it can be said that there are 7 units in the family? per head it comes to about Rs. 85/-. The deceased was thus spending Rs. 170/- on himself leaving about Rs. 430/- for the family. Annually the family dependency comes to Rs. 5160/- and by applying multiplier of 15 years purchase, the compensation comes to Rs. 77,400/-. To this amount a sum of Rs. 3,000/- is to be added for loss of expectancy of life, taking the total to Rs. 80,400/-. In this way the claimant is entitled to Rs. 80,400/- and an amount of Rs. 64,920/- has already been awarded. The claimant is entitled to the remaining sum of Rs. 15,480/- with interest at the rate of 12% per annum from the date of the claim application till payment thereof. The award of the Tribunal is modified to this extent and the cross objections are also allowed to the aforesaid extent.

F.A.O. (MVA) No. 62 of 1982

Cross Objections No. 93 of 1982

H.R.T.C. v. Kripal Singh and Ors.

In this accident, Budhe Ram (46) and Kumari Lata(l) died leaving behind the claimants, namely, Kirpal Singh (son), Kumari Hima (daughter), Kumari Sheela (minor daughter) and Kishori Lal (minor son). It is stated that the deceased was earning Rs. 700/- per month from the agriculture work besids carrying on a Karyana shop at Jarol. He was earning Rs. 600/ from his shop and Rs. 100/- from the agriculture work. There used to be increase in his earning to Rs. 2,000/-to Rs. 3,000-during potatoes and apple seasons. Accounts have not been produced in this connection although Ram Dyal (P.W. 4) has been produced to corroborate the statement that the deceased was earning about Rs. 500/- to Rs. 600/- per.month and that the deceased used to keep accounts also. The Tribunal has assessed his income at Rs. 450/-per month and assessed the compensation accordingly and awarded a sum of Rs. 36,600/-by applying ten years purchase multiplier. No specific plea was made to increase this amount and in my opinion the amount awarded is quite just and calls for no interference.

On account of the death of Kumari Lata, a sum of Rs. 10,000-has been awarded besides Rs. 3,000/-as conventional damages. There is no evidence as to what this victim was doing at the time of the accident and to what she was expected to do in future. For lack of evidence on this aspect of the matter the sum awarded by the Tribunal appears to be just and reasonable. The

The Cross Objections are accordingly dismissed.

F.A.O. (MVA) No. 64 of 1982

Cross Objections No. 99 of 1982

H.RT.C. v. Dharam Chaffd.

Dharam Cliand (18) suffered from rupture urethra due to this accident as appears from certificate (Ex. P.l). He was admitted in the hospital on 24-2-1980 and was discharged on 13-3-1980. He complains that he was still feeling pain while urinating which takes him 10 to 15 minutes each time. Looking to the injury, its persisting tendency, the age of the claimant and its repercussions throughout his life, the amount of Rs. 5,000/-, awarded by the Tribunal appears to be quite arbitrary, unjust and inequitable. It deserves to be enhanced to Rs. 10,000/- more than already awarded by the Tribunal on all counts with interest at the rate of Rs. 12% per annum from the date of the claim application to the date of payment. The award of the Tribunal is modified to this extent. The cross objections are allowed to the aforesaid extent.

F.A.O. (MVA) No. 59 of 1982

H.R.T.C. v. Smt. Durgi Devi.

The claimant sustained personal injuries in this accident. She was admitted in Distiict Hospital Mandi, on 24-2-1980 as a case of fracture of pelvis and lacerated wound in leg. She was discharged from the hospital on 5-4-1980. Thus, she remained in the hospital as art Indoor Patient for one month and eight days. She complains that during her absence from her home she could not attend to her minor children, agriculture work and cattle etc. and after the discharge from the hospital she was not cured fully. On the point of income, she states that the same was Rs. 500/- to Rs. 600/- per month but no tangible evidence has been produced to establish this figure. The Tribunal has neither believed the injuries complained by her nor the income and awarded a sum of Rs. 5,000/- with interest at the rate of Rs. 6% per annum. In face of the nature of the evidence produced by the claimant, the award appears to be correct arid does not call for any change.

F.A.O. (MVA) No. 60 of 1982

Cross Objections No. 174 of 1982.

H.R.T.C. vs. Smt Kala and Ors.

Smt. Kala, claimant lost her husband Gegnu (27) in this accident who left behind his widow and five minor children. The deceased was an agriculturist and it is stated that he was HP- ROAD TRANSPORT CORPORATION V. KUMARI SHEELA 983 (Bhawani Singh, J.) earning Rs. 500/- per month. He was the sole bread earner of the family. It is asserted that the deceased used to do agriculture work and also used to sell milk in the market. This way he used to earn Rs. 500/- per month. In cross examination the claimant Karalla states that her husband used to keep 3 or 4 buffaloes and also cows. Thus, he used to sell about 10 or 12kg. of milk in the market. He has a license to sell the milk and the license was still in her house, so were the buffaloes. Now the buffaloes were not giving much milk due to the fact that she could not look after them properly. The Tribunal has estimated Rs. 300/- per month as the net income of the deceased. In my view this estimation is quite unreasonable in view of the clear, cogent and convincing evidence that the deceased was earning Rs. 500/- per month. There is no reason to disbelieve this version of the claimant. Accordingly the income of the deceased is assessed at Rs. 500/-per month. There are 9 Units in the family. After deducting Rs. 110/- (two units) that the deceased had been spending on himself, the accretion to the family would come to Rs. 390r per month and annually the figure would come to Rs. 4680/- and by multiplying it by 15 years purchase the total compensation payable to the claimants comes to Rs. 70,200/- plus Rs. 3000/- conventional amount taking the total to Rs. 73,200/-. The Tribunal has awarded Rs. 44,580/-. Therefore, the balance amount of Rs. 28620/- be paid to the claimants along with interest at the rate of Rs. 12 % per annum from the date of the claim application till the date of payment. The Cross Objections are allowed to the aforesaid extent.

F.A.O. (MVA) No. 63 of 1982

Cross Objections No. 102 of 1982 H.R.T.C. v. Atraa Ram. 18. Atma Ram (55) was an employee in the Punjab National Bank at the time of the accident. He was earning Rs. 935/- per month. He fractured both of his legs and the 7th, 8th and 9th ribs besides other multiple grievous injuries. He was admitted in the District Hospital, Mandi and then referred to the P.G.I. Chandigarh where he remained for 14/15 days under treatment and was operated upon for his legs. He went to P.G.I, for about nine times at the direction, of the doctor in connection with his medical checkup. The plaster of his legs was removed after nine months but even thereafter he was unable to walk. He further states that he entirely depends on Ors. for going from place to place for carrying him. At this advanced stage, the doctors told him that the bones would take enough time to heal up. At least 4 or 5 people went with him to Chandigarh and the bus fare from Mandi to Chandigarh was Rs. 16/- per head. For medical treatment he must have spent Rs. 6000/- to Rs. 7000/-. He has tendered Cash Memos Ex. P.l to Ex. P. 45 and Certificate of Dr. N.K. Sharma (Ex. P. 46). He further states that he was completely disabled on account of fracture of both the leg. He has denied that the expenditure incurred by him was reimbursed by the Bank.

The evidence, in this case, discloses that the claimant suffered from serious injuries and he is permanently disabled on that count and depends upon Ors. for going from place to place. It is also in evidence that the claimant had to go to P.G.I. Chandigarh on a number of occasions for treatment and had also to spend for medical treatment besides transport charges incurred not only on him self but on Ors. who have been accompanying him to that place. It would not be an exaggeration, in the light of the evidence adduced by the claimant, which he has practically become a cripple, a burden not only to himself but also to the members of his family for the rest of his life. The Tribunal has put the loss at Rs. 56,200/-on account of salary besides trips to Chandigarh along with attendants and drugs. However, it has been observed that the possibility of the claimant joining the service after recovery could not be excluded. It has been argued by Mr. M. L. Sharma counsel appearing for the claimant that the claimant could not join the service due to his physical disability which is persisting even now. There is no reason to doubt the statement of the learned Counsel and the same appears to be correct when seen in the light of the nature of the injuries sustained by the claimant. The Tribunal has awarded Rs. 56,200/- on account of salary besides expenditure on transport to Chandigarh, attendants and purchase of medicines. For injuries, shock, pain and disability an amount of Rs. 45,000/- has been awarded. The award in this case requires to be modified to the extent as under, the same is inadequate in view of the seriousness of injuries and their consequences:

(i) Loss towards salary for 5 years Rs. 56,100/-

(ii) Amount spent on transport attendants and medicines (Global amount) Rs. 22,540/-

(iii) For injuries, shock, pain and disability , and for attendants in future and loss of earnings (Global amount) .. Rs. 55,000/-

The total amount now payable after deducting the amounts already paid, comes to Rs. 32,540/-which will be paid to the claimant with interest at the rate of Rs. 12% per annum from the date of claim application till the date of payment. The Cross Objections are allowed to the aforesaid extent.

F.A.O. (MVA) No. 65 of 1982

Cross Objections No. 90 of 1982.

H.R.T.C. v. Smt. Puni Devi and Ors.

The claimants lost Inder Singh (32) in the accident which took place on 24-2-1980. He left behind his mother, widow and a minor daughter. He is stated to have a small scale Industry and was also earning from the agriculture pursuits: The Industry consisted of rice husking, cotton spinning and carding, oil crushing and flour grinding and saw mill. He was earning Rs. 30/- per day. Licence for the Industry has also been produced. According to Uttam Chand (P.W. 3) the net income of the deceased was about Rs. 25/- to Rs. 30/- per day and according to Sohan Singh (P.W. 4) the same was Rs. 35/- per day. The Tribunal has observed that the income has been exaggerated and has placed the same at Rs. 500/-per month. By applying a multiplier of 15 years purchase and adding conventional amount of Rs. 3000/- an award of Rs. 66,900/- has been made. It has not been shown by the learned Counsel appearing for the claimants that the award is in any way unreasonable and inadequate. In view of the evidence on record there is no justification to modify the award already given by the Tribunal. The Cross Objections are accordingly dismissed.

F.A.O. (MVA) No. 53 o/1982:

Cross Objections No. 94 of 1982 H.R.T.C. v. Surat Ram and Ors.

Smt. Bhadri Devi (23) died in this accident. She left behind her husband Surat Ram, Tilak Raj (minor son) and Kumari Ratni (minor daughter). It is stated that she used to earn about Rs. 300/- per month by doing agriculture and tailoring work although an effort has been made to high light the income from more than this. However, the Tribunal has fixed the same at Rs. 200/- per month from agriculture and tailoring work. Thereafter a multiplier of 15 years purchases 986 INDIAN LAW REPORTS (HIMACHAL SERIES) (1989) (He) has been applied. An award of Rs. 36,000/-plus 3000/-being conventional amount has been given. In face of the evidence on record which has been produced by the claimants, the award appears to be correct and does not call for interference. The Cross Objections are disallowed accordingly.

F.A.O. No. 66 of 1982

H.R.T.C. v. Smt. Kala Devi.

Smt. Kala Devi (30), engaged in agriculture, dairy and tailoring pursuits sustained a fracture in her left leg in this accident. She remained admitted in the hospital from February 24, 1980 till March 13, 1980. She was again admitted in hospital at Riwalsar on March 20, 1980 and April 18, 1980 and was discharged there from on March 28, 1980 and May 25, 1980 respectively. According to Certificate Ex. PA, Smt. Kala Devi sustained a lacerated wound on her right lower leg. Therefore, her story that she sustained a fracture is not correct as per the statement of Dr. P.P. Vaidya (P.W. 1). On the question of income, she stated that she used to keep buffaloes and sell 7 kgs milk to one Ramchu of Riwalsar at the rate of Rs. 2 per kg and after the accident she had to dispose of the buffaloes as she could not look after them. No evidence has been produced to sustain these pleas and the Tribunal has come to the conclusion that her version that she was selling milk was doubtful and could not be believed. However, she has been awarded an amount of Rs. 4500/- on account of shock and pain suffered by her. Nothing has been suggested that this amount is in any way inadequate or unreasonable. The award is, therefore, maintained.

F.A.O. (MVA) No. 54 of 1982

Cross Objections No. 91 of 1982 H.R.T.C. v. Balak Ram AND F.A.O. (MVA) No. 47 of 1982 Balak Ram v. Vidya Devi and Ors. 23. Balak Ram sustained head injury as a result of this accident and became insane. He was hospitalized from 24-2-1980 to 7-3-1980. Besides this head injury Anr. injury 1.5" X1/2"

with right sided hemi paresis. At the time of discharge he is stated to be of sound mental condition. According to Dr. B.M. Gupta (PW. 7), Balak Ram suffered from psychosis caused by posttraumatic. He was referred to Mental Hospital, Amritsar, for the opinion of a psychiatrist. He has sued through next friend initially through Jag at Ram and on his removal through his wife Smt. Vidya Devi. The Tribunal referred the matter for Expert medical opinion and a Board was constituted and on the basis of the opinion of three Doctors it came out that (a) Balak Ram had right sided hemi paresis, (b) he has got complication of post head injury amnesia i.e. he has developed unsoundness of mind and has lost the power of regulating his action and conduct. As a result of this opinion the Tribunal came to the conclusion that Balak Ram was insane. Thus he was allowed to pursue the claim petition through next friend. It has been stated that he was working as a clerk in the Beast Sutlej Link Project. He was getting salary of Rs. 350-400 per month. He had qualified Higher Secondary and Prabhakar Examinations and was 26 year old (Ex. P.l to Ex. P.5). He was obedient, hard working, soft spoken and a qualified person. He was discharged as Beldar on 15-10-1977. He had learnt English Typewriting with 40 W.P.M. speed.

From the evidence brought on record and as discussed above it is clear that Balak Ram was a young man, working as a clerk, had qualified Higher Secondary and Prabhakar Examinations, knew typewriting and had a promising career. Therefore, it is not difficult to assume that he was earning about Rs. 350/-to 400/- per month. Now due to the accident he is practically dependent upon Ors. and there is no possibility of his cure. In this way he will have to keep someone to look after him throughout his life. It can be safely said that in future he could earn more than the amount he was already earning on the day of the accident. The Petitioner has claimed compensation of Rs. 1,50,000/-. Now the question arises as to whether the amount awarded by the Tribunal can be called to be just compensation in the light of the facts and circumstances of this case. If not, to what compensation the claimant is actually entitled?

It is well settled that in such disablement cases compensation has always to be higher than even in cases of death since it is given to the living victim of the accident both for his personal loss and for economic loss. It can be said that the bodily injury is to be treated as a deprivation which entitles the victim to claim damages which vary according to the gravity of the injury. Further, due to this injury, there can be loss of earnings completely or partial due to the accident on his capacity to earn the same. Another consequence may be the loss he suffers on account of the enjoyment of life or full pleasures of living.

Decisions like Babu Mansa Vs. The Ahmedabad Municipal Corporation and Others, Ranjit Singh Gopal Singh v. Meenaxiben (1972) 13 GLR 662 , Bharat Premjibhai Vs. Municipal Corporation, Ahmedabad and Another, , Amul Ramachandra Gandhi v. Abhashbai Kasambhai Diwan and Ors. 1979 ACJ 460 and Brestu Ram v. Anant Ram and Ors. F.A.O. No. 150 of 1983 decided on 24-7-1989 (ILR 989 H.P. 838), are some of the many cases which throw light on principles involved in cases of personal injuries and the mode of calculation of compensation in such cases. Suffice it is to refer to the case of Amul Ramachandra Gandhi v. Abhasbhai Kasambhai Diwan and Ors. (supra).

In this case, the injured victim, a young boy (12), sustained injury to his right foot when it was crushed under the front left wheel of the vehicle. The right foot of the victim had to be amputated from above his ankle. It was found that the victim had suffered 20 per cent disability. The learned Judges of the Division Bench assessed the damages for pecuniary loss under two categories-one negative and Anr. positive. In the first category fell the deprivation of earnings or other items which would have been received but for the accident and had been taken away. In the second category fell the burden of expenses required to be incurred as a result of the accident. For the assessment under the first sub-head, an estimate of the probable future earnings, had there been no accident and the actual earning power after the accident has to be made and the difference between the two is the loss of earning capacity which will have to be justly compensated. Keeping in view the factors like reduced eligibility for employment or loss of chances of favorable employment and loss of career will have to be considered. The Bench felt that it was not easy to make such an estimate in the case of a young boy about whose prospective earning and probable loss one has only to make an estimate often a very rough estimate-based purely on guess work, as there are several uncertainties and imponderables involved. Under the second head, the new burden of expenses to be incurred, as a result of the accident, the cost of medical expenses, if any, which the injured may be required to incur in future and his need of nursing and constant attendance and extra nourishment, if any, have to be taken into account. The Court found in this case that the total probable income of the victim had been assessed at Rs. 300/- per month by the Tribunal and on the basis of the 25 per cent permanent disability, the prospective pecuniary loss was taken at Rs. 75/- per month and the net figure arrived at was Rs. 900/- per year and by applying the multiplier of 15 years, the net figure of Rs. 13,500/- was found payable to the claimant on the head of loss of prospective income but the Court observed that the Tribunal erred in principle in ignoring altogether the second sub-head of loss and in not awarding any compensation to the claimant. Besides, the assessment of the Tribunal in respect of the loss of earning capacity of the claimant was based on a gross under estimates. It was further observed by the Court that the best method to adopt would be to make a global assessment under both the sub-heads and to award compensation for pecuniary loss taking into account all the relevant factors. The eligibility of the victim for employment in future due to the accident was obviously to be reduced because of the injuries suffered by him. It was held that as compared to an able bodied person, the chances of the victim of accident were obviously reduced due to the handicap. Further, the artificial limb of the victim will have to be replaced from time to time as the claimant grows in age. The victim would constantly need some attendance besides periodical expenditure on new crutches. Needless to say that expenditure on medicines and nourishment will be needed by the claimant. Taking into consideration these factors, the Division Bench estimated the pecuniary loss of the Appellant at Rs. 250/- per month and on that basis calculated the annual loss at Rs. 3000/- and applying the multiplier of 15 years, the pecuniary loss was estimated at Rs. 45,000/-. So far as the pain and suffering is concerned, the boy aged 12 years, had got his right foot amputated above the ankle. In order to ascertain the amount of compensation payable for such pain and suffering by the victim on account of his right foot, it was observed that the victim will have to suffer social discomfiture and will have to give up many pleasures, amenities and enjoyment of life. On pain and suffering, the Court found Rs. 25,000/- to be the just and proper compensation keeping in view the fall in the value of money and the larger number of years the victim can live as compared to an old man.

Keeping in view the principles relevant in cases like the present one, the just compensation payable to the victim in this case has to be assessed. It is a case of personal injury not resulting in the death of the victim but he is to be compensated for the loss suffered by him which will render him completely a helpless cripple for the rest of his life. He is a burden not only to himself but to the whole family. It is a case where the victim has to spend the rest of his life in misery and in a state of complete helplessness as to his movement and living.

Heads of damages may be divided into two groups, namely, (1) those capable of calculation in terms of money, commonly known as pecuniary loss, and the other, those that cannot be easily assessed with accuracy, known as non-pecuniary loss. Pecuniary loss is the loss suffered by the victim due to I the loss of earnings or other profits which he had been earning land was to earn in future at the same rate or at some more i scale keeping in view not only the better avenues of promotions j and earnings but also risks to life. This aspect of the assessment can be made easily by taking into consideration at least i the monthly income the claimant had been earning if there is no evidence as to the future chances of better earning. Regard-ling the loss under the second head, damages maybe awarded for pain and suffering, loss of amenities and loss of enjoyment of life and it may not be necessary to trace out the exact amount; under each head. A global figure could be arrived at and paid as compensation under this head.

In view of the facts and circumstances of the present case the net monthly income of Balak Ram has been taken at Rs. 400/-. He had every chance of improving his future career but because of his present state of health that possibility is no longer there. It is not possible to look for any other source of income as no work can be done in such a state of health. There is, therefore, loss of future income and amenities of life besides loss due to pain and sufferings. Although there is no evidence as to be longevity in the family of Balak Ram, but he is an agriculturist doing manual work. Such a person normally and reasonably lives a long life an longevity can be fixed between 60 to 65 in this case.

I proceed to assess the compensation on the basis of Rs. 400/- which Balak Ram was earning from B.S.L. Project prior to the accident without misusing any amount usually deducted in cases of fatal accidents by applying a multiplier of 18 years. Thus the total payable compensation under this head would be Rs. 400 x 12 x 18=86,400/-. As far as non-pecuniary damages for shock, pain and suffering and for loss of amenities of life is concerned, global amount of Rs. 15,000/- is awarded on this count. In the absence of evidence, medical expenses cannot be allowed. Balak Ram has already been allowed compensation to the extent of Rs. 50,000/-. There-fore, balance amount of Rs. 51,400/- be paid to Shri Balak Ram. A through Smt. Vidya Devi, his wife, and none else, with interest at the rate of Rs. 12% per annum from the date of the claim application till the date of payment. It is further ordered that the amount of Rs. 51,400/- along with interest be deposited in Fixed Deposit Account in any Nationalized Bank at Shimla in the name of Balak Ram through the Registrar of this Court and only the amount of monthly interest be paid to Shri Balak Ram through Smt. Vidya Devi, his wife, subject to variation of this aspect of this order by this Court from time to time. The award of the Tribunal is accordingly modified to the aforesaid extent and in the aforesaid terms. It is made clear that Smt. Vidya Devi will be entitled to receive any amount pertaining to this award till she continues to be the wife of Balak Ram and looks after? Him. The Cross Objection are allowed to the afore said extent.

F.A.O. No. 47 of 1982 has been filed by Balak Ram through Jagat Ram (as next friend). The cross objections filed by Smt. Vidya Devi (wife) having been entertained and decided and she having been treated as the next friend of Balak Ram, I do not see any justification to allow this appeal separately filed by Jagat Ram as next friend of Balak Ram. The same is accordingly disallowed with no order as to costs.

In view of the examination of the matter as aforesaid the appeals are disposed of in the aforesaid terms with no order as to costs.