State of Gujarat vs Dushyantbhai Nagjibhai Patel and Another

P.D. Desai, J.—An accident in which two vehicles collided with each other took place at Gandhinagar on October 14, 1974 at or about 5-30 p.m. at the intersection of four roads in which a Youngman lost his life and another sustained injuries. The intersection where the collision occurred is known as ''Gh. 4''. The vehicles involved were a truck-trailer bearing No. GTD 2974 owned by the State of Gujarat and registered in the name of the Executive Engineer, Capital Project Scheme and a scooter bearing No. DLU 3280 owned by one Pramodchandra Karunashanker Upadhyay. The scooter was being driven at the material time by one Dushyant Nagjibhai Patel and one Manoharsing Keshrising was riding on the pillion seat. The scooter was proceeding from Gandhinagar to Ahmedabad on a road which is known as ''Gh. road'' and which runs from north to south. The truck-trailer was proceeding on road No. 4 which runs from east to west. The collision took place at the intersection and as a result of the collision, Dushyant received extensive injuries, whereas Manoharsing died on the spot.

Two claim applications were instituted connected with the accident. Motor Accident Claim Application No. 48 of 1975 was instituted by Dushyant and Motor Accident Claim Application No. 44 of 1976 was instituted by Tejkunvar, widow of decided Manoharsing. The award made by the Motor Accidents Claims Tribunal, Ahmedabad Rural, in each claim application has given rise to different appeals. First Appeal No. 832 of 1976 and First Appeal No. 865 of 1976 are two cross-appeals arising out of the award made in Claim Application No. 48 of 1975. First Appeal No. 1034 of 1977, First Appeal No. 1188 of 1977 and First Appeal No. 60 of 1978 arise out of the award made in Claim Application No. 44 of 1976. One of the parties to the said claim application has also presented cross-objections in First Appeal No. 60 of 1978. We have heard the two sets of appeals consecutively. In view of the fact, however, that both the claim applications were tried separately and independent evidence was led and separate judgments were delivered in each of the claim applications, we propose to dispose of the two groups of appeals by separate judgments. By this judgment we are disposing of First Appeal No. 832 of 1976 and First Appeal No. 865 of 1976.

Those two appeals, as earlier stated, arise out of the award in Claim Application No. 48 of 1975 which was instituted by the injured-claimant Dushyant (scooter driver). The party-opponents in the said claim application were the State of Gujarat, Executive Engineer (Capital Project) and Maganji Kanji (driver of the truck-trailer). Though the New India Assurance Co. Ltd., which had insured the truck-trailer, was not joined as a party-opponent, notice (Exh. 118) u/s 96(2) of the Motor Vehicles Act, 1939 (hereinafter referred to as ''the Act'') was issued to the insurer through the Tribunal. The insurer appeared in the proceeding through an advocate (see Vakalatnama, Exh. 124) and it produced a copy of the insurance policy (Exh. 138) and by purshis (Exh. 135) it adopted the written statement filed by the State of Gujarat subject to clarification that its liability, if any, was limited as specified in the insurance policy.

The claim put forward in the claim application totalled upto Rs. 3,28,700/- and it was advanced under the following heads:

Rs.

Loss of income till the date of application 12,000/-

Medical expenses 4,700/-

Future medical expenses 2,000/-

Pain and suffering during the period of hospitalisation 10,000/-

Permanent disability, loss of prospects of marriage, etc. 1,00,000/-

Future pecuniary loss 2,00,000/-

3,28,700/-

Ultimately, however, the claim was restricted to Rs. 2,00,000/- in first instance and subsequently it was reduced still further to Rs. 1,00,000/-. The Tribunal assessed damages at Rs. 26,000/- under the following heads:

Rs.

Medicines 700/-

Special diet 1,500/-

Transportation 800/-

Loss of income till the date of application 3,000/-

Future pecuniary loss 10,000/-

Pain, shock and suffering 10,000/-

26,000/-

The Tribunal was of the view, however, that the injured claimant was guilty of contributory negligence and that the degree of negligence on his part was 50%. In view of the said finding, the Tribunal awarded a sum of Rs. 13,000/- only being one half of the amount of damages assessed by it as compensation to the injured-claimant. The Tribunal directed that the said amount shall be paid by the three opponents with proportionate costs and interest from the date of application till payment at 6 per cent per annum. Be it noted that though the opponents were directed to satisfy the award, in view of the provisions of Section 96(1) and (2) of the Act, the insurer too became liable to satisfy the award.

Aggrieved by the aforesaid award, the original three opponents (State of Gujarat, Executive Engineer and Maganji Kanji) have preferred First Appeal No. 832 of 1976 and the original claimant and insurer have both been joined as party Respondents in the said appeal. The claim in the said appeal is confirmed to Rs. 13,000/- being the amount awarded in favour of the injured-claimant. First Appeal No. 865 of 1976 is preferred by the injured claimant and the Respondents therein are the three original opponents and the insurer. The claim in the said appeal is in the sum of Rs. 62,000/-,

The Appellants in both the appeals have challenged the decision of the Tribunal on both the counts, namely, negligence and damages. The contention in First Appeal No. 832 of 1976 has been that on the facts and in the circumstances of the case, the truck-driver could not have been held guilty of contributory negligence at all and that the contributory negligence, if any, could not have been determined at 50%. The further contention has been that the award is excessive. The contention in First Appeal No. 865 of 1976 has been identical on the question of negligence. As regards damages, the contention has been that the award is grossly inadequate. We now proceed to consider these challenges.

Negligence

(a) Topography and circumstantial evidence:

In order to appreciate the rival contentions on the issue of negligence, it would be necessary to appreciate the topography of the site of accident and to highlight what was found on the location at the earliest point of time after the occurrence of the accident. The panchnama of the scene of accident, Exh. 69, which was recorded between 6-15 p.m. and 7-15 p.m., on the day of the accident, is helpful in this regard.

The panchnama shows that the ''Gh'' road, which joins Gandhinagar with Ahmedabad and on which the scooter was proceeding from Gandhinagar to Ahmedabad, runs north-south and road No. 4, which runs east-west, is referred to as the road connecting the Vidhan Sabha with the Science College. The truck-trailer was proceeding on this road from Vidhan Sabha side to the Science College side. The width of the ''Gh'' road is about 75 feet (37� feet on each side of the mid-line of the road, whereas the width of road No. 4 is about 50 feet (25 feet on each side of the mid-line of the road). There is an electric lamp post No. 4503 on road No. 4 near the scene of accident. Though the panchnama does not specify the exact location of the lamp post, the evidence of the truck driver, Magan, Exh. 131, makes it clear that the said lamp post is at the mouth of road No. 4 near the intersection and that it is in the middle of the road at that spot. It would thus appear that the said lamp post is situated in the middle of road No. 4 at the point where it meets the ''Gh'' road at the inter Section 18 feet to the west of the said lamp post fresh marks of scooter having been dragged were found. The Tribunal has rightly taken this spot which is within the intersection as the point of collision because the dragging of the scooter after the impact apparently seems to have commenced from this spot. A shoe was found lying 19 feet and a chappal was found lying 24� feet to the west of the said spot. A cloth-bag was found lying 36 feet to the west of the said spot and scattered around the cloth-bag were some books and loose papers. 37 feet to the west of the point of collision was found a broken frame of spectacles and a comb and broken horn of the scooter were found lying 2 feet further up on the western side. The scooter itself was found lying 42 feet away on the western side from the point of collision and it was in a badly damaged condition. The dead body was found lying 60 feet to the west of the point of collision. Near the dead body were found lying the metal basket which must have been attached to the scooter and a broken portion of the seat of the scooter. A chappal and a shoe were also found lying rear about. 22 feet away from the dead body in the western direction was found lying a broken portion of the mudguard of the scooter. 19 feet away from the dead body in the western direction there were blood marks on the road in the circumference of 21 feet. 26 feet to the west of the dead body was the scooter whose governor was in a broken and bent condition. No damage was found on the right side of the scooter. The front mudguard was damaged and it was found sticking to the tyre. On the left side of the scooter there were marks of fresh collision and the left side mudguard was in a pressed condition. The machine of the scooter was found projected outside on the right side. The entire left side of the scooter was found in a pressed condition. The marks of dragging of the scooter were found stretching from the point of collision to the spot where the scooter was actually found lying. 66 feet away to the west of the dead body was the rear portion of the truck-trailer. It was stationed on the southern edge of road No. 4 at that spot. The truck-trailer had ten wheels. Its total length was 32 feet. The length of the trailer was 22 feet, whereas its breadth was 6� feet and the platform of the body was 6� feet high from the ground level. The mud-guard of the right rear wheel of the truck-trailer was found in a pressed condition sticking to the wheel and there were signs of fresh scratches on the said mud guard. The colour of the scooter was found sticking to the mudguard on its damaged portion. The truck trailer was facing the western direction. There were no marks of brake having been applied on road No. 4 on the eastern side of the point of collision.

On the northern edge of road No. 4, at a distance of about 206 feet in the eastern direction from pole No. 4503 there is another lamp post. From the place where the said lamp post is situated any vehicle passing on the ''Gh'' road would be clearly visible. There are no trees or raised projection obstructing the view.

The topographical situation and circumstantial evidence as disclosed by the panchnama clearly indicates that both the roads were wide and open. The scooter, which was proceeding from north to south on the ''Gh'' road, could have been easily seen as it approached the intersection by the driver of a vehicle proceeding from east to west on road No. 4. The collision took place in the intersection itself about 18 feet away from the point where road No. 4 meets the ''Gh'' road. Since the scooter collided with the rear right wheel of the truck-trailer, it is obvious that the truck-trailer had entered the intersection and covered a distance of 18 feet in the intersection before the collision took place. If one bears in mind that the total length of the truck-trailer was 32 feet, this would mean that the whole of the truck-trailer measuring 32 feet from front to back was in the intersection at a point 18 feet away from the spot where road No. 4 meets the ''Gh'' road at the intersection. After the collision, the scooter was dragged for a considerable distance in which the truck-trailer was proceeding. The scratch-marks were found on the road proceeding to the west from the spot of accident upto the spot where the scooter was found lying. Since the scooter was found lying at a distance of 66 feet from the point of collision, it is apparent that it must have been dragged upto that distance after its collision with the rear wheel of the truck-trailer. The impact must have been severe because the scooter was not only found in a badly damaged condition but its various parts were also found lying scattered all throughout the road along the route on which it was dragged. Besides, the severity of the impact can also be visualised by the reason of the fact that after the collision of the front portion of the scooter with the rear right wheel of the truck-trailer, the scooter must have taken a turn on the right because the left side of the body of the scooter was found in a damaged condition and not its right side.

These circumstances leave no doubt in mind that the drivers of both the vehicles were negligent. The driver of the truck-trailer, which was a heavy vehicle of considerable dimensions, could have clearly seen the approaching scooter on the ''Gh'' road as it was proceeding from north to south even before he entered the intersection. It was his duty to have stopped, or at least, slowed down the vehicle while entering the intersection and to have taken all precautions to avoid collision with the approaching scooter. He apparently failed to take those precautions because no marks of application of brakes were found on road No. 4. So far as the scooter driver is concerned, his negligence is established by the fact that he collided with considerable force with the rear right wheel of the truck-trailer which had not only entered the intersection but had also covered a distance of almost 18 feet from the point of entry in the intersection. It is impossible to believe that if he had taken due care, he would not have seen such a huge vehicle in the intersection or could not have avoided collision with the said vehicle by maneuvering the scooter only two or three feet towards his left side so as to avoid collision with the rear right wheel of the said vehicle.

(b) Oral evidence:

The oral evidence on this issue consists of the injured claimant Dushyant (Exh. 29), Govabhai Merabhai (Exh. 61) and the truck driver, Magan (Exh. 131). We shall briefly summarise the effect of the oral evidence.

Dushyant has deposed that he was proceeding towards Ahmedabad along the ''Gh'' road and that he was driving on the correct side. After he entered and covered more than half of the intersection, a truck-trailer suddenly came from the left side at great speed. Its front right portion dashed with the scooter. He immediately became unconscious and knows nothing about what happened thereafter. He had a learner''s licence at the relevant time and there was no ''L'' plate or marking on the scooter. The learner''s licence was taken two years before the date of the accident. He had not seen the truck-trailer till the accident took place, although he had looked on both the sides when he entered the intersection and although any vehicle approaching the ''Gh'' road from road No. 4 could be seen. He denied the suggestion that the scooter had collided with the right rear wheel or mudguard of the said wheel and asserted that the collision took place with the front right wheel of the truck-trailer.

The evidence of the injured claimant strengthens the view that he cannot escape the charge of contributory negligence. He has clearly admitted that he had not seen the truck trailer till the accident took place and that this was so, although an approaching vehicle from road No. 4 could be seen before it entered the intersection. Ordinarily, such a huge vehicle as a truck-trailer would have been visible even before it entered the intersection. In this case, however, the truck-trailer had already entered the intersection and covered a distance of 18 feet from the point of entry. If the injured claimant failed to notice the truck-trailer which must have stretched across the intersection as he entered the same, it must be held that he failed to take due care while driving the scooter. But the want of care on his part becomes all the more apparent when it is appreciated that the collision took place with the rear right wheel of the truck-trailer. Although his version is that the collision took place with the front right wheel of the truck-trailer the same cannot be accepted in view of the damage found to have been caused to the last rear right wheel of the truck-trailer and the colour of the scooter having been found sticking thereto at the time when the panchnama was made. It would thus appear that if he had been careful, he could have slowed down and allowed the truck-trailer to pass or, in any case, he could have diverted his vehicle slightly to his left and thereby avoided the collision even without reducing the speed. The conclusion is inevitable, under the aforesaid circumstances, that either he was absent minded or his attention was diverted at or about the time when the collision took place.

We do not propose to place any reliance on the evidence of Govabhai for the reasons to be presently mentioned and it is, therefore, not necessary to discuss his evidence in detail. In the first place, the version of this witness is that the scooter collided with the front right part of the trailer. This version cannot be accepted in view of the factual findings recorded in the panchnama. In the next place, it is doubtful whether the witness saw the actual collision. In cross-examination he was confronted with his statement recorded by the police in which he had stated that on hearing the sound of collision, ''we saw that the accident had taken place in the middle of the road''. He denied having made such a statement. However, through the evidence of Police Inspector, P.B. Shukla Exh. 150, it has been proved that the witness had made such a statement during the course investigation before the police. This evidence affects the veracity of the witness who claims to be an eye-witness.

Magan has deposed that at the material time he was driving the truck-trailer slowly and was sounding the horn. The road was clear when he entered the intersection. After he had covered three-fourths of the intersection, suddenly there was a sound of collision with the trailer on the right side. He thereupon stopped and alighted from the vehicle. He found a scooter and two persons lying behind the trailer on its right side. According to him the total length of the truck-trailer was 35 feet. The length of the driver''s cabin was 5 feet. Immediately behind the driver''s cabin there was no built portion for about 8 feet and then there was the body of the trailer. The truck and the trailer were joined by a hook-pin. There was no conductor on the truck-trailer at the time of the accident, though there were some labourers who were occupying the trailer. He admitted, in terms, that he had not seen the scooter before the collision or before be alighted from the vehicle. He denied the suggestion that while entering the intersection he had not looked on the right that is to say, towards the northern direction from which the scooter was approaching, He also denied that there was no obstruction at the north-east corner of road No. 4 and stated that there was a raised projection to the extent of 5 feet at the said comer. At the same time, however, he admitted that at the extremity of road No. 4, that is to say, at the point which met ''Gh'' road, it was possible to see to the extent of 50 feet on the light side and after entering the intersection, the entire road on the right side would be clearly visible. His version was that at the spot where he entered the intersection, he had slowed down the vehicle but not completely stopped it. He had looked towards the right after crossing a little distance from the lamp post No. 4503 but he had not seen the scooter. This was so although the vehicle was right wheeled. He has given certain measurements in the course of his evidence but they are apparently not correct, having regard to the findings recorded in the panchnama and they need not, therefore, be alluded to.

The evidence of the driver of the truck-trailer makes it abundantly clear that although he was driving such a huge vehicle, he failed to take the care that was expected of him, especially when he was about to enter the intersection and even after he had entered the intersection. It is an admitted position that he did not see the scooter at any time. Even according to his version, at the point where road No. 4 met ''Gh'' road, a vehicle coming from the northern direction, that is to say, from the right side could be seen at least from a distance of 50 feet. Once the vehicle approaching from road No. 4 had entered the intersection, any vehicle approaching from the northern side could have been seen even from a greater distance because the entire road on the right side was clearly visible. In the light of what he has himself stated as above, it is difficult to accept his version that although he had taken the precaution of looking to the right, he had not seen the scooter while entering the intersection. Since the collision had taken place after he had already entered the intersection and covered a distance of 18 feet from the point of entry, it is clear that he had not taken the care of looking on his right side even after entering the intersection, for, if he had done so he would have undoubtedly seen the approaching scooter from that side. One cannot overlook in this connection that according to the panchnama, even from a point as far as 206 feet away from the electric lamp post No. 4503 in the eastern direction of road No. 4, any vehicle passing on ''Gh'' road would be clearly visible. Therefore, it is apparent that this witness never cared to look on his right side either before or even after entering the intersection and that he became aware of the presence of the scooter only after the actual collision took place. Besides, his version that he had slowed down the vehicle also does not appear probable because no brake marks were found on road No. 4 which ordinarily ought to have been found because such a heavy vehicle would leave atleast some marks even if the brake is applied gradually and not all of a sudden. The fact that the scooter was dragged to the extent of 86 feet from the point of collision also indicates that the truck-trailer could not have been driven at slow speed.

(c) Conclusion:

On an analysis of the evidence discussed above, the conclusion is inevitable that the drivers of both the vehicles failed to take care which it was expected of them to take when they were driving vehicles in their command, especially when they were approaching or were in the midst of an intersection. The submission made on behalf of the Appellant/s in each appeal that the driver of the other vehicle was alone negligent cannot, therefore, be accepted. The Tribunal''s finding that there was contributory negligence on the part of those in command of both the vehicles must, therefore, be accepted as correct.

As regards the degree of contributory negligence, the Tribunal has found that it would be fair to hold each of the two drivers equally guilty of negligence. An attempt was made on behalf of the Appellant/s in each appeal to fasten higher degree of negligence on the (sic) of the other vehicle. We do not think, however, that in a case of this nature, the proportion of negligence could be determined otherwise than to the extent fixed by the Tribunal. The evidence clearly leads us to the conclusion that the drivers of both '' the vehicles, having regard to the various circumstances aforementioned, must i.e. held to be equally responsible for the unfortunate accident. Under the circumstances, we concur in the view of the Tribunal that both the drivers are equally guilty of negligence.

Background for the assessment of damages

(a) Personal bio-data:

The injured-claimant was aged about 25 and was unmarried at the time of the accident. He had graduated from the Sardar Patel University, having obtained a Degree of Bachelor of Science in Agriculture in 1971. He had then done a Post Graduate Course of Diploma in Business Management at the Datamatic Corporation, Ahmedabad. His father was employed at the material time as Executive Engineer in the Gujarat Electricity Board.

(b) Employment Occupation:

After obtaining the aforesaid Diploma, the claimant had served for a period of about 11 months in the Ahmedabad Mercantile Co-operative Bank. It appears that he had thereafter taken up a job with Dena Bank and that his duty was to carry out village survey on agriculture. There is some dispute on the point whether it was a regular job or whether he was employed on contract basis. There is also a further dispute on the question whether he was continuing in the said job or whether he had given up the job and was carrying on business at the time of the accident. It is, however, not in dispute that before the accident he was employed in Dana Bank for a period of about 2� years. It is not clear on evidence as to what exactly was the remuneration earned by him. It does not appear probable that he could have been employed on a regular basis with Dena Bank prior to the accident because there are on record two documents which go to show that the occasion for regular appointment arose only in November 1975. At Exh. 73 is a letter dated November 18, 1975 addressed to the claimant by Deputy General Manager of Dena Bank informing him that pursuant to the written test and oral interview, he had been selected for appointment in the bank as Farm Assistant-cum-Clerk, subject to his being found medically fit by the bank''s authorised doctor and completion of other formalities. The claimant was required to submit to the Regional Manager, amongst other things, service certificates of the present and past employers in original. At Exh. 74 is the letter dated November 18, 1975 addressed by the Regional Manager of Dena Bank to the claimant whereunder he was informed that he was ''now taken up in the service of the Bank as a Farm Assistant-cum-Clerk on probation for a period not exceeding six months'' on total emoluments of Rs. 509.20 ps from the date-of joining. The claimant was thereunder also given posting at Shertha Branch and was advised to report for duty on or before November 24, 1975. These two communications received by the claimant from the authorities of Dena Bank clearly indicate that he could not have been in the regular employment at the time of or prior to the date of the accident. He could not have been offered a fresh appointment had he already been in regular employment, nor could he have been called upon to furnish service certificates of the present employers in original. The version of the claimant, therefore, that he was working on contract basis with Dena Bank appears to be more probable and acceptable.

It was the case of the claimant that about 15 to 20 days before the date of the accident, he had started the business of supplying industrial materials in the name of ''United Trading Corporation''. His mother was a partner in the said business in which he had 90% share, whereas his mother had 10% share. Before the accident, he had negotiated orders for supply of tarpaulin and fencing poles with the Gujarat Electricity Board at Gandhinagar and Ukai. The fact that a business in the name of United Trading Corporation was carried on was not seriously disputed. What was disputed, however, was that the business was not his own but that of his father who was at the material time serving as Executive Engineer, Gujarat Electricity Board at Dhuvaran and who was carrying on the said business in the name of the claimant''s mother. It is significant to note in this connection that on the day of the accident the claimant had gone to the Thermal Power Station at Gandhinagar for discussion for supply of tarpaulin and this fact does not appear to have been disputed in cross-examination. Indeed, the fact that the claimant was someway connected with the said business and that on the day of the accident he had gone to Gandhinagar in connection with the said business cannot possibly be disputed because the panchnama, Exh. 69, shows that a letter-pad and two cheque-books of United Trading Corporation were found lying at the site of the accident. It was the case of the claimant that he used to fill in the tenders and sign it himself. No attempt was, however, made on behalf of the contesting opponents to disprove this version by summoning any witness from the Gujarat Electricity Board with whom the claimant admittedly had business dealings.

The father of the claimant, Nagjibhai Dhoribhai, Exh. 75, has, in terms, deposed that the business was carried on by the claimant as a side business while he was working on contract basis with Dena Bank. Before the accident, the claimant had finalized two business transactions, one for Rs. 30,000/- and the other for Rs. 34,000/- and those transactions yielded a profit of about Rs. 6,000/. The orders in connection with those transactions were executed after the accident by the witness, in view of the fact that the claimant was unable to attend to the business. However, the execution of the orders took place on behalf of the firm and not on his own behalf. Under cross-examination the witness stated that there was no written deed of partnership.

It would appear from the evidence discussed above that a few days prior to the day of the accident the claimant had started business and that within a short period of about a fortnight he had concluded two business transactions which had yielded profit. As earlier pointed out, the fact that the business was carried on was not seriously disputed and the further fact that the claimant was connected with the said business and was actively attending to the said business could not possibly have been disputed. Beyond making a mere suggestion in the cross-examination that the claimant had no interest in the business and that the business was really carried on by his father in the name of his mother, no attempt was made to establish that the claimant had no interest in the business. We have found above that the version of the claimant that he was employed in Dena Bank on a contractual basis and that he was not a regular employee of the Bank is more probable. Under the circumstances, there would appear to be no impediment in the way of the claimant carrying on business along with such contractual employment. We are of the view, on an overall assessment of the evidence, that the fact that the claimant had commenced business a few days prior to the accident must be held to have been established. Even the Tribunal appears to have reached the same conclusion. It further found, however, that the business was ''more or less of a casual nature'' and that it was more due to the position of his father, who was an employee of the Gujarat Electricity Board, that the claimant had succeeded in procuring two orders. We do not think the evidence justifies the conclusion that the business activity was of a casual nature. There is no material for reaching such a conclusion. The claimant appears to be a hard-working and serious minded young man with the requisite background and qualifications to establish himself in business. Even if it is assumed that the claimant obtained the two orders because of the connection of his father, there is no reason to believe that he would not have prospered in the business in due course by gaining experience and nursing established connections and forming new connections. It would thus appear that the claimant was formerly employed on contractual basis with Dena Bank and that a few days before the accident he had commenced business.

As regards the post-accident-occupation, the claimant has deposed that on account of the various physical disabilities incurred by him, he was unable to attend to business and that at the time of the trial, he was not doing anything. Under cross-examination, the claimant stated that the business was discontinued after his father executed the pending orders. The claimant''s father Nagjibhai has also deposed that since the claimant was unable to move about after the accident, he was not in a position to continue the business and that he had therefore, taken up a job in Dena Bank. The two documents on record, exhibits 73 and 74, support this version. They establish that in or about November, 1975, the claimant was appointed on probation as Farm Assistant-cum-Clerk on total emoluments of Rs. 509.20.

(c) Post-accident physical condition:

Immediately after the accident the claimant became unconscious. He was removed to the Civil Hospital at Ahmedabad and was admitted as an indoor patient at about 8 p.m. on the same day in an unconscious condition. Dr. C.K. Gadhvi, Exh. 57, who examined him at that time found the following injuries on his person (vide Exh. 46):

(1) Contused lacerated wound 3" � �'' � 1/4" on left thigh.

(2) Contused lacerated wound 3" � 1/4" � 1/8" on right frontal region.

(3) Abrasion 3" � 2" on left side of back of chest.

(4) Abrasion 2" � 1" on right side of back of chest.

(5) Compound depressed fracture of right frontal bone.

(6) Fracture of shaft of left femur.

(7) Fracture of right tibia.

(8) Fracture of left ulna.

It would thus appear that besides two contused lacerated wounds and two abrasions there were four fractures sustained by the claimant on different parts of his body including a compound depressed fracture of the right frontal bone. According to Dr. Gadhvi, the claimant was discharged from the hospital on January 16, 1975. The claimant was, therefore, treated as an indoor patient for a period of little more than three months.

It is the uncontroverted version of the claimant in his evidence that he was in an unconscious state for 35 to 40 days. He underwent two operations, one for the head injury and the other for insertion of a nail in the left leg. Still another operation was performed later below the spinal cord. The left arm and lower part of the right leg were plastered. The plaster on the left arm was removed 15 days after the discharge from the hospital. During the period of hospitalization, he could not sit up in the bed. He was under severe pain. Even at the date of the trial according to the claimant, the dressing on the operational wound at the end of the spinal cord continued and there was inflammation and oozing of water. He was advised to undergo a course of physiotherapy.

The claimant has deposed that he was not able to do any work with the left arm. He was unable to lift any weight or close his fist. The left arm could not be bent so as to touch the shoulder. The palm could not be stretched. He was experiencing difficulty in walking and was unable to run because of the injury on the left leg. Fast walk or long walk tired him out. He could not sit cross legged and was experiencing difficulty in passing stool. His memory is affected and eyes start watering if he made an attempt to read. He gets headaches. Sleep is disturbed. There is disfiguration on account of a scar and dent on the right side of the forehead. He is unable to drive a scooter or a cycle.

Dr. M.T. Mehta, Exh. 81, Orthopaedic Surgeon and Honorary Professor of Orthopaedic at the Civil Hospital at Ahmedabad, has deposed that he had operated upon the claimant on October 15, 1974 for shaft of the left femur. A nail was inserted. At that time, it was found that he had depressed fracture on the skull, fracture of left fore-arm and fracture of tibia, fibula right side. Dr. Mehta examined the claimant again on February 26, 1975 and his findings are recorded in the certificate, Exh. 47. According to the certificate, Dr. Mehta found the following injuries and after effects of the injuries on the person of the claimant:

(1) Depressed fracture skull above right eye scar.

(2) Left fore-arm deformed and...(illegible).

(3) Fracture shaft femur left...(illegible).

(4) Fracture tibia-fibula...(illegible).

(5) Wasting of thigh.

(6)...(illegible).

(7) Partial loss of memory.

(8) Ulna upper one-third malunited...(illegible).

(9) Permanent disability is 75%.

In the course of his deposition, Dr. Mehta stated that the permanent disability of 75% as assessed on February 26, 1975 was of the person as a whole. Dr. Mehta again examined the claimant on October 6, 1975 and at that time the same condition persisted. According to Dr. Mehta, the disability was more in the right leg than in the left leg. The claimant would be able to sit cross-legged or squat but with pain. He would have difficulty in walking fast. There was high percentage of disability due to the head injury and its consequences. Though cycling was possible physically, balancing would not be possible because of the head injury. There was partial loss of memory also. Under cross-examination, Dr. Mehta emphatically stated that he could not agree that the injuries sustained by the claimant would heal with lapse of time. In terms, he deposed:

To be more correct the injuries have healed but the disability will remain. I do not agree that after some time he will be able to resume his normal duties.

It is worthwhile mentiong that Dr. Mehta''s deposition was recorded on January 3, 1976.

The evidence discussed above establishes that the unfortunate accident has left permanent after effects on the person of the claimant. There were four fractures and one of the fractures has left a dent and scar on the right side of the forehead. There is partial loss of memory and also some lack of control of movement as indicated by inability to balance himself on cycle on account of the head injury. There is disability in the left arm and both the legs. The disability in the right leg is of a higher order. The left fore-arm is deformed and it has no rotation. It cannot lift any weight. It cannot be raised upto the shoulder. The fist cannot be closed or the palm cannot be stretched. There would be difficulty in walking fast. Sitting cross-legged or squatting might be possible but not without pain. There are frequent headaches. Sleep is disturbed. There was wasting of thigh. There was permanent disability to the extent of 75% for the person as a whole. All these factors aggregated together leave no doubt that the claimant has suffered grievously so far as the physical condition is concerned as a result of the accident.

(d) Medical treatment and expenses:

As earlier stated, there was prolonged period of hospitalization upto little more than three months. Thereafter the claimant had to undertake a course of physiotherapy. Dressing of the operational wound below the spinal cord appears to have continued right upto the date of the trial. For the physiotherapy course the claimant had to travel by rickshaw every day, which cost him about Rs. 9/- to Rs. 10/- per day, as deposed to by him. According to the evidence of the claimant''s father Nagjibhai the total cost of medicines and special diet incurred by him was about Rs. 700/- to Rs. 800/-. The total expenditure was to the tune of Rs. 2,000/-. The claimant''s father, mother and other persons used to attend upon him at the hospital. They had to travel from Maninagar to the Civil Hospital and have incurred expenditure of Rs. 1,000/- approximately on transportation charges during the period of hospitalization After the operation the claimant was confined to an air-conditioned special room.

(e) Matrimonial prospects:

As earlier pointed out, the claimant is a young unmarried person. It is obvious that on account of the numerous handicaps and deformities, prospects of marriage would suffer. The claimant''s father Nagjibhai has in terms deposed that there were two or three offers of marriage before the accident. However, after the accident, there was not a single offer.

Assessment of damages.

(a) Damages for medical expenses, transportation charges, etc:

We have pointed out above that in the claim application the claimant claimed a sum of Rs. 6,700/- in all for the past and future medical expenses. The evidence led on behalf of the claimant at the trial was to the effect that an expenditure of Rs. 3,800/- approximately was incurred on medicines, special diet, transportation, etc. The Tribunal has assessed in all a sum of Rs. 3,000/- as the expenditure incurred under this head. So far as the aforesaid assessment of damages by the Tribunal is concerned, no submission has rightly been made on behalf of the owner of the vehicle. However, on behalf of the claimant, it has been urged that:

(1) Full claim to the extent of Rs. 3,800/- upto the date of trial ought to have been allowed.

(2) Compensation for future medical treatment and miscellaneous expenses ought to have been awarded; and

(3) Reasonable compensation on account of attendance and nursing charges by the family members during the prolonged period of hospitalization should also have been awarded.

So far as the cost of medical treatment, etc. upto the date of trial is concerned, in the face of the totality of the evidence on record, the Tribunal was in error in not awarding the full sum of Rs. 3,800/-. The claimant had a prolonged period of hospitalization and thereafter he was required to undergo physiotherapy. From these established facts it would be legitimate to infer that considerable expenses must have been incurred both on transportation and medicines, besides other items such as nutritional food, etc. There is direct evidence to this effect and it ought to have been accepted. In such matters, the Tribunal has to act on a reasonable estimate of probabilities and worldly experience. There was no reason why the full amount Rs. 3,800/- established to have been spent by the claimant ought not to have been awarded.

So far as the future medical treatment and miscellaneous expenses are concerned, the claimant''s evidence that even on the date of his deposition dressing was continued on the wound at the spinal cord and that there was inflammation and oozing of water from that wound has gone unchallenged. It would thus appear that the claimant was in need of medical attention and treatment even on the date of the trial. It cannot be gainsaid that having regard to the various disabilities incurred by the claimant, he would be required to incur some additional miscellaneous expenses on diet, transportation, etc. The claimant is entitled to be adequately compensation in this behalf.

There is no manner of doubt that the claimant is entitled to be compensated for attendance and nursing charges. In Bharat Premjibhai Vs. Municipal Corporation, Ahmedabad and Another, , it has been held that a Plaintiff is entitled to claim damages in respect of services provided by a third party, which were reasonably required by the Plaintiff because of his physical needs attributable to the accident and the question whether he was under a moral or contractual obligation to pay for the services is held to be irrelevant; the amount of the loss is the proper and reasonable cost of supplying the Plaintiff''s needs. If services which are reasonably required by a disabled Plaintiff are rendered to him gratuitously by a wife, relative or friend, the person rendering such services is entitled to be compensated; the Plaintiff can recover damages for the value of the services and must hold such damages in trust for the person who rendered the services to him. It is not necessary that the Plaintiff should have entered into a binding legal agreement to pay for the services. The value of the loss for the purposes of damages, or to put it differently, for the purpose of the ascertainment of the amount of his loss, is the fair and reasonable cost of supplying those needs. If the provider of such services gave up paid work or otherwise incurred lost of earning and also underwent incidental expenses to look after him, the Plaintiff can recover as special damages a specified amount upto the date of the trial which is equivalent to the loss of such third party. For future attendance and nursing, if need for the same is proved and the person providing voluntary service agrees to render the same as long as he can continue to do so, the Plaintiff can recover general damages at a certain years'' purchase on the basis of a datum figure which will be arrived at taking into account the financial disadvantage of the third party. Even if the provider of services had not been doing paid work, but only domestic duties in the house, the Plaintiff can still recover compensation for all the extra attendance on him on the basis of proper and reasonable cost of supplying those needs. The compensation in such a case would also be referable to the past and future financial value of the voluntary services rendered by such devoted provider and the measure of damages would be required to be worked out in the like manner as in the other case.

In the instant case, the evidence establishes that the claimant''s parents and five or six other persons attended upon the claimant during his hospitalization for the prolonged period of three months. The father who was working at Dhuvaran was required to absent himself from duty and to attend upon the claimant at Ahmedabad. The mother must have been required to attend upon the claimant in addition to domestic duties. It would not be unreasonable to infer from the evidence on record that even after the period of hospitalization ended, the claimant must have needed assistance of someone during the whole period of his treatment as an outdoor patient and that such continued assistance would be necessary for some more time to come.

We have held above that on account of medical, transportation and other expenses incurred by the claimant upto the date of trial, he should have been awarded a sum of Rs. 3,800/-. With regard to the nursing and attendance charges upto the date of trial and thereafter and with regard to future medical and other miscellaneous expenses, even on a conservative scale, the claimant would be entitled to a compensation in the like amount, that is to say, Rs. 3,800/-. To round up, it would be proper to award to the claimant a total compensation in the sum of Rs. 7,500/- under all the aforesaid sub-heads.

(b) Damages for pain, shock and suffering and loss of amenities and enjoyment of life:

It is well-settled that 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. Such damages constitute a conventional sum. A set of conventional principles have been evolved 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. The 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, .

We have pointed out above that in the claim petition, damages under this head were assessed by the claimant himself at Rs. 1,10,000/-. However, the actual total claim which included the claim under this head was ultimately substantially reduced. The Tribunal awarded a global amount of Rs. 10,000/- under this head. It appears to us that the award under this head is grossly inadequate.

In Babu Mansa Vs. The Ahmedabad Municipal Corporation and Others, , we have considered the question with regard to assessment of damages under this head in great detail. The claimant in that case was a young boy aged 15 who was engaged in the manual work of excavating sand. The injuries sustained by him were multiple. His right leg was fractured. One of the arms was also fractured, A piece of bone from near the eyebrow was removed. A nail was inserted in the right leg which was shortened to the extent of � cm. There was limping, wasting of thigh and fixed flexion deformity of hip. He was not in a position to sit cross-legged and could squat only with support. His normal gait was lost and the leg could not be bent. The permanent partial disability was assessed at 20%. In that case we held that if all those factors were borne in mind. The claimant would be entitled to a compensation in the sum of Rs. 15,000/- under this head.

In Bhaskarbhai Khandubhai Desa Vs. Remanial Nathubhai Patel and Others, , the claimant was a youny boy aged 12 or 13. He suffered multiple injuries as a result of the accident. There was a crushed injury on right foot with avulsion of the sole and extensive loss of skin substance, muscles and tendons on the anterior lateral aspect of left leg. There was a fracture of meta-tarsel second and tarsel bones. There was also a crushed injury on left leg with loss of skin from the anterior part of leg-tibia and fibula both bones were visible. There was a very prolonged period of hospitalization and the injuries were so severe that there was every likelihood of the right fore-foot being amputated when the claimant was examined by the expert. In that case it was found that the claimant was unable to place his left leg on the ground and that his right leg had become totally useless. Several operations were performed. The permanent disability was to the extent of 50 to 55 per cent in the right leg and about 10 to 15 in the left leg. In that case after considering the decision in Babu Mansa Vs. The Ahmedabad Municipal Corporation and Others, , a global award under this head was made in the sum of Rs. 22,500/-. It was pointed out in this connection that the nature of injuries were far severe and therefore, pain and suffering and loss of enjoyment and amenities of life were also of a higher order than in the case of Babu Mansa Vs. The Ahmedabad Municipal Corporation and Others, .

These two decisions, in our opinion, give sufficient guidelines for assessment of damages under this head in the present case. Herein we are concerned with an unmarried young man aged about 25. As pointed out above, the unfortunate accident has left permanent after effects on the person of the claimant. There were four fractures and one of the fractures has left a dent and scar on the right side of the forehead. There is partial loss of memory and also some lack of control of movements as indicated by inability to balance himself on cycle on account of the head injury. There is disability in the left arm and both the legs. The disability in the right leg is of a higher order. The left fore-arm is deformed and it has no rotation. It cannot lift any weight. It cannot be raised upto the shoulder. The fist cannot be closed or the palm cannot be stretched. There would be difficulty in walking fast. Sitting cross-legged or squatting might be possible but not without pain. There are frequent headaches. Sleep is disturbed. There was wasting of thigh. There was permanent disability to the extent of 75% for the person as a whole. According to the medical evidence, the disability would last for the life-time.

It also cannot be overlooked that there was a prolonged period of unconsciousness lasting for about 35 to 40 days immediately after the accident. Three operations were performed during the prolonged period of hospitalization which lasted for a little over three months There was severe pain during the entire period and even on the date of the trial, the wound at the end of the spinal cord had not healed. The suffering, therefore, continued even upto the date of the trial.

The evidence discussed above has established that on account of numerous handicaps and deformities, the claimant''s prospects of marriage are likely to suffer. The evidence suggests that whereas prior to the accident there were two or three offers of marriage, there was not a single offer after the accident. The chances of matrimony, if not altogether lost, are bound to be seriously affected.

The toll which the accident has taken is thus very heavy and its aftereffects are multiple. The assessment of damages under the present head has to be made on an overall estimate of the pain, suffering and loss of amenities and enjoyment of life on account of the multiple injuries. An integrated view of the totality of the after-effects of the manifold injuries will have to be taken so as to assess lump sum compensation.

Bearing in mind all the circumstances of the case and taking an overall view of the scale of pain, suffering and loss of amenities and enjoyment of life and in the light of the awards made by this Court to which reference has been made earlier, it appears to us that an award in the sum of Rs. 22,500/- under this head would be just, proper and adequate. For the disfigured and disjointed physical frame with which the claimant will have to learn to live for the remainder of his life likely to run into four decades atleast and for the pain, unsightliness, inconvenience and lost pleasures and amenities of life, an award in the aforesaid sum would be a just compensation.

(c) Damages for pecuniary loss:

As held in Bharat Premjibhai Vs. Municipal Corporation, Ahmedabad and Another, , damages for loss of earning are awardable under two distinct heads--special damages for the loss of past earnings and general damages for the loss of prospective earnings. The dividing line between the two kinds of damages is the time when the case comes on for hearing and not the date of the presentation of the claim petition. The expression ''date of the trial'' means the date on which the deposition of the injured claimant is recorded. Therefore, special damages must be awarded in respect of actual earnings or profits which have been lost as a result of injuries. The period upto which such loss of earning or profits has to be computed must be taken to be the date on which the deposition of the injured claimant is recorded. For the loss of prospective earnings general damages should be awarded.

In the instant case, the Tribunal assessed special damages for the loss of earnings upto the date of the presentation of the claim application at Rs. 500/- per month and on that basis, determined a sum of Rs. 3,000/- as damages for loss of earnings for the period from the date of the accident till the date of the presentation of the petition. In our opinion, the date upto which special damages at the aforesaid rate should have been ascertained is the date on which the deposition of the claimant was recorded, namely, October 30, 1975. Accordingly, special damages at the rate of Rs. 500/- should have been awarded for a period of one year and not six months. On that basis, the claimant would be entitled to an award in the sum of Rs. 6,000/- as special damages.

So far as the loss arising on account of deprivation of future earnings is concerned, it must be recalled that at or about the time the claimant''s deposition was recorded or soon thereafter, he had obtained employment in Dena Bank at Rs. 509.20 ps. per month and that he was not altogether without a source of livelihood. The Tribunal has found that his pre-accident wages were Rs. 500/- per month and on that basis, special damages have been awarded. We too have accepted that figure while enhancing special damages. The post-accident wages in the new employment with Dena Bank being almost the same, there is no immediate loss of earning. What we have to consider, therefore, is whether as a result of the accident, there was some reduction in his capacity to earn money on account of the damage presumed to flow from the injuries sustained. 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 be 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, be kept in mind in quantification of the damages; first, there must be a ''substantial'' or ''real'' (and not ''speculative'' or ''fanciful'') probability or risk of 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 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 and so on and so forth. Factors, both favourable and unfavourable, which, in a particular case, will, or may, be relevant, must be weighed and considered (see First Appeal No. 822 of 1974 and companion matters, decided on March 18/20, 1980).

So far as the award of the Tribunal for the loss of earning capacity is concerned, a sum of Rs. 10,000/- was assessed as the proper amount of damages. The Tribunal observed that there was no immediate economic loss and that there was also no reasonable probability of such a loss occurring atleast till the age of retirement of the claimant. Under such circumstances, it was not fair to the claimant a sum of money calculated on the basis of percentage of disability and percentage of loss of earning capacity. In such cases, according to the Tribunal a lump sum payment such as the one awarded would amount to just compensation.

It would appear that in reaching the aforesaid conclusion, the Tribunal has committed a clear error of law and that it has not borne in mind the correct principles which are to be applied in a case like the present. Consequently, the award under this head is grossly inadequate.

We must first consider whether there is any real and substantial probability of loss of earning capacity. On the date of the trial, though the claimant held an appointment in Dena Bank, it cannot be overlooked that he was not an old and tried employee who was allowed to rejoin duty after the accident. He was a newly selected candidate and the appointment was on probation, that is to say, on a trial basis. The continuance in the employment would depend upon the quality of the work put in by the claimant. The possibility that he might not be confirmed if his work was not found satisfactory on account of his several disabilities cannot altogether be ruled out. There is no evidence that he is capable of working in different capacities or in different employments. Therefore, in the event of his being discharged, he would be at a clear disadvantage in the labour market, having regard to his several handicaps. There is no question of his recommencing his business activities because the business had to be closed down on account of his being unable to attend to it as a result of the infirmities resulting from the accident. Even assuming that he would be confirmed in the post, his chances of promotion, if any to the higher post cannot be said to be fairly certain. The physical handicaps and more particularly, the after-effects of the brain injury, would always work as an impediment in his way and as between the claimant and another person who does not have any of those handicaps, the chances of promotion of the claimant are bound to be remote. In our opinion, therefore, there is a real and for that matter, substantial risk of loss of earning capacity.

What then is the present value of the probable financial damage which the claimant 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. The post he was occupying in the Bank carried total consolidated emoluments of Rs. 509.20 per month. His earning capacity at the stage of trial can, therefore, be estimated to be Rs. 500/- per month. There is no evidence as to what prospects the job offered and what were the chances of earning promotion if any, to the higher posts in the establishment of the Bank. Even assuming that there would have been improvement in his emoluments in the present post or that he would have earned promotion to higher post, there is no manner of doubt that any substantial raise in his emoluments would have come to him only over a period of years. It would not be unreasonable to assume, however, having regard to all the circumstances of the case, including his physical handicaps, that he would ultimately earn about Rs. 1,000/- per month. Prospective rise in earnings, as pointed out earlier, would have to be spread over long years. Besides, the probability that he might not be continued in service or that he might not earn any substantial improvement in emoluments cannot altogether be ruled out Therefore, striking a mean between the actual earning at the rate of Rs. 500/- per month at the time of the trial and probable future earning at the rate of Rs. 1,000/- per month, it would not be unreasonable to estimate the average earning capacity of the claimant to be Rs. 800/- per month.

Now, had the claimant not met with the accident, it is apparent that he would have carried on the business which was engaging his time, attention and labour at the time of the accident. We have held above that the claimant appears to be a hard working and serious minded young man. He had the requisite background and qualification to establish himself in the business, within a short span of about 15 to 20 days he had successfully negotiated for two orders and earned a profit of about Rs. 6,000/- in those two transactions. There is no reason to believe that he would not have prospered in the business in due course. Of course, some time would have elapsed before he settled down in the business on a firm basis. The probability that he might not succeed in the business or that the success may not be of a very high order must also be taken into account. Having regard to all the circumstances of the case, it appears to us that it would not be unreasonable to assume that had the claimant not met with the accident and he had pursued his business career, he would have earned atleast Rs. 1,500/- per month in due course as a result of his business activity. We are making a conservative estimate, for the evidence, in fact points in the direction of the probability of the claimant earning a much higher income in view of the fact that only two transactions yielded a profit of Rs. 6,000/- within a short span of about 15 to 20 days. However, bearing in mind all imponderables, it appears to us just and proper to quantify the probable average earnings in the business at Rs 1,500/- per month spread over the entire period of his earning life. Earning at this rate is, however, no longer possible in view of the fact that the business has been discontinued.

The aforesaid reasoning would show that there is a difference of Rs. 700/- between what would have been the probable future average monthly income of the claimant had he not met with the accident and the average monthly income which he might still earn with all his handicaps. This difference, of course, has been worked out taking a long range view of the occupational career of the claimant. The difference between the two in terms of actual loss comes to Rs. 8,400/- per annum rounding up it can be estimated to Rs. 8,500/-. The whole of this amount, however, cannot be taken to be, the present value of the financial damage which the claimant might suffer in future on account of his injuries because all sorts of uncertainties and imponderables have to be kept in mind. The claimant 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. The circumstance that he is getting payment in present for the probable loss in future must also enter into account. Taking into account all relevant factors, we would estimate one half of the amount of Rs. 8,500/- per annum, that is to say, Rs. 4,250/- per annum as reflection of the present value of the loss of the claimant''s earning capacity. With such a long working life ahead of him, a multiplier of 15 can be appropriately taken. Accordingly, general damages for loss of earning capacity can be worked out at Rs. 63,750/-, say, Rs. 64,000/- in place of Rs. 10,000/- estimated by the Tribunal. We might mention that according to the medical evidence in this case the permanent disability of the claimant has been assessed as a whole at 75% Our conclusion that there has been loss of earning capacity thus stands fortified by the medical evidence. As pointed out in Babu Mansa Vs. The Ahmedabad Municipal Corporation and Others, ) and Bharat Premji''s case, however, it is not entirely right to always make the future loss of income co-extensive with the extent of permanent disability. This is not an algebraic problem which can be solved by any abstract formula. On the basis of the evidence as to permanent disability, whether complete or partial an assessment must be made as to what effect such disability would have on the entire functioning of the body and how it would consequently affect the earning capacity. In other words, the effect on the earning capacity must be judged in the light of the importance of the lost or permanently affected limb in the vocation or profession or employment of the injured person. In assessing the damages aforesaid, we have while keeping in view the permanent disability assessed according to medical evidence, applied the aforesaid principles and we have not linked up the assessment of loss of earning capacity with the percentage of permanent disability, but having regard to all the relevant factors, including the various disabilities and the vocation of the claimant, arrived at an overall assessment in the light of the formula adopted by us in several other cases.

(d) Final conclusion:

As a result of foregoing discussion, we are of the view that in the instant case, damages are assessable under different heads as follows:

(1) Actual cost of medical treatment, etc. upto the date of trial and cost of future medical treatment, etc. and reimbursement for gratuitous services Rs. 7,500.00

(2) Pain, shock and suffering and loss of amenities and enjoyment of life-.. 22,500 00

(3) Economic loss upto the date of trial ... 6,000.00

(4) Loss of earning capacity 64,000.00

1,00,000.00

In the result, the claimant''s appeal (First Appeal No. 865/76) succeeds and it is allowed. The claimant''s success in the appeal would not however, enable him to recover fully the damages assessed as aforesaid because, as found by us earlier, degree of his contributory negligence is 50%, The actual damages recoverable by the claimant, therefore, stand reduced by 50%. Accordingly, the claimant would be entitled to recover the sum of Rs. 50,000/- as damages. Tribunal has awarded to the claimant a sum of Rs. 13,000/-. The additional amount to which the claimant becomes entitled as a result of this judgment, therefore works out to Rs. 37,000/-. The claimant will be entitled to receive the said amount from the Respondents jointly and severally with interest at the rate of 6 per cent per annum from the date of application till payment. The claimant will also be entitled to proportionate costs on the said amount of Rs. 37,000/- throughout. The Respondent shall bear their own costs of the claimant''s appeal.

The Respondents are directed to deposit the amount becoming payable as aforesaid in the Tribunal within a period of 8 weeks from today. Out of the amount deposited as aforesaid, the Tribunal shall arrange to have placed in fixed deposit a sum of Rs. 40,000/- in the name of the claimant in such a manner that interest becomes payable directly to the injured claimant monthly/quarterly. Out of the amount of Rs. 40,000/- to be placed in fixed deposit as aforesaid, a sum of Rs. 20,000/- shall be placed in fixed deposit for a period of 63 months and the balance amount of Rs. 20,000/- shall be placed in fixed deposit for a period of 125 months. The balance amount shall be permitted to be withdrawn by the claimant. It will not be open to the claimant to raise any loan against the aforesaid deposits or to withdraw any amount from deposit before their respective maturity dates save and except with the prior permission of the Tribunal.

So far as the appeal of the original opponents (First Appeal No. 832/76) is concerned, the same is dismissed with costs.

Insurer''s liability:

Before parting with the matter we must make a clarification about the insurer''s liability. We have pointed out above that the insurer of the truck-trailer was not joined as a party-opponent before the Tribunal and that the award made by the Tribunal directs only the original opponents to pay to the claimant the amount awarded by it. However, in view of the provisions of Section 96(1) and 96(2) of the Act, insurer (second Respondent) became liable to satisfy the award. The Tribunal, in terms, observed Rs. 50,000/- under the insurance policy (Exh. 138) since the award made by the Tribunal was far below the said amount, the question of limiting the liability for satisfaction of the award did not arise before the Tribunal. On account of the enhanced award made as aforesaid, the Respondents (including the insurance company) become liable to pay the claimant damages in the sum Rs. 50,000/-. The question of the insurer becoming liable to pay more than the liability covered by the policy, therefore, does not arise even in this appeal and therefore, the consequential question of limiting its liability to satisfy the said award does not arise. It has been held by this Court that so far as interest and costs are concerned, it is the liability of the insurer to pay the same by virtue of the statutory enactment of Section 96(1) and the relevant provisions of the CPC to the extent of the liability insured (see for example, First Appeal No. 866 of 1968 decided on January 31/February 1, 1973). Therefore, the insurer will also be liable to satisfy the award in respect of interest and costs.

It was submitted on behalf of the insurer, however, that the insurer''s liability in respect of ''any one accident'' is limited under the policy to Rs. 50,000/- in the instant case and that since the insurer has already paid an amount of Rs. 29,000/- (excluding costs and interest) in satisfaction of the award made in the other case (Motor Accident Claim Application No. 44 of 1976) instituted by the widow of the deceased Manoharsing), in addition to the sum of Rs. 13,000/- (excluding interest and costs) paid in satisfaction of the award under appeal, the liability of the insurer to satisfy the enhanced award be limited to Rs. 8,000/- only. We are unable to accept this submission. In First Appeal No. 693 of 1971/First Appeal No. 1202 of 1969 decided on September 30, 1976, a Division Bench of this Court has taken the view that in case of third party risk, Section 95(2), in terms, provides that the policy shall cover any liability in respect of ''any one'' accident and that on a true construction of of the relevant words, when there are several accidents, in case of every injured person there would be an accidental injury and that, therefore, in case of every such injured person, the insurer would be liable to satisfy the award. In view of that decision which has been consistently followed in this Court, the overall limit upon which reliance has been placed to buttress the contention for limiting the insurer''s liability to Rs. 8,000/- in the instant case cannot be accepted.