Union of India vs P.S. Mahal

Mian Jalal-Ud-Din, J.—These are the two Civil first Miscellaneous appeals u/s 110(d) of the Motor Vehicles Act and arise out of the

judgment and the award of the Motor Accidents Claims Tribunal dated 7th of January, 1975 allowing the claim of P.S. Mahal, the petitioner

appellant to the extent of Rs. 36,242.00.

Briefly speaking the facts of the case as disclosed from the judgment of the Tribunal are: that Shri P.S. Mahal the appellant in case No. 40

(hereinafter referred to as 'the petitioner appellant') who was working as an Executive Engineer in the Central Public Works Department

(C.P.W.D.) at Jammu had gone to Udhampur on 28th of August 1969 in Government Jeep No. JKN-2462 which was driven by Shri Mohd

Akbar driver of the department. It was a left hand driven jeep. While returning from Udhampur to Jammu when the appellant was on Ramnagar-

Jammu road only 5 miles away from the City of Jammu, a military truck driven by respondent No. 2 was coming at fast speed from the opposite

direction. The driver of the said vehicle tried to overtake the military vehicle ahead of him and while doing so he came on the wrong side of the

road. He without observing the traffic rules and without blowing horn dashed his vehicle against the jeep of the petitioner appellant. The collision

caused a serious impact due to which the jeep was pushed back at a considerable distance as a result of which the petitioner appellant was thrown

out of the jeep and he received serious injuries. The driver of the jeep was also thrown out. The petitioner appellant became unconscious and was

removed to civil Hospital Jammu in a civil bus wherefrom he was flown to Chandigarh where he was admitted in the Postgraduate Institute on 29th

of August, 1969. He remained there as an indoor patient till 11th of January, 1970. The petitioner appellant had received serious injuries on the

skull face right clavical ribs, right hip and left thigh. He had also sustained fracture of right clavicle side in the chest, second, third, fourth, fifth, sixth

and seventh ribs, fracture in the skull. After he was discharged from the Postgraduate Institute he resumed his duty on 1st of May 1970. He

thereafter instituted a suit for compensation to the tune of Rs. 2,50,000,00, against the Union of India in the High Court on account of the injuries

sustained in the accident. The breakup is as under:

(i) Expenses incurred on treatment upto- ...Rs. 8,000/-

date and future.

(ii) Expenses incurred on Air fare and other... Rs. 500/-

transport charges, conveyance etc.

(iii) Expenses which the claimant would ...Rs. 54,000.00

incur on a driver and on attendant without

whom the claimant cannot do and which

expenses he could avoid in case there

would be no accident, calculated at Rupees

300/- per month for 15 years.

(iv) Pecuniary loss on account of loss of ...Rs. 54,000.00

prospects of promotion to the

Superintending Engineer's post at Rs. 150/-

P.M. for 3 years assuming that he would be

promoted at the age of 55, at which age he

was sure to be promoted, keeping in view

his seniority, merit and experience.

(v) Loss at Rs. 1000/-P.M. for 5 years ...Rs. 60,000.00

after the date of retirement inasmuch as he

could get a private employment at the said

salary easily after his retirement.

(vi) General damages for extreme anguish ...Rs. 1,22,100.00

and pain, partial and future disfigurement,

disability, partial and permanent, shortening

of expectation of life by at least 5 years

(assuming that the normal age 70 years) and

past and future loss of enjoyment of life.

Total ...Rs. 2,50,000,00

The case proceeded in the High Court till 9-4-1971 when Notification dated 14th of July 1970 was brought to notice of the court by the

defendant's counsel according to which the Motor Accidents Claims Tribunal had been constituted. District Judges of Jammu and Srinagar were

designated as the one man Tribunal and they were given exclusive jurisdiction to hear such claims. Consequently the plaint was ordered to be

returned to the appellant for presenting it before the proper forum. The plaint was actually returned to the counsel for the plaintiff on 15-4-1971. It

was presented before the then Tribunal (the District Judge, Jammu) on 15-4-1971 as a claim petition along with an application for condonation of

delay supported by an affidavit. Later on the case was transferred from the Court of the District Judge Jammu to the Motor Accidents Claims

Tribunal by an order dated 8-12-1971. Another application seeking condonation of delay u/s 110-A sub-clause (3) of the Motor Vehicles Act

was filed by the appellant's counsel on 23-11-1973. The respondents in their written objections to the claim petition joined issues with the

appellant on questions of fact as well as on law. Briefly speaking the claim was resisted on the grounds that it was not maintainable because the

driver of the military truck was discharging the sovereign power of the Union of India i.e. the defence of the country. The military truck was moving

or, normal speed and was on the right side when the accident took place. The respondents had no knowledge of any injuries sustained by the

petitioner appellant. The claim of the petitioner, it was pleaded, was fantastic and false.

The Tribunal raised the following issues in the case:

Is there sufficient cause for condoning the delay in presenting this petition? O.P. Petitioner

Whether the claim is not maintainable against the non-applicant on basis that the non-applicant is the employer of the applicant and was acting in

the discharge of non-applicant's duties at the time the accident took place? O.P. on non-applicants.

Whether the driver of the military vehicle in question was acting in discharge of the sovereign power of the Union of India, Non-applicant, and

the claim is not tenable on this account against the non-applicant? O.P. Non-applicant.

If the claim is not maintainable not having been preferred in proper form under the Motor Vehicles Act? O.P. Non-applicant

The following additional issues were framed on 16th of April 1972:

Whether the proximate cause of the accident in question was the rash or negligent act of the non-applicant No. 2?......O.P. Claimant.

In the event of issue No. 3 being not sustained what is the respective quantum of compensation which the claimant is entitled to recover from the

defendant or either of them?......(O.P. Petitioner.

Relief?

5-6. On issue No. 1 the Tribunal returned the finding that there was sufficient cause within the meaning of Section 110-A Sub-clause (3) of the

Motor Vehicles Act for condoning the delay in presenting the petition. Issues Nos. 2 to 4, were not pressed before the Tribunal so also before this

court. On issue No. 5 the Tribunal recorded the finding that the Proximate cause of the accident was rash and negligent act of respondent No, 2.

As regards the quantum of compensation to which the claimant was entitled the Tribunal was of the view that an amount of Rs. 36242.00 was the

appropriate compensation that could be claimed by the petitioner appellant. The break up of the award is as under:

Expenses incurred on treatment upto date and ...Rs. 6100.00

claim for future medicine has not been allowed.

Expenses incurred on air and other transport ...Rs. 142.00

charges.

Expenses which the plaintiff would incur on a Nil.

driver-cum-attendant.

Pecuniary loss on account of loss of prospects Nil.

of promotion to a higher post.

Estimated loss of Rs. 1000/-P.M. for 5 Years Nil.

upto the date of his retirement.

General damages for past and future ...Rs. 30,000,00

disfigurement, disability, partial and permanent,

shortening of expectation of life by at least 5

years.

The Tribunal did not agree with the petitioner that longevity of his life had been shortened by 5 years and that he was going to suffer any pecuniary

loss during his service tenure or thereafter.

Against the judgment and the award of the learned Tribunal both Shri P.S. Mahal and Union of India have filed separate appeals before this

court. As common questions of fact and law are involved in both the appeals, therefore this single judgment will dispose both of them.

In the appeal filed by Shri P.S. Mahal the petitioner appellant has contended that the Motor Accidents Claims Tribunal had erred in law and fact

in awarding only Rs. 36242 as compensation to him as against the amount originally claimed by him in the claim petition. Learned counsel

appearing on his behalf has submitted that the Tribunal has not correctly appreciated the evidence on the point of quantum of compensation relating

to issue No. 6. Even the evidence of Dr. Ved Parkash whom the appellant had produced before the Tribunal has not correctly been appraised.

According to the Medical evidence available on the record the petitioner appellant had suffered shortening of left lower limb by one inch and right,

foot drop on the right side, waisting of muscles from both sides, limitation of movements of both hip and knee joints. The petitioner appellant was

completely bed ridden till he was discharged from the hospital in the month of April 1970 when he could just stand up with the help of clutches.

The Claims Tribunal had also erred in not awarding compensation to the tune of Rs. 1,22,100.00 under the Head General damages and had only

awarded a nominal amount of Rs. 13,000/-. In the face of the unrebutted statement of Dr. Ved Parkash and also of the appellant the Tribunal

could not justifiably do so. The entire sum ought to have been allowed. According to Dr. Bansal, it is urged, the petitioner appellant has become

permanently disabled on account of the injuries suffered by him and this disability is to the tune of 30% which could go upto 35% in due course of

time as this disability could worsen the osteo-arthritic in the hip and the knee joints. The petitioner appellant would not be able to climb, to go

upstairs enter the bus and would not be able to pursue normal enjoyments of his life. The Tribunal omitted to take these important facts into

consideration while assessing compensation under the relevant Head. Also the finding of the Tribunal that the petitioner appellant was entitled to

Rupees 6100/- as compensation for the expenses of medicine and for future prospects was not correct. The appellant was still under medical

treatment and has to continue to remain so. Also there was every justification for awarding compensation towards the expenses of a driver-cum-

attendant which claim the Tribunal had disallowed as a whole. The appellant because of exigencies of his service has to use a motor transport of his

own. As he cannot drive himself, therefore per necessity he has to engage the services of a driver-cum-attendant. It is further urged that the

appellant had to undertake extra nutritious diet in the hospital for regaining his normal vitality during the time he remained bed-ridden. The

unrebutted statement of the petitioner appellant established that he is entitled to the entire amount claimed by him under this head. Learned counsel

for the petitioner-appellant has also assailed the finding of the Tribunal that his client was not entitled to claim an amount of Rs. 1000/- per month

after his retirement for 5 years to 10 years. As a matter of fact the appellant was a qualified Engineer and after his retirement he could engage

himself with some private firm and would be able to secure an appointment for him. In this way the legitimate amount the plaintiff could claim under

this head was Rs. 6000/- as assessed by him. But curiously the Tribunal has disallowed the entire claim under the head general damages. The

Tribunal has allowed a paltry sum of Rs. 30,000/- as against Rs. 1,02,000.00 claimed by the appellant which claim was very much on the lower

side The Tribunal failed to take into consideration all the relevant factors bearing on this head namely any past and future, disfigurement, disability

and partial and permanent shortening of left lower limb and loss of enjoyment of life.

For all what has been suffered by the appellant he was entitled to be awarded the entire amount claimed by him. Moreover, the appellant was

entitled to be awarded interest from the date of accident to the date of payment as also the costs incurred by him during the litigation The Tribunal

allowed interest at 4% only from the date of the award and not from the date of accident but from the date of the order. It has also not awarded

costs to the appellant. The appellant could legitimately claim all this.

The learned counsel for the appellant has submitted a detailed list of expenses incurred by his client.

In the counter appeal No, 36 filed by the Union of India Shri V.S. Malhotra the learned counsel for the Union of India has urged that the

judgment and the award given by the Tribunal are not sustainable in view of the fact that claim of the respondent was admittedly time barred and

there was no sufficient ground for condoning the delay. The tribunal had committed a grave error of law in admitting the petitioner to the benefit of

Section 110-A sub-clause (3) of the Motor Vehicles Act and for condoning the delay. Delay could not be condoned because the petitioner had

remained grossly negligent in preferring his claim before a wrong forum. He could not legally seek condonation for the time during which the suit

remained pending in the High Court. Ignorance of law or Notification could not be a ground for claiming condonation. Moreover, after the

petitioner was apprised of the fact on 9-4-71 about the constitution of the claims Tribunal he did not take steps to file the claim immediately before

the Tribunal but waited till 15-4-71 and then presented the suit before the Tribunal on that date. In this way the delay has not been explained. In

such a case it was incumbent upon the petitioner to explain the delay of each day.

It has also been urged that the Tribunal had recorded a wrong finding on the question relating to the negligence of the driver of the Military

vehicle and had wrongly fixed responsibility of this accident on him.

As regards the various claims made by the petitioner appellant the learned counsel has submitted that the appellant could not be allowed to

make capital of the accident and commercialise it with a view to derive any profit out of that. Certainly the claim of his future prospects of

employment could not be considered and allowed. It was after full and thorough appreciation of evidence that the Tribunal had come to certain

findings of fact and these findings could not be disturbed in appeal unless there were compelling reasons for the appellate Court to interfere with

those findings. The petitioner appellant also could not be allowed to claim compensation for his nutritious diet because he had to take the diet in

normal course and under all circumstances. It was not established from the evidence on the record that the appellant was forced to undergo

additional expenses under this head Also he could not claim any compensation for the engagement of the services of driver-cum-attendant. The

appellant can easily board a bus or can hire a taxi for performing his official duties. He has not done any field work as he has been posted in the

office.

As regards the claim relating to the payment of interest from the date of accident, it is submitted that it is purely a discretionary matter and the

Tribunal was under no obligation to award interest from the date of the accident. Interest is awarded only to avoid any delay that may be caused in

making payment of the claim awarded.

The first and the foremost question that we are called upon to decide is the question of the limitation and the condonation of delay in filing the

claim before the Tribunal.

The learned Tribunal in a well reasoned judgment has affirmed the stand taken by the petitioner appellant that the delay in filing the claim

petition before the appropriate forum had not been occasioned by any fault or negligence of his or that of his counsel. u/s 110 of the Motor

Vehicles Act claim for compensation is to be lodged within six months from the date of the accident. Under sub-clause (iii) of the aforesaid section

the Tribunal can in appropriate cases condone the delay on sufficient ground shown by the petitioner. In the instant case it is found that the

petitioner appellant had originally instituted suit for compensation before the High Court on 25-8-70. It was, however, on 14-7-70 that is before

the institution of the suit that the Claims Tribunal had been constituted and notification was published in the Gazette. The appellant's case is that

neither he nor his counsel was aware of the fact that the claims Tribunal had come into existence at the time when the suit was instituted in the High

Court. His counsel (Shri D.D. Thakur as he then was) made strenuous efforts in this behalf. He made thorough enquiries but all along he was told

that no such Tribunal had been constituted. Thereupon the appellant under the advice of his counsel instituted the suit. It was only on 9-1-71 that

the petitioner appellant came to know of the constitution of the Tribunal and he, thereupon requested the court to return the plaint to him for

presenting it before the appropriate forum. The plaint and the relevant documents, however, remained with the learned Judge trying the suit. It was,

on 15-4-71 that the plaint was returned to Sh. D.D. Thakur by the office of the High Court. The plaint was presented before the then Claims

Tribunal (the District Judge Jammu as it was then designated) on 15-4-71. The plaint was treated as a claim petition. From the evidence on record

especially from the statement of Sh D.D. Thakur J. (by then he had been elevated to the Bench) it is found that in spite of the best efforts made by

the learned counsel he could not find out from any source that the Claims Tribunal had been constituted and that it was only on 9-4-71 that he

came to know of the existence of the claims Tribunal when Sh. V.S. Malhotra produced the relevant notification before the court. The counsel lost

no time in making prayer to the court to return the plaint to him. The plaint was returned and he presented the same before the Claims Tribunal

without losing any further time. In this way it is found that the delay which had occurred was not because of any negligence on the part of the

appellant petitioner. He had engaged two senior counsel in the case and was acting under their advice. The engagement of two senior counsel by

the petitioner appellant sufficiently indicated that he had taken all possible precautions to avoid any possible lapse on his part and to ensure best

legal advice to him. Firstly it is found that the counsel had not erred in any way; secondly even assuming that the counsel had in any way erred that

could not be attributed to the petitioner appellant as he could not be saddled with any responsibility for the mistaken advice of his counsel. In this

view of mine I am fortified by a Single Bench authority of our High Court reported as 1974 J and KLR 44 wherein Hon'ble Sh. S.M.F Ali C.J.

observed as under:

............Mr. Kotwal had filed a personal affidavit that he had given a mistaken advice because he bona fide thought on an interpretation of Sec. 61

that no appeal would lie to the District Court but would lie only to the High Court. It may be that the learned counsel by sheer oversight was

looking into the provisions of the Indian Stamp Act rather than the State Act and even if this is so, it cannot be said that the advice of the learned

counsel was tainted by any mala fide motive. Further I might mention that even the District Judge who tried to sit in appeal over the High Court has

in fact held that no appeal lay to him. This shows that the advice of the learned counsel could not be anything but bona fide.

Again, in 1971 ACC C.J. 180 the Allahabad High Court had occasion to go into the question of delay and its condonation. The delay in that case

was attributed to the counsel for the petitioner in that case. K.V. Asthana J, observed:

There is no such rule of law that a party or litigant must be punished for the mistake or fault of the counsel. The greater the blunder of the counsel

the stronger is the case for the party whom he represents, to get redress from the Court of Judicial Tribunal unless on facts, it is established that the

party itself connived for some ulterior purpose with the counsel's action.

Again in The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, their Lordships observed that the words

sufficient cause"" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is

imputable to a party. To the same effect are the observations made in AIR 1937 276 (Privy Council) . Commenting upon the conduct of the

counsel their Lordships observed that if a party had acted in a particular manner on a wrong advice given by his legal advisor, he cannot be held

guilty of negligence so as to disentitle the party to claim sufficient cause u/s 5 of the Limitation Act. The argument of the learned counsel for the

Union of India that the appellant should have filed a claim petition before the Tribunal on 9th of April itself without waiting for the High Court to

return the plaint does not commend to reason inasmuch as no form as envisaged by Section 110 was available in those days Section 110 of the

Motor Vehicles Act provides that the claim shall be made before the Tribunal on the form prescribed by the rules. At the time the plaint was

presented before the Claims Tribunal no rules had been framed; at least no rules were brought to our notice. Also the petitioner appellant could not

present the plaint before the District Judge on 9th April because it was not returned to him on that day but on 15th April which is evidenced by the

note appended thereto. Thus each day's delay has satisfactorily been explained. The delay could not be imputed to any negligence or carelessness

on the part of the petitioner appellant. The same has rightly been condoned. We, therefore, find ourselves in agreement with the finding arrived at

by the Tribunal on issue No. 1.

Finding recorded by the Tribunal on issue No. 5 has not seriously been pressed by the counsel for the Union of India. On consideration of the

evidence led on this issue we are of the firm view that the finding recorded on the basis of the established facts do not warrant any interference by

us. The learned Tribunal has discussed the issue at length and has also sifted the evidence led by the parties on this issue. From the evidence

available on record, it is fully established that the proximate cause of accident in question was the rash and negligent act of respondent No. 2

namely Mahadev Patel while driving the military vehicle From the depositions made by Mohd. Akbar and Dwarka Nath as also from the statement

of the petitioner-appellant, it is found that on the date of accident the driver of the jeep in which the petitioner-appellant was travelling was going at

a normal speed and when he reached Ramnagar-Jammu road and was only a few kilometers from Jammu he suddenly detected the military vehicle

driven by Mahadev Patil respondent No. 2 coming on a wrong track speedily and trying to overtake another military vehicle just ahead of him.

Thus coming on the wrong side and without blowing any horn he dashed his vehicle against the jeep which caused the accident. As a result of the

serious impact the petitioner-appellant was thrown out of the jeep on the road side and he sustained serious injuries and became unconscious. It is

in evidence that the driver of the jeep tried to take his jeep to the extreme left to avert the collision and also applied brakes, but as the military

vehicle was moving fast it came in front of the jeep and caused collision. The evidence led by the respondent is against the circumstances and does

not inspire confidence. Photographs Ex. P. 4, Ex. P. 5, Ex. P. 6 and Ex. P 7 taken by Dwarka Nath P.W. at the place of occurrence soon after

the accident show the position of the jeep and the military vehicle involved in the accident.

From this it is positively established that the driver of the military vehicle was on the extreme wrong side and it was he who was responsible for

causing the accident as a result of which the petitioner appellant sustained injuries. I, therefore affirm the finding of the learned Tribunal on this

issue.

This brings us to the question relating to the quantum of compensation to which the claimant is entitled to recover from the respondents or

either of them. As stated above the petitioner appellant has claimed damages detailed headwise as follows:-

(i) Expenses incurred on treatment upto date and ...Rs. 8,000.00

future.

(ii) Expenses incurred on air fare and other transport ...Rs. 500.00

charges, conveyance etc.

(iii) Expenses which the claimant would incur on a ...Rs. 54,000.00

driver-cum-attendant without whom the claimant

could not do and which expenses he could avoid had

there been no accident, calculating at Rupees 300/-

per month for 15 years.

(iv) Pecuniary loss on account of loss of prospects of...Rs. 5,400.00

promotion to the S.E. post at Rs. 150/- per month for

3 years.

(v) Loss at Rs. 1000/- per month for 5 years after, ...Rs. 60,000.00

the date of retirement inasmuch as the petitioner could

get private employment at the said salary.

(vi) General damage for extreme anguish and pain, ...Rs. 1,22,100.00

past and future disfigurement, disability, partial and

permanent shortening of expectation of life

Total ...Rs. 2,50,000.00

Learned counsel for the petitioner appellant has not pressed the claim in respect of heads Nos. (ii) and (iv). He has, however, assailed the

findings of the Tribunal on other heads and has vigorously contended that the quantum of compensation awarded by the Tribunal in respect of

heads Nos. (i), (iii), (v) and (vi) is wholly inadequate and disproportionate to the gravity of the accident and the injuries sustained by the petitioner-

appellant. He has submitted that the petitioner appellant has become a cripple, a physical wreck who cannot work satisfactorily and cannot enjoy

all the enjoyments of life.

Now what the court has to do In such cases is to determine fair compensation for the lots sustained by the injured regarding his earnings

present and future, damages for pain and suffering, expenses incurred by him for treatment and loss of amenities of life and such other factors.

In 1969 A.C.J. 95 (CA) in Fletcher v. Autocar and Transporters Ltd. Lord Denning speaking for the Court observed:

It is a settled law that in cases of compensation for injuries what the courts have to determine is the fair compensation that should be awarded and

not the perfect compensation. After determining the loss under the various accepted heads, namely; (i) special damages, (ii) loss of future earnings,

(iii) additional expenses incurred as a result of the injuries (iv) damages for pain and suffering and loss of amenities of life, the courts should

consider whether the total thus worked out is a fair compensation, and reduce or increase the amount accordingly. It would be wrong to take each

of the items separately and then add them up at the end. These items are not separate heads of compensation. They are only aids to arrive at a fair

and a reasonable compensation. There is a considerable risk of error in just adding up the items. It is the risk of over lapping duplication.

Again, his Lordship proceeded to observe:

It has often been stressed that there should be what is necessarily to some extent a conventional scale of damages in accident cases (within certain

limits). This is necessary so that justice may be done not only between plaintiffs and defendants but also between plaintiffs and plaintiffs and

between defendants and defendants.

In the instant case the injuries sustained by the petitioner appellant have fully been described by Doctor Ved Parkash Bansal who has

appeared as witness in the case on the side of the petitioner-appellant before the Tribunal. According to him the petitioner-appellant remained in

Chandigarh Hospital from 29-8-69 to 11-1-70. He was bed ridden for all this time. He suffered deep agony and severe pain. The petitioner

suffered special as well as general damages as a direct result of this accident.

The Tribunal has allowed Rs. 6100.00 on item No. 1 i.e. cost of medicine and expenses incurred by the petitioner appellant at Chandigarh

hospital. The petitioner has not, however, proved as to in what way he can claim compensation for future medicines and also additional expenses

for nutritious diet in the amount of Rs. 1900/-. There is no evidence forthcoming to that effect. The uncorroborated statement of petitioner

appellant is not sufficient to entitle him to claim additional expenses for nutritious diet and future expenses for medicines. That the petitioner-

appellant has had nutritious diet in the Hospital and therefore, he must be compensated for that, is not established on evidence. This is also not a

reasonable proposition to which we can accede. In my opinion the Tribunal has rightly awarded Rs. 6100.00 as against Rs. 8000.00 claimed by

the petitioner appellant.

Head No. (ii). This has not been pressed.

Head No. (iii). The petitioner has claimed an amount of Rs. 54,000.00 as expenses which he would incur on a driver-cum-attendant without

whom he cannot do. He has calculated the same at Rs. 300/- per month for 15 years.

Petitioner's date of birth as stated by his counsel and not controverted by the respondent is 11th January 1920. The date of superannuation

according to him falls on 11-1-78. The accident took place on 28-8-69 when the petitioner appellant was of the age of 49 years. It is true that

because of the foot drop and the left lower limb shortening which the petitioner has suffered he has been rendered unfit to climb up a ladder to

board a bus and to drive his own car. As per necessity he has to engage the services of a driver at least for the period he has to remain in service.

The Tribunal has not allowed the claim against this head as it has observed that the petitioner has joined his duty since long. He is doing his normal

work, attending office and he is not in need of an attendant nor is he in need of a driver. The Tribunal has admitted that the petitioner appellant

cannot drive because of the foot drop and the limb but all the same he can go for a leisure walk and can engage a Taxi or board a bus.

In my opinion this is not a correct approach to the question posed before the Tribunal. As stated above, the left limb and the foot drop were

caused by the direct impact of the injury sustained by the petitioner by the accident. At least for 8 years i.e. from 1969 upto 1978, the date of his

superannuation, the petitioner-appellant has to engage a driver out of sheer necessity. Calculating average expenses which the petitioner-appellant

is likely to incur on the driver for 8 years at Rs 200 per month he can be awarded Rs. 19200.00 under this head. He is therefore, found entitled to

it.

The petitioner appellant has claimed Rs. 60,000 on account of loss he would suffer after the date of his retirement falls, because for his physical

disability to get private employment. He has calculated at Rs. 1000/- per month. In my opinion this claim cannot be allowed because these are

mere future prospects, or chances which cannot be visualised. If the petitioner-appellant had not met the accident and had not been disabled, one

could not say with certainty whether after his retirement he could get private employment. There is no evidence to the effect whether the petitioner

has any chances of his future employment after retirement with any firm or business concern or that the petitioner appellant would have fair chances

of reemployment if he were in normal health and had not been physically disabled. Moreover, it cannot also be said with certainty that the

petitioner appellant has lost all chances of future employment. He may not be able to do field work but he can attend the office of a private firm or

corporation and give his technical advice to them. For this his services can be engaged.

In my opinion the Tribunal has, therefore, rightly rejected this part of claim.

Head No. (vi) The petitioner has claimed Rs. 1,22,100.00 as general damages for head No. (vi). The Tribunal has allowed only Rs. 30,000/-

under this head. In my opinion the partial claim allowed is not commensurate with the disability suffered by the petitioner-appellant, with the anguish

and pain he has suffered, and also disfigurement, loss of past and future enjoyment of life. The petitioner appellant has substantially been deprived

of his power and capacity to enjoy the amenities of life. He has one inch shortening of the left lower limb, foot drop on the left side waisting of

muscles of both sides, limitations of movements of both hip and knee joints. From the date of discharge from the Hospital upto 8-4-72 the

petitioner-appellant had to go to Chandigarh for check-up. The petitioner cannot do any field work. He has to remain attached to the office, he

cannot go round and survey the field work, construct a dam or a bridge or a reservoir and thus perform feats of engineering and thus show his

ability in the discharge of his functions as an Engineer. According to Dr. Bansal the physical disability is likely to worsen in future due to the future

osteo-arthritic changes in the hip and knee joints.

In my opinion the compensation must be assessed in fair manner and must be commensurate with all what the petitioner appellant has suffered

and will suffer in future on account of his physical disability. In our opinion the claim to be awarded under this Head should not be less than Rs.

40,000.00 (forty thousand only).

Then comes the question of interest and costs. The tribunal has awarded interest at the rate of Rs. 4% from the date of order. In our opinion,

interest should be payable from the date of the presentation of the claim before the Tribunal. The petitioner appellant is also entitled to costs which

he has incurred in pursuing his claim petition. Petitioner's learned counsel has filed a statement of costs incurred by the petitioner-appellant in the

course of claim proceedings. However, taking into consideration costs incurred by the appellant throughout the proceedings including this appeal

are assessed at Rs. 2000/-.

The result is that the appeal of the petitioner appellant is partly allowed to the extent that he is found entitled to a total claim of compensation

from both the respondents in the amount of Rupees 65,442,00 with interest payable at 4% from the date of claim upto the date of payment of the

claim together with the costs assessed at Rs. 2000/-.

The appeal filed by the Union of India is hereby dismissed but without any orders as to costs in this Court.

Dr. A.S. Anand, J.

I agree.