(per Aggarwal, J.):—

2. At the age of about 16 years, the appellant, while walking on the toad, was injured by a lorry belonging to the 1st respondent and insured with the 2nd respondent-New India Assurance Co. Ltd. As a result of this accident the appellant suffered permanent disability of 25 par cent on his left leg and in the circumstances, he filed an application before the Motor Accidents Claims Tribunal, Greater Bombay, claiming a sum of Ra. 35,000/- in all by was of damages. The Tribunal held the driver of the lorry negligent and the appellant guilty of contributory negligence to the extent of 60 per cent. The general damages were assessed at Rs. 14,000/- and special damages at Rs. 1324/- but on account of contributory negligence on the part of the appellant, the Tribunal awarded Rs. 7662/-. The present appeal is directed against the said judgment and award.

3. Respondent No. 1, the owner of the lorry, has filed Cross-objections challenging the validity of the award altogether.

4. The facts are that the appellant resides with his family at Plot No. 235, Koliwada, Bombay. On 18th September, 1973, at about 11 p.m, he was returning home from Gokul Temple at Kotiwada and was walking dong the Sion-Koliwada Station Road, on its left side from south to north. The appellant had perforce to walk on the road as the footpath was covered with debris, While the appellant was walking, a motor lorry came from behind and hit him and the rear left wheel of the lorry passed over the lower portion of the left leg of the appellant. His right leg was also slightly injured. The driver of the lorry did not stop and sped away from the scene. The number of the motor lorry “MRS-9358” was noticed by Purshottamdas, the brother of the appellant, who was at that time walking on the other side of the road. The appellant was first removed to his house which is not very far from the place of the accident. Thereafter, he was removed to the Sion Hospital where he remained as an indoor patient for two months. Afterward, he had to attend the O.P.D for eighteen months.

5. The 1st respondent in his written-statement submitted that he was not aware of and did not admit the accident in question and put the appellant to the strict proof thereof. He further denied that his driver was driving the vehicle in a rash or negligent manner or without due care and caution or without keeping proper outlook. He submitted that there was no occasion for the driver to blow the horn or warn the appellant. He also denied that the driver failed or neglected to apply the brakes or was having the 1st opportunity to avoid the accident. According to the 1st respondent, on 18th September, 1973, his motor lorry bearing registration No. MRS-9358 was proceeding from Bombay to Chanda a place near Nagpur-loaded with food grains. The said motor lorry did pass along the road near Kotiwada, but the driver was not aware of any person having come in contact with the motor lorry. At the material time, the motor lorry was driven by one Surjitsingh Chanansingh with due care and caution and proper outlook. The 1st respondent further submitted that assuming without admitting that there was an impact between the appellant and the said vehicle, the same could be only on account of the negligence of the appellant himself, inasmuch as the appellant alleged that he came under the rear wheel of the said motor lorry. According to the 1st respondent, the appellant was in any event guilty of contributory negligence and, therefore, the application was liable to be dismissed with costs.

6. On these pleadings, the Tribunal framed the necessary issues. In support of the claim, the appellant examined himself and his brother Purshottamdas and Dr. Patel, The 1st respondent did not enter the witness box nor examined any witness on his behalf.

7. However, it may be observed that before the trial, the appellant was examined by Dr. L.N Vora, Orthopedic Surgeon, on behalf of the Insurance Company the 2nd respondent, who issued a certificate dated 14th January, 1977, and before us it is common ground that this certificate was admitted in evidence by consent of the parties.

8. The Tribunal, on consideration of the oral and documentary evidence and that the appellant proved that he suffered injuries in the accident on account of the negligence on the part of the driver of the motor tony, but held the appellant guilty of contributory negligence to the extent of 50 per cent and in the result, swarded a sum of Rs. 7662/- in all, as indicated above.

9. Mr. Butant, learned Counsel appearing for the appellant, contended that the finding that the appellant is guilty of contributory negligence is wholly erroneous and that the amount of damages awarded in utterly inadequate and that the claim of Rs. 35,000/- preferred by the appellant is a modest estimate having regard to the facts and circumstances of the present case. Mr. Prism, learned Counsel appearing for the owner of the motor lorry and the Insurance Company, on the other hand, contended that the Tribunal is in error in arriving at the finding that the driver of the motor lorry is negligent. In any event, the Tribunal rightly found the appellant guilty of contributory negligence and that the total amount of Rs. 14,000/- arrived at by the Tribunal is not grossly low as to call for interference in the exercise of our appellate power.

10. Now, in order to prove negligence, the appellant has examined himself. He had testified that he was returning home from Gokul temple and the accident took place at about 11.15 p.m on the Sion-Kollwada Station Road and that he could not make-use of the narrow footpath as debris was spread on it. According to him, the motor lorry came from behind at a high speed. In the first place, the lights were not on, but the driver suddenly switched on the rights and when he looked at the motor lorry, his eyes were affected by the glare of the lights. As the motor lorry approached him, he got frightened and started running forward and was confused. The front portion of the motor lorry hit him on his back and then he fall down. The rear left wheel passed over his left leg lower portion. He also received injuries on his right leg. After the accident, the motor tony stopped for a while and then speed away. He could not notice the number of the motor lorry. His brother who was on the right footpath came to the spot along with others and with their support he was taken home and then to the Sion Hospital. In cross-examination, the appellant stated that there was some swelling on his back and there was little impact with his body and the motor lorry, as a result of which he fall down, and as the motor lorry took a turn, the rear left wheel of the motor lorry passed over his left leg. He, however, could not describe how he felt down, but was definite that he fell on receiving impact on his back. He denied that he was not hit from behind and admitted that there was no injury on his hip, head, elbows, chest or hands. He denied the suggestion that on account of his negligence while he was crossing, his left leg came under some vehicle. There was little swelling on his right leg. There is nothing in the cross-examination of the appellant to doubt his version about the injuries suffered by him on account of the wheel of a motor lorry passing over the lower portion of his left leg.

11. With regard to the identity of the motor lorry involved in the accident, there is the clear evidence of Purshottamdas (P.W 2), who had noted down the number of the lorry on a piece of paper and immediately on reaching the Sion Hospital, he had disclosed the number of the motor lorry to the Police Constable on duty. It appears that this led to tracking down the motor lorry bearing legislation No. MRS 9358. Even in the written-statement, the 1st respondent does admit that his motor lorry was proceeding on the same road at about the same time at which the accident took place, but denied that this accident was caused by the same lorry. In these circumstances, we have no hesitation in coming to the conclusion that it was motor lorry bearing registration No. MRS-9358 which was concerned in causing the injuries to the appellant.

12. The evidence of the appellant as well as Purshottamdas shows that the driver of the motor lorry sped away from the spot without carrying to provide help to the injured and continued his journey to Chanda. The respondents have not examined the driver of the motor lorry, as, according to them, the driver has absconded and therefore, he could neither be prosecuted nor examined by them. Mr. Prem was not able to satisfy us about the non-examination of the driver, although he tried to point out a letter on record stating that the driver had absconded Apart from the question of its admissibility, that letter does not show that the driver was not available for giving evidence. It seems that the respondents were not serious to discharge the burden of proof which shifted on them after the evidence was led on behalf of the appellant. We are inclined to accept the evidence led on behalf of the appellant. It prime facie shows that motor lorry bearing registration No. MRS-9358 was being driven in a rash and negligent manner and the same hit the appellant, as result of which the rear wheel of the motor lorry passed over the lower portion of his left leg and thereby the appellant sustained injuries.

13. The evidence of the appellant is commented upon by Mr. Prem on various grounds. The learned Counsel contended that they story of suddenly switching on the head lights and thereby getting confused is improbable. Now there is no inherent improbability in this version, nor any material is brought out in the cross-examination of the appellant and his witness Purshottamdas to disbelieve him. This contention is without any substance.

14. Secondly, Mr. Prem contended that the motor lorry was going at a slow speed and that is why witness Purshottamdas could notice the number of the motor lorry. We do not find any merit in this contention. The evidence of Purshottamdas does not indicate that on account of the motor lorry going at a slow speed, he observed its number. He noted the number of the motor lorry from the rear number-plate. There was no effective cross-examination of the witness on this point. The evidence of the appellant shows that after the accident the driver did stop for a while but then sped away. In these circumstance, it was possible for witness Purshottamdas to note the number during this period.

15. Thirdly, it was contended that the version of the appellant that the front portion of the motor lorry had hit him on his back should be disbelieved because no injury was found on the back of the appellant. This argument overlooks the swelling on the back of the appellant as deposed to by him. The case papers maintained by the Sion Hospital were produced through Dr. Patel and nothing is brought out in his cross-examination to show that the claim of the appellant about the swelling on his back was untrue. We, therefore, do not find any merit in this contention.

16. Fourthly, it was urged that since the appellant could not describe how he fell down, his entire evidence deserves to be rejected. We are not impressed by this submission. It appears to us that having regard to the nature of the question put to the appellant, he could not follow it and therefore, he stated that he could not describe how he fell down all the same he was sure of he circumstances and the sequence in which he fell down. In his cross-examination, he maintained that he was definite that he fell on receiving impact on his back with the motor lorry. It appears that in this state of evidence, the cross-examiner did not further pursue the line of cross-examination about the inability of the appellant to describe how he fell dawn.

17. Fifthly, it was forcefully contended that the say of the appellant that a sum of Rs. 510/- was paid to a boy who was employed to look after him in the Sion Hospital, is falsified by the evidence of witness Purshottamdas, according to whom, no boy was engaged and that the members of the family ware looking after the appellant. This discrepancy in the evidence, according to the learned Counsel for the respondents, affects the credibility of the appellant so much so that he should be wholly disbelieved. We are not impressed by this submission. The evidence, on this point is at some variance but there is no reason to take the view that the appellant was motivated to inflate his claim on this score. Having regard to the entire nature of the claim, we do not think that the appellant was actuated by any dishonest motive to sat up a false claim of Rs. 510/-. It is possible that witness Purshottamdas, though a brother of the appellant, was not fully aware of the arrangements made at the hospital.

18. Before proceeding to consider the question of contributory negligence apportioned by the Tribunal in the ratio of 50:50 on the part of the appellant and the driver of the motor lorry No. MRS-9358, it is useful to know the following opinion expressed by the Tribunal in holding the driver negligent in driving the motor lorry:—

“I have carefully considered the argument and have come to the conclusion that with all the discrepancies on record in the evidence of the applicant and his brother, the fact remains that while the applicant was proceeding along the road from his left side, the vehicle came from behind and his left leg was crushed by the left rear wheel of the lorry. That by itself shows that the driver had not kept a proper lock-out and had not given a warning before hand. It is not that when the impact is only with the rear wheel of a heavy vehicle, that the driver can be presumed to be innocent. It is the situation that has to be looked into. There was no other traffic on the road. A special duty is cast on the driver of heavy vehicles to see that the vehicles do not dash against any pedestrians who may even cross the road from infront of the vehicle suddenly. A driver should always be in a position to control the vehicle to meet such contingencies. The negligence of the driver is apparent on the face of the record by the very fact of the applicant's left leg having been crushed by the rear wheel of the lorry. It is improbable that any driver would immediately stop on the road and not sped away. In the final analysis I have come to a conclusion that the last opportunity was with the driver, which he had not availed of and, therefore, it must be said that the applicant had sustained injuries on account of the negligence on the part of the driver of the vehicle No. MRS-9358 at the alleged time, date and ploce.”

19. The learned member of the Tribunal then proceeds to observe:—

“The aforesaid finding, however, does not mean that the applicant was not to be blamed at all. On the other hand, his evidence, which consists of a number of particulars which are in the nature of an after-thought, shows that he was guilty of a high degree of contributory negligence, it appears that he was inattentive of a heavy vehicle coming from behind him while he was proceeding ahead. The story of sudden switching of the lights by the driver appears must have tried to run-across the road, possibly because his brother was on the other side, some distance ahead of him, or might have himself lost his balance on the approach of the vehicle and thereby got his left leg crushed under the left rear wheel of the lorry. Had he not become confused in mind and had not started running ahead, as he himself stated, the impact would have possibly been avoided. Even in that case, I have already held that it was the duty of a driver to have avoided that accident, by bringing the vehicle to a dead halt. Having regard to the entire circumstances on the record. I apportion negligence of the driver and the contributory negligence of the applicant in the ratio of 60:50.”

20. The appellant by his evidence has established that the injuries wore caused by the negligent acts done by the driver of the motor lorry, inasmuch as the driver drover the motor lorry at a high speed, without due and proper care far the safety of the users of the road, or without keeping a proper lookout for the appellant who was walking on the road dose to the footpath which was not available for the use of the pedestrians. The appellant has further established that it was the motor lorry that dashed against him and ran over his left leg. It is evident that the driver even did not notice the presence of the appellant on the road, the 1st respondent has pleaded in his written-statement that the driver was not aware of any person having come in contact with the vehicle which was driven with due care and caution and proper look-out. The respondents have chosen not to establish this defence. It is clear that the driver failed in his duty to keep a good look-out and drove the vehicle under such circumstances that he was not in a position to save the appellant from the impact. From the evidence on record, it is legitimate to infer that the driver had a clear view of the oncoming traffic or pedestrians as there was no traffic on the road at the time of the accident which occured at 11.15 p.m

21. The appellant has thus discharged himself of the burden of proving in the affirmative the negligent acts of the driver and the burden shifted on the respondents. It is well settled that the burden of proving contributory negligence is on the defendants; it is not for the plaintiff to disprove it. In 1(Lewls v. Denye), (1939) 1 K.B 540 at 554, du Parcq L.J has explained:—

“In order 10 establish the defence of contributory negligence, the defendant must prove first, that the plaintiff failed to take ‘ordinary care of himself’, or, in other words, such care as a reasonable man would take for his own safety, and secondly, that his failure to take care was a contributory cause of the accident.”

“The amount of care which a person may reasonably be expected to take necessarily varies with the circumstances and with the conditions actually prevailing at the material time. In order to discharge the burden of proof it is not necessary for the defendant to give evidence about such matters, because contributory negligence can be inferred from the evidence adduced on the plaintiff's behalf. (See Charlesworth on Negligence, 6th Edition, Paragraph 1192 at page 723).”

“So the question is whether contributory negligence is brought out and established on the evidence adduced on behalf of the appellant. Before we embark upon the answer, it is important to know the meaning of contributory negligence. Here again, we go back to Charlesworth on Negligence, paragraph 1181 at page 716”:—

“The expression ‘contributory negligence’ is too firmly established to be disregarded, but unless properly understood it is apt to be misleading, it applies solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plain-tiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning.

Contributory negligence is an expression meaning ‘negligence materially contributing to the injury’, the word ‘contributory’ being regarded as expressing something which is a direct cause of the accident. However, the word ‘negligence’ is not used in its usual meaning. Negligence ordinarily means breach of a legal duty to take care but as used in the expression contributory negligence it does not mean breach of duty. It means the failure by a person to use reasonable care for the safety of himself or his property so that he becomes the author of his own wrong.”

22. In paragraph 1182 at page 717, Lord Simon is quoted from 2(Nonce v. British Columbia Electric Ry.), (1951) A.C 601 at page 611:—

“When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to established such a defence is to prove that the injured party did not in his own interest take reasonable cars of himself and contributed, by this want of care to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff's claim, the principle involved is that; were a man is part author of his own injury, he cannot call on the other party to Compensate him in full.”

23. Going back to the question posed, the answer, if any, has to be extracted from the appellant's evidence, the appreciation work whereof has already been carried out. It is true that the propositions of negligence and contributory negligence in certain cases are interwoven and in some cases it can be brought out and established from the injured party's witnesses. In the case before us, there is no neat proof of the acts of appellant of which it can be comfortably established that he was guilty of contributory negligence. There is no question of conflict between what the appellant says and what the driver of the vehicle says. We have, therefore, to resort to inferential exercise, whose quality is in no way inferior to the direct evidence provided the inference can be reasonably or legitimately drawn. The inferences relied upon by the Tribunal were re-employed by Mr. Prem in supporting the finding of contributory negligence. From the facts proved by the appellant, we are unable to draw an inference that he was negligent himself or that the injuries suffered by him could be attributed to his own conduct. The inferences drawn by the Tribunal are not warranted and are in the nature of conjectures that the appellant was inattentive about a heavy vehicle coming from behind him or his losing balance on the approach of the vehicle or that he must have tried to run across the road because his brother was on the other side of the road, in fact, the appellant had brushed aside the suggestion that he had crossed the road. In examination-in-chief he did say that he ran forwards i.e towards the front in the direction in which he was facing, namely, north. We think that the driver of the motor lorry could, by the exercise of reasonable care diligence have avoided the accident. In our judgment the appellant is not guilty of contributory negligence.

24. For proof of the injuries, the appellant has stated that he was in the hospital for two months and was treated as an out door patient for about one and half years. At the time of the accident, he was studding in S.S.C and on account thereof he could not appear for the S.S.C, examination held in March 1974 and he had to take his examination in October 1974 which he passed in First Class. According to the medical evidence, as a result of the injury on his left leg, the appellant has suffered the permanent disability to the extent of 25%. Dr. Patel says:—

“There is a grafted area over the dorsum of the foot ankle and part of the leg. There are multiple ulcers seen over the grafting area. There is loss of soft tissue mass over the dorsum of foot and ankle. He has foot drop. Tendon of T.I.A is (contracture). There is cavus deformity of foot. There is increased flattening of lateral aspect of sole. Inability to extend great toe. There is loss of inversion.”

25. On account of the disability, the appellant cannot walk with a normal gait and because of the faulty mechanics he is likely to get at the age of 35 onwards arthritics of the joints above the knee and hip. He has also to wear a special type of shoes, by which he can walk in a little bettor but not in a normal manner. By wearing special shoes he is not likely to prevent future orthrities but it may be delayed by 5 to 10 years. He also requires treatment for ulcer. Or. Patel also testified that the curve of the sole of the appellant has increased leading to cevus deformity which is visible to naked eye on comparison with the curvature on the right foot. The flattening of lateral aspect of sole on the left foot has increased on account of the injury as compared to the right foot. These facts are even highlighted by the medical report relied upon on behalf of the respondents themselves. The respondents had also got the appellant examined from their own Doctor who has issued a medical report dated 14th January 1977 mentioned above, which shows that he could not extend his big toe nor could he move his ankle freely. He has difficulty in walking over uneven surface. He had 1/2 shortening of his left leg. The movements of his left ankle and subtaloid joints were restricted. There was loss of extension of his left big toe. He had ulcers over grafted area and limped while walking. He has equino-cavus deformity of his left foot Ultimately, the said report fixes his final permanent partial disability at 25%. The medical evidence speaks for itself about the condition of the left leg of the appellant and the permanent disability suffered by him.

26. This takes us to the question of compensation. We have just seen the nature of the injuries which has caused permanent disability to the extent of 25% on the left leg of the appellant. This permanent disability is bound to put several handicaps in the long life before the appellant. This is also bound to restrict his movements for the rest of life and thus increase hazards of life in a given situation. We have seen that the appellant was of the age of 16 years at the time of the accident and he was a school-going boy and had to lose one academic year of his career. He has shown to be a brilliant student and by now he has passed B.Com Examination. The aftereffects of the permanent disability are bound to depress him throughout his fife and leave a distate.

27. The Tribunal has fixed a compact sum of Rs. 14,000/- for “pain and suffering involved, the permanent disability of 25 percent the deformity etc.” by way of general damages.

28. The principles governing recoverability of damage in personal injuries cases, as established in various cases, are gathered together in paragraphs 1146 to 1158 of Halsbury's Laws of England, Volume 12, pages 446 to 454, 4th Edition. The general principles are 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. In addition the plaintiff is entitled to recover damages in respect of pecuniary loss, past and future, such as loss of earnings, medical expenses and cost of nursing care, and for loss of earning capacity where he is handicapped in the labour market. Damages are also recoverable for loss of expectation of life. In paragraph 1147, the pattern of non-pecuniary loss is set out. Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions.

29. We will first take up the matter of non-pecuniary loss of pain and suffering, past and future, and loss of amenity and enjoyment of life. Bearing in mind the various factors discussed above about the impact of the injuries on the appellant and the disability suffered by him, we think that a sum of Rs. 10,000/- would be a conservative figure in the case of the appellant before us. This is the least sum that the appellant should receive. In fixing this amount we have borne in mind three decisions: (1) 3(Ranjit Singh v. Meenaxibai), (1972) 13 Gujarat Law Reporter 662; (2) 4(Babu Mensa v. Ahemdabad Municipality), A.I.R 1978 Gujarat 134; and (3) 5(Bhaskarbhai Khendubhai Desoi v. Ramanlal Narhubhai Patel), A.I.R 1978 Gujarat 158.

30. Coming to the award of pecuniary loss of earning capacity, we have noticed that the appellant was a bright student and could look out for a brilliant career in the growing progress and prosperity of the business and trading community. His permanent handicaps are bound to come in his way in making a successful and profitable career. In our opinion, on a modest scale, the loss of earning should be estimated to be Rs. 125/- per month and thus the loss would be Rs. 1500/- per annum. It is reasonable to take the multiple of 15 per assessment of pecuniary loss. The appellant was in his twenties and therefore, the multiple of 15 is most modest. (See paragraph 1156 of Halsury's Laws of England, 4th Edition Vol. 12, page 453, for Computation of future pecuniary loss: the multiplier and other factors). Accordingly, the compensation works out at Rs. 22,500/- and we think that a sum of Rs. 20,000/- would be an adequate and fair compensation on the facts and circumstances of the present case.

31. The special damages have been assessed at Rs. 1324/- and this amount was not fairly challenged by Mr. Prem, in the context of damages to be awarded to the appellant.

32. Both sides have relied upon various decisions in support of their respective View points on the question of damages for assisting us in fixing the amount of compensation: (1) 6(M.P State Rood Trans. Corporation, Bairagarh, Bhopol v. Sudhakar), 1977 A.C.J 290; (2) 7(Manmohan Sarup Kaushal v. Mala Ram), 1977 A.C.J 140 at page 142; (3) 8(Virendra Kumar v. Gyani Ram), 1975 A.C.J 122; (4) 9(Madurai Insurance Co. Ltd. v. M. Balosubramaniam), 1971 A.C.J 472.

33. Thus, the appellant is entitled to the said sum of Rs. 10,000/- and Rs. 1324/-, making a total of Rs. 31,324/-. The Tribunal has awarded a sum of Rs. 7662/-. The amount of compensation, therefore, shall have to be enhanced by Rs. 23,662/- with interest on Rs. 31,324/- at the rate of 6 per cent per annum from the date of the application till payment.

34. In the result, the appeal is allowed. The award passed by the Motor Accidents Claims Tribunal is modified and the following order is passed:—

35. The respondents are directed to pay to the appellant in all a sum of Rs. 31,324/- with interest thereon at the rote of 6 per cent per annum from the date of the application till payment with costs throughout. It is stated before us that a sum of Rs. 7662/- has been deposited by the respondents in Court and the same hag been withdrawn by the appellant. Accordingly, the appellant shall give credit to the respondents for the said sum of Rs. 7662/-.

36. Cross-objections are dismissed with costs.