A. Harsha V. Rai, v. Dr. K.V Karna And Others,

Sadananda Swamy, J.:— One Harsha sustained injuries as a result of an accident caused by a motor car at about 10.35 p.m on 10-2-1965. He filed an application under S. 110-A of the Motor Vehicles Act claiming compensation of Rs. 50,000/-. The Motor Accidents Claims Tribunals, Bangalore, awarded Rs. 6,100/- as special damages and Rs. 10,000/- by way of general damages against the owner of the Car and lie Insurance Company. The applicant has come up in appeal M.F.A 56/170 contending that the amount of compensation awarded is inadequate. The owner of the Car and the Insurance Company have filed M.F.A No. 235/1970 challenging the order of the Tribunal and in the alternative contending that the amount awarded by the Tribunal is excessive.

2. The Tribunal held that the accident was the result of rash and negligent driving of the driver of the car that the applicant sustained injuries as a result of the accident and that the owner of the car and the Insurance Company are liable to pay the damages of Rs. 16,100/-. The points for determination in this appeal are: Firstly, whether the accident was the result of rash and negligent driving of the driver; Secondly, whether the owner of the car and consequently the Insurance Company are liable to pay damages for the injuries caused by the accident; and Thirdly, whether the amount of damages awarded by the Tribunal is inadequate or excessive.

3. P.Ws 3, 4 and 5 speak to the cause of the accident. Their evidence is briefly as follows: A car was coming from Kempegowda Circle towards Mysore Bank on the Kempegowda Road at about 10.30 p.m on 10-2-1965; when it came near the T.B Hospital it swerved to its right and climbed the foot-path on the side of the Hospital. The applicant was walking on the foot-path from Neo Mysore Cafe towards the Kempegowda Circle. The car after getting on to the foot-path dashed against the pedestrian and ran over his leg and thigh and then took a turn to the right towards Mysore Bank side and climbed down the footpath. It came to a halt after going about 15 ft. on the road. It did not halt but proceeded further without waiting. Their evidence is supported by the evidence of P.W 6, the Sub-Inspector of Police, who visited the scene of occurrence and prepared a mahazar and the sketch. He has staged in his evidence that the width of the road is 46 ft. and that the spot of the occurrence was on the foot-path. He has also said that from the statement of the owner of the Car and Mr. Kapoor (R.W 2), it turned out that one Balaji Rao was driving the car at the time of the accident and that a charge sheet was filed against the said Balaji Rao, who pleaded guilty and was convicted and fined in the criminal Court. The alleged driver Balaji Rao was not examined before the Tribunal to explain the circumstances in which the car went up the footpath and dashed against the pedestrian who was walking on the footpath on the right hand side of the road. The Tribunal was therefore justified in holding that the accident was entirely due to the rash and negligent driving of the car. The applicant stated in his evidence that he was admitted to the hospital on 10-2-1965 after the accident and that his right leg below the thigh was fractured. The Doctor who admitted him to the Victoria Hospital Dr. Krishna Murthy, has been examined as P.W 11. He has stated that the applicant was admitted to the Hospital on 10-2-1965 for fracture of the right Femur and that he was discharged on 19-9-1965. Under these circumstances the Tribunal was justified in holding that the applicant sustained the injuries as a direct consequence of the accident.

4. According to the owner of the Car, Dr. Karna, though the car belongs to him he is not liable to pay any compensation since at the time of the accident neither he nor his servant or agent was driving the car. According to his evidence on the night of the accident, he went to the house of his friend Kapoor in his car. He Kapoor and some others went in the car from Kapoor's house to the house of one Jacobi in whose house there was a party. The car at that time was driven by Kapoor. The car was parked inside the compound of Jacobi's house and the switch key was left in the car. While they were inside the house of Jacobi somebody had removed the car and had parked it outside the compound. He did not know that the car was involved in an accident on that night since there was no dent or damage visible on the car. It was only after the Police sent for him the next day and questioned him he came to know that there was an accident caused by his car the previous night. He has further stated in his evidence that on 14-2-1965 Kapoor rang him up and told him that it was Balaji Rao who took the car and caused the accident. Therefore Dr. Karna has stated that he is not liable to pay compensation.

5. The evidence of Kapoor is as follows: He drove the car to the house of Jacobi and left the car within the compound of Jacobi's house but forgot to take away the switch key. Earlier in the day he had instructed Balaji Rao to bring ‘Beedas’ from a shop in Balepet and he learnt on the 14th i.e 4 days later, that Balaji Rao had taken the car and caused the accident. He informed Dr. Karna accordingly. He had not instructed Balaji Rao to take that car. Moreover, Balaji Rao was not his driver at all according to him but was employed by his step-mother. Balajirao though impleaded remained ex parte.

6. The law as to the liability of the owner of a car in such circumstances has been stated in Hewitt v. Bonvin, (1940) 1 KB 188 by Du. Paroq. L.J as follows:

“It is plain that the appellant's ownership of the car cannot of itself impose any liability upon him. It has long been settled law that where the owner of a carriage or other chattel confides it to another person who is not his servant or agent, he is not responsible merely by reason of his ownership for any damage which it may do in that other's hands … … … … … … … … … … It is true that if a plaintiff proves that a vehicle was negligently driven and that the defendant was its owner, and the Court is left without further information it is legitimate to draw the inference that the negligent driver was either the owner himself, or some servant or agent of his.”

7. His Lordship further observed:—

“The driver of the car may not be the owner's servant, and the owner will be nevertheless liable for his negligent driving if it be proved that at the material time he had authority, express or implied, to drive on the owner's behalf. Such liability depends not on ownerships, but on the delegation of a task or duty.”

8. His Lordship added that the question of agency is always one of fact.

9. The law as to the liability of a master for the acts of his servant, has been stated as follows in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt , (AIR 1966 SC 1697):—

“The law is settled that a master is vicariously liable for the acts of his servant acting in the course of his employment. Unless the act is done in the course of employment, the servant's act does not make the employer liable. In other words, for the master's liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident. But it is equally well-settled that if the servant at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met.”

10. In that case the presumption was held to have been rebutted because the vehicle was proved to have been driven by an unauthorised person and on his own business. The law with regard to the liability of the principal for the acts of his agent has been stated in the same decision as follows:

“The law with regard to agents is the same. As was observed by Lord Atkinson in Samson v. Aitchison, (1912 AC 844) it is a matter of indifference whether a person be styled a servant or agent since it is the retention of control which makes the owner or the principal responsible. Just as the tort must be committed by a servant either under the actual control of his master or while acting in the course of employment, the act of the agent will only make the principal liable if it is done within the scope of his authority. By a process of ratiocination the Courts have made a slight distinction by attempting to find a “right of control” as the basis of the master's liability and have distinguished it from a ‘right to control’ in cases of simple agency to bring the two cases together. We find it simpler to state the law that an agent will make the principal responsible so long as the agent does the act within the scope of his authority or does so under the actual control of the principal. We do not subscribe to the extension of the doctrine that the act of the servant or the agent must be for the master's benefit. This extension was made by Willes, J. in Berwick v. English Joint Stock Bank, (1867 (2) Ex 259). The word ‘Benefit’ is vague and it is better to adhere to the words ‘course of employment’ or the ‘scope of authority.’”

11. There the following dictum of Lord Denning (then Lord Justice) was cited with approval:

“It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. This is not correct. The owner is also liable if the driver is with the owner's consent, driving the car on the owner's business or for the owner's purposes.”

“………The law puts an especial responsibility on the owner of a vehicle. Who allows it to go on the road in charge of someone else, no matter whether it is his servant, his friend or anyone else. If it is being used wholly or partly on the owner's business or for the owner's purpose, the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern.”

12. In (1970) 1 All ER 749, (Rambarran v. Gurrucharran) it has been held that although ownership of a motor vehicle (which at the time of an accident is being driven by another for his own purposes and without the knowledge of the owner) is prima facie, evidence that the driver was the agent or servant of the owner and that the owner is therefore liable for the negligence of the driver, that inference may be displaced by evidence that the driver had the general permission of the owner to use the vehicle for his own purposes, the question of service or agency on the part of the driver being ultimately a question of fact.

13. According to the decision of the Supreme Court referred to above (AIR 1966 SC 1697) there is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but that presumption can be rebutted by the owner of the vehicle. In the present case admittedly the car in question belongs to Dr. Karna, it is necessary to consider whether the presumption has been rebutted. Balaji Rao has not been examined. He would have been the best person to explain the circumstances under which he came to drive the car at the time of the accident. If it is true that Balaji Rao was driving the car at that time as alleged by Dr. Karna, there is no explanation forthcoming as to why Balaji Rao has not been examined. It is intended on behalf of the owner of the car by Mr. Sundaraswamy, that Balaji Rao was charge-sheeted and convicted by the Criminal Court for this very accident and that such evidence was enough to rebut the abovesaid presumption. As against this. Mr. Ranga Rao appearing for the appellant Harsha, contended that in all probability Dr. Karna was himself driving the car at the time of the accident and that Balaji Rao was made a scape-goat before the Criminal Court in order to avoid embarrassment to the owner of the car who would otherwise has been required to appear as an accused before the Criminal Court, and in the alternative, it was also probable that Dr. Karna himself asked Balaji Rao to go in his car to fetch beedas though that fact has been denied by him subsequently.

14. It is the case of the owner that Balaji Rao took his car on the night of the accident not only without his permission but also without his knowledge or consent end that he found the car parked outside the compound of Jacobi's house, when he came cut of the house after the party was over. But in his objection statement this is what he has pleaded:—

“This respondent was not at all driving the vehicle at the time of the accident. He was not even in the car. It was being driven by a licenced driver namely Sri. S.N Balaji Rao who was in the employment of Kapoor at Grant Road to whose house this respondent had gone to attend a party and the car was taken to fetch some things from Balepet.”

15. And he further stated that at the time of the accident the car was being driven by a person not in his employment and that therefore even if the driver was rash or negligent while driving no vicarious liability can be imposed upon him as there was no relationship of master and servant between him and the driver of the vehicle.

16. Thus it is clear that there is no specific plea in the objection statements of Dr. Karna that the driver took the car stealthily from the compound of Jacobi's house while the owner was inside the house attending the party and there is not even an allegation that a party was held in the house of Jacobi. On the other hand, what has been pleaded in that objection statement gives the impression that a party was held in the house of Mr. Kapoor at Grant Road and not in the house of Jacobi. Kapoor in his statement of objections has stated that he is not aware of the accident and that he is not in a position to state if the car was driven by Balajirao at all. Admittedly Kapoor is a friend of Dr. Karna. In view of the plea put forth by Dr. Karna the Tribunal came to the conclusion that the version put forth in the course of the evidence by Dr. Karna as to the circumstances under which Balaji Rao was driving the car at the time of the accident was improbable and unbelievable.

17. It is urged by Mr. Sundaraswamy that the Tribunal was not justified in attaching so much importance to the statement of Dr. Karna in his objection statement since Dr. Karna had already given his statement to the Police when lie was examined on 15-2-1965 to the effect that the car was taken without his knowledge from inside the compound of Jacobi's house by somebody and that he came to know the next day that the car had been taken by Balaji Rao. The averments in the objection statement of Dr. Karna show that he did not stick to the statement made by him to the Police earlier on 15-2-1965. It was open to him to put forth the same plea in his objection statement. But he has not chosen to do so. The Tribunal was, therefore, justified in considering the averments in the pleading of Dr. Karna as important in examining the truth or otherwise of the case set up by him in the course of his evidence.

18. P.Ws 3, 4 and 5 were the eye-witnesses to the accident. They have stated that the car was halted after going about 15 ft. from the spot of the accident, but it proceeded immediately without waiting and, therefore they were not able to see who the driver was. The applicant Harsha who was examined as P.W 13 in this case, was also not able to say who the driver of the car was. The accident took place on 10-2-65. The claim application was filed on 9-4-1965. On 26-3-1965 Harsha got issued a notice through his counsel to Dr. Karna demanding Rs. 50,000/- as damages. In that notice it is stated that Dr. Karna drove the car rashly and negligently and caused injury to him and that he drove away even without stopping the car. Dr. Karna gave a reply. Exhibit P-20 dated 1-4-1965. In that reply notice he merely stated that the matter was being investigated try the Insurance Company and the police and that the reply does not imply acceptance of any liability for the accident. No further reply was given by Dr. Karna to Hardha's notice. This circumstance also shows that Dr. Karna had not made up his mind as to what defence he had to take to meet the claim of Harsha who had been injured in the accident.

19. The evidence of Kapoor was full of contradictions. The Tribunal has observed that not only by the answers given by him in the course of his evidence but also by his demeanour he appeared to be an unreliable witness. He has stated in his examination-in-chief that he had no personal knowledge about the accident and that when he went to Jacobi's house along with Dr. Karna on the night of 10-2-1965. Balaji Rao was not there, that he never gave any instructions to him and that Balaji Rao was not his employee but he was employed by his step-mother. At one stage in his evidence he has stated that he did not remember if he had driven the car that night. He has also stated that he did not remember whether the key of the car was left in the car when the car was left there. But he stated later that he did not take the key inside. He has also stated that nothing was fetched that night from Balepet for the party and that he did not see Balaji Rao at all on that night.

20. Though he has stated in his examination-in-chief that Balaji Rao was not his driver he has admitted in his cross-examination that he has stated before the Police that Balaji Rao was the driver of his car from a long time. He has further stated that when he came to know that Balaji Rao was the driver of the car at the time of the accident, he did not call Balaji Rao and ask him how the accident happened and that Balaji Rao also did not tell him about the accident. But he has admitted having stated before the police that on an enquiry on 14-2-1965 Balaji Rao had disclosed to him that lie had token the car of Dr. Karna to bring beedas from a shop near Himalaya Talkies and that while returning he dashed against a person in front of Sagar Talkies Kapoor seems to have realised that he would be liable to pay compensation if it was admitted that the accident occurred when his driver used the car of Dr. Karna at his instance and for his purpose and therefore tried to wriggle out of the situation.

21. According to Kapoor he had asked Balaji Rao in the afternoon to bring beedas worth Re. 1/- to the party directly to Mr. Jacobi's house after the first show of cinema was over since Balaji Rao had told him that he would go to a cinema show. But when the statement made by him before the police was read out to him he denied that version and stated that he instructed the driver at 9 p.m after Dr. Karna came to his house to go over to Jacobi's house to attend to his personal work. He has also admitted that the driver had not brought the beedas to him. If that was so one would expect him to ask the driver why he had not brought the beedas.

22. It is in the evidence of Dr. Karna that he stood surety for Balaji Rao in the Criminal Court. He has also stated in his evidence that he produced Balaji Rao before the police officer voluntarily. If Balaji Rao had taken away the car without the knowledge of Dr. Karna and caused the accident putting Dr. Karna also in trouble, there is no reason why Dr. Karna should take the trouble of producing Balaji Rao before the Police and stand surety for him in the Criminal Court. The driver pleaded not guilty in the first instance and it was only at a later stage that he pleaded guilty and was sentenced to pay a fine. Under these circumstances the Tribunal rightly came to the conclusion that the fact that the driver was charge-sheeted and convicted on his own plea of guilty in the Criminal Court, does not necessarily lead to the conclusion that the version of Dr. Karna that the car was being driven by Balaji Rao without his knowledge at the time of the accident is true.

23. We have to see whether the other evidence adduced on behalf of the owner is sufficient to rebut the presumption that the car was driven by the owner or his agent. Dr. Karna in his examination-in-chief has stated that there were two or three cars in Kapoor's family and that they had drivers; that he did not know who was the driver in Kapoor's family till the 14th and that on the 14th he came to know that Balaji Rao, driver of Kapoor, had taken the car on the night of the accident. But in cross-examination he has stated that he knew the step-mother of Kapur; that Balaji Rao was a driver attached to her and to the best of his knowledge he was the employee of Kapoor but was working “under the family”. He has also stated that he knew Kapur's family well; that the cars in the family of Kapur are in the names of different members of his family and that different cars have different drivers. He has also admitted in cross-examination that he had seen Balaji Rao; that since 1963 he is the family doctor of Kapoor and also their friend.

24. He has stated in his cross-examination that Balaji Rao bad never taken his car at any time before. But in his statement before the police he has admitted that Balaji Rao used to take his car for the work of his master and to attend to the needs of his master. He has also stated in his evidence that whenever he Parked the car he would invariably take the switch key with him and that there was no hurry when the car was parked in Jacobi's compound. If that was so, it is difficult to understand why the switch key was left in the car itself when he and others got down from the car and went inside the house of Jacobi. He has stated in his evidence that he came to know that Balaji Rao had taken his car for some work of Kapoor; that Balaji Rao had not taken his permission to take the car, that he did not ask Balaji Rao to do any work of his on that day and that Kapur had not asked him to send his car that night for any purpose.

25. Though Kapoor has stated that Balaji Rao was not Kapoor's driver he has admitted that the driver was employed by his step-mother. He admitted having stated before the Police that he used to get beedas from near Himalaya Talkies through his driver Balaji Rao. He has also admitted having stated before the police that while he was going with Dr. Karna he instructed his driver Balaji Rao to go over to the house of Jacobi to attend to his personal work. Kapoor at one stage has stated that he did not remember whether the key of the car was left in the car but later he has stated that he left the switch key in the car. He has further stated that after the party, they found the car outside the compound and that it never struck him that Balaji Rao might have taken the car.

26. Though Balaji Rao was absent in spite of his asking him to come to Jacobi's house. Kapur did not ask him why he did not come there and why he did not bring the beedas even for a couple of days thereafter. He has also stated in his evidence that he did not ask Balaji Rao to use the car of Dr. Rama. It is in Kapoor's evidence that about 20 or 30 persons had attended the party that night and that some of them might be in Bangalore and that Jacobi was also in Bangalore. But none of the other persons who attended the party alleged to have taken place that night, have been examined.

27. As observed above, the fact that Balaji Rao had been charge-sheeted and had been convicted on his own plea of guilty is not sufficient to rebut the presumption that the car was driven by its owner or his agent. In the evidence referred to above, it is sought to be made out that Balaji Rao and not Dr. Karna was driving the car at the time of the accident. Even assuming that Balaji Rao was driving the car at the time of the accident, we have to see whether this evidence is sufficient to rebut the presumption that he was acting as the agent of the owner. The evidence of Dr. Karna is to the effect that he himself drives the car and that he does not engage a driver. Both Dr. Karna and Kapoor want to make out that Balaji Rao was the driver employed by Kapoor's stepmother though Kapoor has admitted having stated before the police that Balaji Rao is his driver. Since Balaji Rao was not the driver of Dr. Karna it is highly unlikely that he would take out the car of Dr. Karna without being asked to do so by Dr. Karna himself. Kapoor has stated positively in his evidence that he did not ask Balaji Rao to take the car of Dr. Karna on the night of the accident though it is the case of Kapoor that he had instructed Balaji Rao to fetch Beedas from a shop near Himalaya Talkies. Since Kapoor had not asked Balaji Rao to use the car of Dr. Karna. It is very unlikely that Balaji Rao would flake the car of Dr. Karna to bring beedas instructed by Kapoor without the permission of the owner.

28. Balaji Rao has not been examined in this case as stated earlier. He would have been the best person to explain the circumstances under which he took the car of Dr. Karna on that night. No explanation is forthcoming in the evidence of Dr. Karna or Kapoor as to why he has not been examined. The only inference that can be drawn, in the circumstances, therefore, is that Dr. Karna himself must have instructed Balaji Rao to bring the Beedas from a shop near Himalaya Talkies as desired by his friend Kapoor. Therefore as the driver took the car for the purpose of bringing beedas as desired by the owner, the car was being used for the purpose of the owner at the time of the accident and Balaji Rao was therefore the agent of the owner. The evidence adduced by the owner is not sufficient to rebut the presumption that at the time of the accident the car was being driven either by himself or his agent. The Tribunal was, therefore, right in coming to the conclusion that the owner of the car was liable to pay compensation to the person injured in the accident and that consequently the Insurance Company is also liable to pay the compensation.

18-19. The next question to be considered is whether the damages awarded by the Tribunal, are to be modified. It is urged by Mr. Sundaraswamy that an application had been made on behalf of the owner before the Tribunal for getting the applicant examined by an expert. Doctor S. Rajagopal of Madras; that the said application was rejected by the Tribunal and that the owner was thus deprived of an opportunity to show that the injuries caused by the accident were not so serious as claimed by the applicant. This application was filed on 10-2-1969. It was opposed by the applicant. The Tribunal dismissed the application. The reasons given by the Tribunal are: firstly that, the applicant had already been examined by three doctors, two of them from the Government Hospital and one independent doctor who is an F.R.C.S and secondly that nothing was suggested in the cross-examination of the Doctors that they were either interested in the applicant or that they were incompetent. The question whether the request made in the application Should be allowed or not was a matter within the discretion of the Tribunal. It cannot be said that the reasons given by the Tribunal for rejecting the application are insufficient or irrelevant. It cannot, therefore, be said that any injustice has been caused to the owner of the vehicle on that account.

29. P.W 11 is a Surgeon in the Victoria Hospital who treated the applicant. He has stated that the applicant was admitted to the hospital on 10-2-1965 for fracture of the right femur and was discharged on 19-9-1965; that he developed a complication of fat embolism that his condition became pretty serious and that he became unconscious for about 10 or 15 days from 13-2-1965; and that he was hovering between life and death for nearly a week.

30. P.W 8 is the Orthopaedic Surgeon of the Victoria Hospital who treated the applicant. He has stated that the right thigh bone was short by half an inch; that the applicant is unable to bend the right knee and the right hip completely.

31. P.W 12 is a Reader in Kasturba Medical Hospital end Hon. Surgeon in Wenlock Hospital Mangalore. His special subject is Orthopaedics. He has stated that there is a shortening of the light leg by about 3 centimeters that there was an ulterior bowing at the fracture and a limitation of flexion in the right knee and that there was a permanent disability; that there is a malunion and that it may produce pelvic and lumbar pains. The applicant has stated in his evidence that he cannot squat properly, that he gets plains in the hip and knee if he walks much or climbs 20 or 25 steps and that he cannot ride a cycle.

32. In the claim petition a sum of Rs. 50,000/- was claimed as the amount of compensation. The applicant filed an amendment application on 11-12-1968 claiming a further sum of Rs. 8,500/- by way of expenses incurred for his treatment and medicine etc. This application was allowed and the Tribunal awarded Rs. 6,100/- as special damages.

33. It is contended by Mr. Sundaraswamy that the said claim had become time barred on 11-12-1968, the date of the application, and that the Tribunal was in error in awarding the special damages. The damages claimed by way of amendment related to the expenses incurred by the applicant mostly subsequent to the date of the original application. The Limitation Act has no application to an application under Section 110-A of the Motor Vehicles Act and the period fixed for filing an application under that Section is subject to its being extended in suitable cases at the discretion of the Tribunal if sufficient cause is shown. The discretion of the Tribunal in allowing the application for amendment, cannot therefore be interfered with.

34. Mr. Sundara Swamy contended that the compensation of Rs. 10,000/- awarded by the Tribunal as general damages is excessive. Whereas Mr. Ranga Rao urged that it is inadequate. The applicant was 27 years old on the date of the accident. Even after his discharge from the hospital he had to use a caliper he could not bend the knee properly and could not squat properly. Even after 2 or 3 months thereafter his general condition with regard to movement of the right leg did not Improve much. There has been mal-union of the bone as a result of which his right leg has become shortened by half an inch. The Tribunal has relied on the decision in AIR 1963 Mys 161, (Bombay State Road Transport Corporation v. Naravan Pandurang Karnath). In that case the injured suffered compound fractures on his right palm and his right palm from his wrist Joint downwards had become permanently impaired. His right fore-arm and palm were disabled permanently and rendered useless for working. He was a young man of 36 years and was completely bed-ridden as an indoor patient for 54 days. A sum of Rs. 10,000/- awarded by the Trial Court in that case was confirmed by the High Court since it was not considered either unreasonable or improper, though the trial Court was considered to have, to some extent, erred on the side of generosity. The following observations of Brickett L.J in Bird v. Cocking and Sons Ltd., ((1951) 2 TLR 1260 at p. 1263) was cited with approval in that case:

“The assessment of damages in cases of personal injuries is perhaps one of the most difficult, tasks which a judge has to perform, and certainly the task is no lighter when the appellate Court is asked to reconsider the assessment made by a judge in the Court below. The task is so difficult because the elements which must be considered in forming the assessment in any given case vary so infinitely from other cases that there can be no fixed and unalterable standard for assessing the amounts for those particular elements.”

35. The Tribunal has also relied on the decisions in AIR 1937 Bom 155, (Leeladhar Chaturbhuj v. Harilal Jethabhai) and 1966 ACJ 207 (Punj) (Rajinder Kaur v. Puran Chand). In the former case a sum of Rs. 7,000/- was awarded as general damages to a boy of 13 years whose leg bone was fractured and suffered a permanent disability which caused limping. In the latter case a sum of Rupees 10,400/- was awarded as general damages to a girl of 7 years who suffered a fracture of ??? of the right leg which caused a permanent disability of limping.

36. Mr. Sundara Swamy relied on a number of decisions in support of his contention that the compensation awarded by the Tribunal is excessive. In AIR 1960 Mys 222, (Ganapathi Bhatta v. State of Madras (Now Mysore) the injured was a young man who was studying in the College. The accident took place in the year 1950. Besides lacerated wounds, the accident caused multiple fractures of the skull bone. He had been in the hospital for a period of 2-1/2 months. He lost the senses of touch and taste and became unable to read or write and partially paralytic. A sum of Rs. 6,000/- was awarded as general damages. It is contended that in the present case the injuries are less serious and therefore a lesser amount should have been awarded as compensation. It may be noted here that the accident in that case took place in the year 1950. In 1968 ACJ 63 : (AIR 1968 J & K 2). (Roshan Lal Bhalla v. Sudesh Kumar) the plaintiff suffered a fracture of his left, thigh femur which permanently disabled him. A sum of Rs. 5,000/- was awarded towards general damages. The accident took place in the year 1961.

37. In 1970 ACJ 189 : (AIR 1970 Madh Pra 172). (Vinod Kumar Shrivastava v. Ved Mitra Vohra) a student of 17 years of age suffered a compound fracture of the left leg which resulted in partial disability of the left ankle joint and the left lower limb which prevented him from taking part in heavy outdoor games and heavy physical exercises and also in the likelihood of pains in the ankle joint in middle age and later life. The damages of Rs. 5,000/- awarded by the Tribunal was confirmed. The accident took place in the year 1963.

38. In AIR 1970 Mys 13, (Government of India v. Jeevaraj Alva) the injured was a young boy who suffered fractures of the bones of the right forearm and left leg. As a result of the injuries there was a little difficulty in the movement, of the right hand and right elbow and in the working of the left leg. He could not act freely and had to be careful in using the fractured leg and arm while playing games. The accident took place in the year 1959. The principles which should be observed by an appellate Court in deciding whether it is justified in disturbing the finding of the Court of first instance as laid down by Viscount Simon in Wance v. British Columbia Electric Co. Ltd. (1951 AC 601 at 613) were cited with approval and they are as follows:—

“The principles which apply under this head are not in doubt Whether the assessment of damages be by a judge or a jury, the appellate Court is not justified in substituting a figure of its own for that awarded below amply because it would have awarded a different figure if it had tried the case at first instance. Even if the Tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some Irrelevant factor or leaving out of account some relevant one); or short of this that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

39. The basis of assessment of damages in actions for personal injuries as stated below in Winfield on Tort (7th Edition) at pages 779 to 781, 1167 and 1181 was also referred to with approval in that case:

“Unsatisfactory though it may be, all that can be said is that the damages awarded should be fair and reasonable compensation for the injury, bearing in mind all the relevant heads of damages and that so far as is possible, the sums awarded should bear a reasonable relationship to one another. The need for consistency is now fully recognised by the courts, and if judges can be persuaded to apportion the total sum awarded between the various heads of damages and to set out the factors which they take into account there is no reason why that consistency should not be achieved to a substantial extent. But it remains true that every case must ultimately be decided on its own facts and that the choice of the right order of figure is empirical and in practice results from a general consensus of opinion of damages awarding tribunals, juries, judges and appellate courts”.

40. Since the court below had relied on the correct principles governing the assessment of damages for personal injuries after referring to the previous judgments of different High Courts while assessing the damages at Rupees 25,000/- and as it was not considered as to be extravagantly high, the finding of the court below was confirmed.

41. Since the Tribunal has adopted the correct principles in assessing the damages and taking into consideration the fall in the value of the rupee in recent years, we do not think that the sum of Rs. 10,000/- is very excessive or too inadequate. We therefore confirm the finding of the Tribunal in this regard.

42. It is contended by Mr. Ranga Rao, on behalf of the applicant that the Tribunal has awarded only Rs. 6,100/- towards special damages out of the amount of Rs. 8,500/- claimed by the applicant, and that the Tribunal was in error in disallowing Rs. 2,400/-. The applicant has stated in his evidence that he had to spend nearly Rs. 2,000/- for medicine and appliances, that he had to pay Rs. 2,000/- towards ward charges while in the hospital and Rs. 1,000/- towards expenses for taking X-Ray photographs. The receipt vouchers produced by him covers only Rs. 2,027-50. The Tribunal has, therefore, awarded Rupees 2,027-50 on this account. The expenses Incurred by the applicant for engaging the services of an attender amounting to Rs. 690/- was also allowed. Another sum of Rs. 110/- being the cost of a Caliper, was also allowed. There was no other evidence adduced by the applicant to prove other amounts spent by way of miscellaneous expenses. On this account he claimed Rs. 2,000/- in his deposition. Since the Tribunal considered it reasonable to expect that the applicant had spent some amount on medicines and on miscellaneous account as conveyance etc. and since there was no cross-examination on that point the amount of Rs. 2,000/- claimed on this account was allowed by the Tribunal Taking into consideration the fact that the applicant had to incur some extra expenses on his food also a round sum of Rs. 5,000/- was awarded towards special damages.

43. It is contended by Mr. Ranga Rao, that the Tribunal should have awarded Rs. 1,000/- towards the cost of X-Ray photographs and allowed the claims towards expenses incurred by the applicant towards his food during his stay in the Hospital and the amount spent by the applicant for payment of tips to the hospital staff. The applicant has stated in his evidence that they used to take X-Ray photographs at the rate of 8 in a month and that he had to pay Rs. 161- for each film. He stayed in the hospital for 7 months, but no vouchers or cash bills were produced to show either the number of X-Ray films used or the value of the same. There is no other documentary evidence to support the claim of the applicant in this regard. The Tribunal was, therefore, justified in rejecting the claim under this head. The applicant claimed Rs. 2,000/- towards expenses for food when he was in the hospital. There is no evidence to show that he was required to pay for his food while he was in the hospital. In the absence of definite evidence, the Tribunal was justified in awarding a small sum towards the expenses incurred for food. There is similarly, no evidence with regard to the tips which the applicant claims to have paid to the Hospital staff. Hence no amount has been awarded in this respect also. The Tribunal was therefore justified in rejecting the claim of the applicant to the extent that it has done. It is urged by Mr. Ranga Rao that the Tribunal has not awarded compensation for loss of future income. There is no evidence to show that the earning capacity of the applicant who is a graduate and has obtained a Diploma in Labour Welfare, has been diminished due to the injuries caused by the accident. Hence the Tribunal was justified in confining the general damages to pain and suffering undergone by him as well as for the impairment of his health and his general capacity for work, as was done in AIR 1960 Mys 222. Hence no separate damages can be awarded for the decrease in future income.

44. The appellant is entitled to interest at the rate of 6 per cent per annum on the amount awarded by the Tribunal from the date of application to the date of payment. The order of the Tribunal is therefore modified to that extent. M.F.A No. 56 of 1970 is allowed in part and M.F.A No. 235 of 1970 is dismissed.

45. Parties will bear their own costs in both the appeals.

Order accordingly.