J. Eswara Prasad, J.:—
This appeal is by the Karnataka State Road Transport Corporation (‘KSRTC’ for short), questioning the award of compensation of Rs. 23,32,900/- with simple interest at the rate of 6 percent per annum from the date of petition till the date of payment in M.V.C No. 353 of 1983 to the first respondent.
2. A bus belonging to the Corporation bearing No. MYF 700 driven by the second respondent was involved in an accident at 6 p.m on 6-12-1982 near Shivaji Talkies traffic signal. The bus hit an Autorickshaw bearing No. KLC 992 and the Scooter bearing No. CAE 2956, driven by the first respondent. The passenger in the autorikshaw was thrown out and sustained injury. The first respondent and his wife who was riding on the pillion fell down. The first respondent sustained serious fractures with bleeding injuries and his wife sustained minor injuries and they were removed to the Victoria Hospital and were shifted to St. Philomina's Hospital on the next day, where the first respondent was an in-patient from 7-12-1982 to 10-3-1983. Thereafter he was removed to Karnataka Medical Centre for further treatment upto 30-3-1983. The first respondent was working as a Mechanical Engineer in Enstar Engineering Corporation, Houston, Texas in USA. He took further treatment at the Hospital in Houston.
3. The first respondent filed MVC No. 363/1983 claiming compensation of Rs. 31,55,904-04 p. and the passenger in the autorickshaw filed MVC 109/1983 claiming compensation. Both the petitions were filed together and tried together and were disposed of by a common judgment. It was found that the accident occurred on account of the rash and negligent driving of the bus by the second respondent and that the first respondent is entitled to compensation as mentioned earlier. Aggrieved by the Judgment in MVC No. 363/1983 the Corporation preferred this appeal, questioning their liability as well as the quantum of compensation awarded to the first respondent, who preferred cross-objections.
4. Sri. U.L Narayana Rao, learned Counsel for the appellant did not question the finding of the Tribunal regarding the rash and negligent driving of the second respondent-driver. He contended that the Tribunal was in error in awarding compensation for the treatment taken by the first respondent in USA and in not deducting the insurance coverage which was available to the first respondent. He submitted that the first respondent had a duty to mitigate the damages by getting treated in India, where equally efficient treatment is available. He further contended that the first respondent was not entitled to claim compensation based on medical bills which did not bear his name. He opposed the cross-objections as barred by limitation.
5. Sri. Balasubrahmaniam, learned Counsel for the first respondent on the other hand contended that the compensation awarded by the Tribunal is inadequate, having regard to the fact that first respondent underwent untold suffering and he is crippled for life as his right hand always remains in a dawed position like the paw of a ferocious tiger, that he cannot even greet people with folded hands and cannot walk without the aid of a stick on account of the fractures and the injuries to the hip has lost the lustre of youthful life, including sex life and also lost all the chances of participation in social activities, sports and swimming which were dear to him. He further contends that the first respondent being an immigrant, having residence and job in USA could not afford to stay back in India and lose his Green Card and the lucrative job in USA and that Dr. Richard Eppright from whom he received treatment is a world renowned surgeon and that there was no question of mitigating the damages under the said circumstances and that the said contention which was not raised in pleadings cannot be permitted now. He further contended that the interest awarded is too low and that the present value of the Rupee in comparison with the dollar should be taken into consideration in awarding compensation.
6. Arising out of the rival submissions of the Counsel, the following points require consideration:—
1. Whether the compensation awarded to the first respondent was proper?
2. Whether the first respondent could have mitigated the damages by taking treatment in India?
3. Whether the interest awarded was proper?
7. The first respondent examined his wife as P.W 1 and himself as P.W 2 Dr. G.V.S Kumar who treated him at St. Philomina's Hospital was examined as P.W 3. His father was examined as P.W 5. From their evidence and the discharge summary in Exhibits P. 162 to 167, the following facts emerge. The first respondent was aged 33 years with B.E and M.B.A qualifications, having residence in USA and is Green Card holder. He got employed in America in 1979. He was employed in Enstar Engineering Corporation at Houston as Project Estimator on a salary of $2500/- p.m He was married in June 1980 and his wife was also employed in U.S.A and getting a salary of $900 p.m He came to India along with his wife in November, 1982 to visit his parents at Bangalore. He sustained serious injuries and fractures to his right palm and to right leg and right thigh in the accident and became unconscious and was admitted in Victoria Hospital and later transferred to St. Philomina Hospital and he was in a State of coma for a period of six weeks and was totally bed ridden. He could not be operated upon because of cerebral contusion. After discharge from KMC Hospital, he went to USA as doctors told him that he could get better treatment and he had to retain his job status and immigration status and he has his house at Houston. He lost the air fare amounting $700/- on the return ticket because of the accident. His wife had to go back to USA and return to India in order to escort him to USA. He had to be taken in a stretcher and had to buy six seats in the plane. The Methodist Hospital where he was treated is number one in the world and Dr. Richard Eppright who treated him is known to be the best surgeon in the world. He underwent five operations along with physio-therapy and has to undergo another operation. He lost salary for thirty one months from 1-1-1983 to 1-8-1985.
8. It is therefore dear from the evidence that the first respondent is suffering from permanent disability on account of the number of fractures and on account of injury to the hip and some other impediments. He lost his physical pleasure in respect of sex. The net result is that he is a human being for all purposes except for the pleasures and amenities of life and he could not take part in sports and swimming which were dear to him.
9. Based on the evidence, the Tribunal awarded Rs. 21,32,900/- for medical expenses, conveyance, nutrition and nourishment. He was granted Rs. 2,00,000/- towards general damages. From a conspectus of the evidence and the circumstances, we do not find that the award of compensation by the Tribunal is excessive.
10. Objecting to the contention of Sri Narayana Rao relating to mitigation of damages, Sri Balasubramaniam argued that a new plea cannot be permitted to be taken at the appellate stage. The plea that every effort should be made for mitigation of damages is a legal plea which can be permitted to be raised at appellate stage also. The decision relied on by the learned Counsel for the first respondent in Ganapati Bhatta v. State of Madras . 1958 65 ACJ 45 Mys., Prabhat Sing v. Santilal . 1982 ACJ 345 Guj., Omprakash Sekhri v. Priatam Singh . 1984 ACJ 435 P & H., Kamlesh Kumar v. Prahlad—(12) . 1986 ACJ 112., United India Insurance Company Limited v. B.M Sukla . 1988 ACJ 1052 M.P., National Insurance Company v. Subhashkumari . 1990 ACJ 588 PH. and Chong Kok Hwa v. Taisho Marine & Fire Insurance Co. Ltd. . 1978 ACJ 37 Malasia., will not be of assistance, as they relate to raising of new plea based on facts, at the appellate stage. It was held that such pleas require adduction of evidence and cannot be permitted to be raised at the stage of appeal.
11. It is the contention of Sri. Narayana Rao that the first respondent could have stayed back in India and obtained treatment and thereby mitigated the damages instead of undergoing costly treatment in USA. In support of his contention he relies on Selvanayagam v. Univeristy of the West Indies.8 It was held by the Privy Council that a plaintiff who rejects a medical recommendation in favour of surgery must show that he acted reasonably, which is based on the principle that a plaintiff is under a duty to act reasonably so as to mitigate his damage. Though P.W 3 Dr. Kumar opined that cure was not impossible if the first respondent had treatment in his hospital, he stated that because of the cerebral contusion he could not conduct operation and therefore it was not possible to fully cure the patient even after the good treatment and therefore the operation was not conducted. The first respondent stated as P.W 2 that he had to go to USA, as better treatment was available and he had to retain the job status and Immigration status.
12. It is to be noted the first respondent is a Green Card holder having residence in USA and himself and his wife are also employed in USA. It is stated that he may lose lmmigration status as well as his job if he did not leave for USA as soon as he could. It is his further evidence that he was informed by the doctor that he would get better treatment in USA. In those circumstances, one cannot expect him to stay back in India and lose his Immigration status as well as the lucrative job and bright future prospectus, for the sake of mitigating the damages.
13. It was the next submission of Sri. Narayana Rao that the first respondent cannot saddle the appellant with the expenses he incurred in Dollars for treatment in USA relying on H. West and Son Limited v. Shephard.9 The House of Lords, basing on the facts of the case, held that the sums awarded were inordinately high and should be reduced. It was further held that damages were awarded not to punish the wrong doer but to compensate the person injured. In the case on hand, the award of the Tribunal is by no means inordinately high and does not require any reduction, nor it can be said that the award amounts to punishing the Corporation which is the wrong doer, but was only granted by way of compensation to the injured person. When the first respondent was charged by the Methodist Hospital in USA where he was treated for the injuries, the payment, naturally would be only in Dollars and cannot be expected to be made in Indian currency. The contention is therefore devoid of any merit.
14. The first respondent filed cross-objections claiming enhancement of compensation. It was opposed as time barred. Reliance is placed on Order 41 Rule 22 CPC under which it is laid down that cross-objection should be preferred within one month from the date of service of notice on the respondent or on the pleader. It was argued that the appeal was filed in the year 1988, where as the cross-objections were filed in the year 1992 with inordinate delay. In the present case, there was no service of notice of the appeal, either on the first respondent or his pleader. Provisions of limitation have to be strictly construed. The rule does not speak of limitation from the date of knowledge of the appeal, but lays down that cross-objections have to be filed within one month from the date of service of notice. The contention of Sri. Narayana Rao that “date of service of notice” should be construed as “date of knowledge of appeal” cannot be accepted. No liberal construction of provisions of limitation are permissible. No question of limitation will arise when there was no service of notice of the appeal as required by law. Rule 22 Order 41 CPC, would enable any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in respect of any issue ought to have been in his favour and may also take any cross-objection to the decree, which he could have taken by way of appeal. Though limitation of one month for filling cross-objections is prescribed under the proviso, it is always open to the respondent to state that the finding in the court below in respect of any issue ought to have been in his favour. Viewed from any angle, the cross-objections filed by the first respondent cannot be rejected as time barred.
15. It was contended for the appellant that no compensation for loss of salary and air fare of the first respondent's wife should have been granted. It is to be noted that she had to stay back on account of the serious injuries sustained by the husband due to the accident and incur loss of salary and had to later proceed to USA and return to India to escort her husband to USA. The Tribunal was justified in awarding compensation on this count.
16. The further contention of the appellant relates to the compensation awarded towards the charges for four operations performed in U.S.A as not supported by bills and the non-deduction for the treatment by Insurance coverage. Exhibits P. 164 to 167 establish the performance of four operations and physiotherapy. In view of the grave injuries suffered by the first respondent and the prolonged treatment received by him and the four operations which had to be performed on him, the award of compensation by the Tribunal on this account is not unjustified. As held by various High Courts in Bharat Premjibhai v. Municipal Corporation Ahmedabad . 1979 ACJ 264., Bakulesh v. Girdharilal . 1990 ACJ 383., Basavaraj v. Shekar* . 1987 ACJ 1022. and Mehta Goods Carrier (P) Ltd., Delhi v. Darshan Devi . 1964 ACJ 202., it is fairly settled law that even if there are no vouchers and the expenditure is reasonable, even if not strictly proved, the daim may not be discredited in view of the prolonged treatment. Mere mention of the insurance amount in the discharge summary of the Methodist Hospital, Houston did not mean that the treatment was covered by the insurance and was paid as such. P.W 2. categorically stated that the Insurance coverage was not available and was not paid as he was not working after the accident. Exhibits P. 210 and 211 justified award of compensation towards air-fare and travel expenses.
17. Sri Balasubramaniam argued that the present exchange rate of Dollars should be paid in Indian currency as there is a steep fall in exchange rate of the Rupee since the year 1988, when the accident occurred. He submits that the first respondent had to incur debts for making payment of medical bills which have to be repaid in terms of the present value of the Rupee. This contention cannot be accepted as there is no evidence to show that the first respondent incurred debts as alleged. Even if debts were incurred, the downward fluctuation of the Rupee may, to some extent, be offset by awarding payment of interest.
18. It was the further submission on behalf of the first respondent that the grant of interest at 6% is too low and needs to be enhanced suitably. Sri Narayana Rao on the other hand, relying on the decision of the Division Bench of this Court, contended that the award of damages does not amount to a debt and interest cannot be awarded at a rate higher than 6% p.a In National Insurance Company Limited v. Swaranlata Das . 1993 ACJ 748., the Supreme Court held that award of interest is in the discretion of the court. Various High Courts consistently granted interest at 12% p.a vide Chameli Wati v. Delhi Municipal Corporation . 1985 ACJ 645., Managing Director, Karnataka Power Corporation Ltd. v. Geetha* . ILR 1987 KAR 142., and General Manager, Kerala State Road Transport Corporation v. Susamma Thomas . 1994 ACJ 1.. We are therefore, with great respect, unable to agree with the decision in P. Rama Devi v. Saikrishna,18 and we therefore hold that the grant of interest is in Judicial discretion of the Courts, to be exercised in the facts and circumstances of each case and need not be restricted to 6% p.a
19. In the circumstances of case, we are of the view that interest should be awarded at 12% p.a
20. The Tribunal has taken all the relevant circumstances into consideration and on a proper appreciation of the evidence on record awarded proper compensation and we see no reason to interfere with the same except to the extent of interest awarded.
21. Before we part with the case, we would like to emphasize the need for public sector undertakings such as the appellant to be more cautious in the selection of drivers of heavy motor vehicles and see that they do not become a menace to the other users of the roads. In this regard, the attitude of the appellant in stating in their objections that the “accident would not have taken place if the petitioner had not come to India and more particularly to Bangalore” smacks of an irresponsible and callous attitude on the part of the Corporation. It was time and again emphasized by the Supreme Court in Rajasthan State Road Transport Corporation, Jaipur v. Narain Shanker . 1980 ACJ 411. and Concord of India Insurance Company Limited v. Nirmala Devi . 1980 ACJ 55., that it is not open to the Road Transport Corporation performing public duty to raise false plea and indulge in wasteful litigation by fighting tooth and nail in deserving cases and that they have obligation towards social justice.
22. The appeal filed by the Corporation therefore fails and is accordingly dismissed with costs. The cross-objections filed by the first respondent is partly allowed, awarding interest at 12% p.a from the date of the petition till the date of payment.