JUDGMENT

1. These appeals are directed against the common judgment and award dated 31-12-2001 passed in M.V.C No. 1420 of 1994 on the file of the Motor Accident Claims Tribunal and Additional Judge (SCCH-20), Mayo Hall Unit, Bangalore (for short, ‘the MACT’) whereby it has awarded a sum of Rs. 15,36,460/- (Rupees fifteen lakhs thirty-six thousand four hundred and sixty) as compensation with costs and interest at 9% per annum from the date of petition till the date of realisation.

2. The Bangalore Metropolitan Transport Corporation which is the owner of the BTS bus bearing Registration No. MEF 778 involved in the accident, being aggrieved by the above judgment and award has filed M.F.A No. 359 of 2002 calling in question the validity of the award mainly on the ground that the quantum of compensation awarded by the MACT is highly excessive and has sought for reducing the same. The claimant in M.V.C No. 1420 of 1994 has also filed M.F.A No. 817 of 2002 questioning the correctness of the award passed by the MACT and sought for enhancement of compensation. The claimant has contended that the MACT has not awarded adequate and just compensation under various heads. The facts of the case, in brief, are as follows: that on 19-5-1994 at about 4.45 p.m, the claimant was riding his motorcycle bearing Registration No. CKQ 2806 slowly and cautiously near Shivaji Circle along with his friend Sri Syed Mukkaram as a pillion-rider. At that time, the driver of the BTS bus bearing No. MEF 778 drove the bus in a rash and negligent manner and dashed against the motor-cycle. On account of the impact, both rider and pillion-rider fell down and sustained grievous injuries. The claimant sustained fractures of both bones of the right leg and vertabrae and other injuries. After the accident, claimant was taken to Bowring Hospital for treatment and thereafter to St. Martha's Hospital. As per the advice of doctors at St. Martha's Hospital, the claimant had taken treatment at Apollo Hospital at Chennai. He had to go to Chennai on number of occasions to have treatment for injuries sustained by him in the accident. The claimant has spent Rs. 5,00,000/- towards medical expenses. The claimant was working, as on the date of accident, as Sales Officer in Avanti Kopp Electrical Limited and drawing a salary of Rs. 1,650/- per month and other allowances totalling to Rs. 3,350/-, in all Rs. 5,000/-. The claimant taking into consideration, the nature of injuries, pain and suffering, mental shock and agony, travelling expenses, medical expenses, loss of future income, has claimed a sum of Rs. 25,00,000/- as compensation and contended that the respondent being the owner of the motor vehicle involved in the accident having internal insurance, is liable to pay the compensation. In the meanwhile, Commercial Street Police have registered a case against the driver of the bus and he was convicted. The claimant is unmarried and on account of the disability and visible ugly scars, he has lost his marriage prospects. The claimant claims that he has no other source of income since 1994 till today.

3. The respondent on receipt of the notice on the claim petition appeared through their Counsel and filed written statement inter alia contending that the claim petition is not maintainable and liable to be dismissed. The age and income of the claimant and all other material allegations in the claim petition are denied by the respondent. The actionable negligence attributed to the driver of the bus was also denied. It was also contended by the respondent that the claimant did not have valid and effective driving licence to ride the motor-cycle and, therefore, accident was caused due to the carelessness of the claimant himself. On the basis of the above pleadings of the parties, the MACT framed the following issues:

“1. Whether the petitioner proves that he sustained injuries in the motor accident that occurred on 19-5-1994 at about 4.45 p.m near Shivaji Circle, Bangalore, while he was going on his motor-cycle No. CKQ 2806?

2. Whether the petitioner further proves that the above said accident occurred due to the rash and negligent driving of the driver of BTS bus No. MEF 778?

3. Whether the respondent proves that the above said accident occurred due to the carelessness of the petitioner himself?

4. Whether the petitioner is entitled for compensation? If so, to what amount?

5. What award or order?”

4. The claimant examined himself as P.W 1 and examined 4 other witnesses as P.Ws 2 to 5 and marked as many as 868 documents as Exs. P. 1 to P. 868 in support of his case. On behalf of the respondent, the driver of the bus bearing Registration No. MEF 778 was examined as R.W 1 and no document was produced. The MACT having taken into consideration the entire evidence on record answered issue Nos. 1 and 2 in the affirmative and issue No. 3 in the negative and awarded a total compensation of Rs. 15,36,000/- with interest at 9% per annum from the date of the claim petition till the date of realisation.

5. We have heard Sri S.P Shankar, learned Senior Counsel who appeared for Ms. K.R Renuka, learned Standing Counsel for the Corporation and Sri V.Y Kumar, learned Counsel for the claimant. At the time of final hearing of the appeals on 19-6-2003, Ms. H.R Renuka, learned Counsel for the Corporation filed an application under Order 41, Rule 27 of the CPC seeking permission of the Court to produce three documents, viz., (i) certified copy of the claim petition made in Complaint No. 116 of 1997; (ii) certified copy of the evidence of the claimant by way of affidavit; and (iii) certified copy of the cross-examination of the claimant in Complaint No. 116 of 1997 before the State Consumers Disputes Redressal Commission, Karnataka State, at Bangalore. Complaint No. 116 of 1997 was filed by the claimant before the Karnataka State Consumers Disputes Redressal Commission, Bangalore against the Administrator, St. Martha's Hospital, Bangalore, seeking action against the management of the said hospital for negligence of its doctor.

6. Sri V.Y Kumar, learned Counsel for the claimant also filed an application at the time of final hearing of the appeals on 26-6-2003 on behalf of the claimant under Order 41, Rule 27 of the CPC seeking permission to produce the certified copy of the order sheet in Complaint No. 116 of 1997 on the file of the Karnataka State Consumers Disputes Redressal Commission, at Bangalore.

7. Sri S.P Shankar, learned Senior Counsel fairly, according to us, quite rightly, has not disputed the actionable negligence attributed to the driver of the Corporation's bus. Even otherwise, we are satisfied that the accident was caused due to the rash and negligent driving of the BTS bus by its driver. We need not dilate on this aspect further because in M.V.C No. 1419 of 1994 on the file of the Court of the XXVI Additional City Civil Judge, CCH-20, the Court vide its order dated 9-7-1999 (Ex. P. 8) has held that due to rash and negligent driving of the bus by its driver accident occurred and that judgment was not challenged by the Corporation. However, Sri S.P Shankar would strenuously contend that the claimant himself was solely responsible for the aggravation of the injuries sustained by him in the accident and it was on account of his negligence and negligence on the part of the doctors of St. Martha's Hospital and also due to over-medication, the otherwise ordinary injuries were allowed to become complicated and grievous in nature. In that view of the matter, learned Senior Counsel would contend that the quantum of compensation awarded by the MACT is highly excessive and such a liability could not be fastened on the Corporation. In support of his contention Sri S.P Shankar would draw our attention to three additional documents produced by Corporation along with application under Order 41, Rule 27 of the CPC, dated 19-6-2003 and contend that as could be seen from those documents, the claimant himself has levelled negligence on the part of the doctors of the St. Martha's Hospital and in view of that admission of the claimant, he is not entitled to claim compensation of Rs. 24,70,000/- from the Corporation. Sri S.P Shankar would contend that even otherwise the claimant is not entitled to such compensation because it has come in the evidence that the fractures of femur and tibia are united. Sri S.P Shankar, in support of his submissions placed reliance on R.D Hattangadi v. Pest Control (India) Private Limited . AIR 1995 SC 755, Basavaraj v. Shekar . 1987 2 Kar. L.J Sh. N. 337 DB and Bhagawan Das v. Mohd. Arif . 1987 ACJ 1052 AP..

8. Sri V.Y Kumar, learned Counsel for the claimant, on the other hand, would strenuously contend that the compensation awarded by the Tribunal under various heads is totally inadequate and unjust. Highlighting that contention Sri V.Y Kumar would contend that the claimant was continually under treatment for a period of more than seven years, that is, right from 19-5-1994 till September 2001 and he is under treatment as on the date also. Sri V.Y Kumar would next contend that the claimant had to go to Chennai from Bangalore with one or two attendants for medical treatment at Apollo Hospital number of times and spent a sum of Rs. 2,50,000/- towards conveyance itself during the past more than seven years. Sri V.Y Kumar would further contend that the compensation awarded by the MACT towards ‘loss of future income’ is not adequate and it is not based on pragmatic and germane considerations governing computation of compensation.

9. Sri V.Y Kumar also contended that the officials of the Corporation are guilty and responsible for the delay caused to the claimant in realising the fruits of the award. Sri V.Y Kumar would point out that the officials of the Corporation have chosen to deposit the award amount in M.V.C No. 1419 of 1994 arising out of the same accident whereas without any justification they have chosen to prefer this appeal to drag on the proceedings and that except Rs. 5,00,000/- which is far less than the actual money spent by the claimant for treatment, no compensation awarded by the MACT under other heads is paid to the claimant thereby subjecting the claimant to untold misery and hardship. Sri V.Y Kumar would contend that it is a fit case where the Court should award exemplary costs and higher rate of interest.

10. Having heard the learned Counsels for the parties the only question that arises for our consideration and decision is whether the total compensation of Rs. 15,36,460/- awarded by the MACT under various heads is excessive as contended by the learned Counsel for the Corporation or inadequate and unjust as contended by the learned Counsel for the claimant.

11. Before dealing with the above question the argument of Sri S.P Shankar based on additional document sought to be produced can be dealt with. It is true that additional evidence can be tendered and accepted even in appeal. But, if acceptance of additional evidence tantamounts to a new trial of the case, such additional evidence normally cannot be allowed unless the Court finds that on account of the refusal, apparent injustice would be caused to the party making the application for production of additional documents. In Caroline Subramaniam v. Bihar State Road Transport Corporation . 1984 ACJ 648 Pat.., the claimant had failed to lead evidence to show that the deceased was knocked down by the bus in question. Consequently, the claim application was rejected by the Tribunal. In appeal there was a prayer for adducing additional evidence, i.e, FIR charge-sheet of the police against the driver and some witnesses. The prayer was disallowed and held that it would tantamount to a fresh trial. In New India Assurance Company Limited v. Sankar Behera . 1988 ACJ 337 Ori.., the appellant therein sought permission to admit a certificate given by the headmaster of a school so as to show the date of birth of the deceased. The Orissa High Court refused to admit the same by holding that would tantamount to weighing of evidence afresh. In this case, it needs to be noticed at the threshold that the claimant has withdrawn the Complaint No. 116 of 1997 filed by him before the Karnataka State Consumers Disputes Redressal Commission at Bangalore. Secondly, the documents sought to be produced cannot be a legal basis to record an adverse finding against the claimant without giving him an opportunity to explain his so-called admissions in those documents. Thirdly, if those documents are admitted as additional evidence, then, it becomes necessary to weigh those documents with other evidence available on record and this exercise on the part of the Court would tantamount to retrial of the case. Fourthly, a claimant for compensation under the Act is required to basically plead and prove two facts, viz., that death or injury was caused in an accident involving a motor vehicle(s) on account of rash and negligent driving of its driver and secondly, on account of that accident damage was sustained by him. The onus to prove the two facts is on the applicant who seeks compensation. Therefore, within the legitimate domain of the power and jurisdiction of the Motor Accident Claims Tribunal and the Appellate Court, what is required to be seen is whether these two basic facts are proved by the applicant by adducing substantive legal evidence. If the Court were to find that these facts are proved by adducing substantive legal evidence, it follows that the claimant will be entitled to compensation and his entitlement under the Act cannot be defeated on the basis of what he had pleaded before another forum if such pleading is found to be contrary to what is pleaded before the Claims Tribunal. In that view of the matter, and since the claimant has satisfactorily proved both the facts, it will be inappropriate, unjust and unwarranted to admit the applications filed by the Corporation under Order 41, Rule 27 of the CPC for adducing of additional evidence and that the merit of the claim has to be decided only on the basis of the evidence led before the MACT by the claimant as well as by the Corporation. In that view of the matter, we dismiss the applications of the Corporation and that of the claimant filed under Order 41, Rule 27 of the CPC.

12. This will take us to the main question. Before deciding the same, it will be beneficial for us to keep in mind the principles governing determination of a just compensation contemplated under the Motor Vehicles Act, 1988. It is trite, bodily injury is to be treated as a deprivation, which entitles a claimant to damages. The amount of damage varies according to gravity of the injury sustained by a claimant in an accident. Deprivation on account of injuries sustained in an accident may bring with it the consequences such as, (i) loss of earning and earning capacity, (ii) expenses to pay others for what otherwise he would do for himself, and (iii) loss of diminution in full pleasures of living. Though it is impossible to equate money with human suffering or personal deprivation, the Court has to make judicious attempt to award damages so far as money can compensate the loss. Such compensation is what is understood to be a just compensation. In that view of the matter, the Court while considering deprivation sustained by a claimant on account of the accident should have regard to the gravity as well as degree of deprivation. The Court should also have regard to the degree of awareness of the deprivation because the degree of awareness of deprivation would determine the degree of loss or diminution in full pleasures of living. It is well-settled that in awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely token damages. Further, it is intended to compensate both personal loss and economic loss. Under the head of personal loss, damages for pain and suffering, loss of amenities, personal inconvenience and discomfiture, social discomfiture, as the case may be, having regard to the facts of individual case, have to be included. The pecuniary loss would include damages in respect of financial loss, past and future, such as loss of earning, medical expenses and cost of nursing as also loss of earning capacity where the injured is handicapped in the labour market. In addition, the damages could be recovered for loss of expectation of life where the injury is such which might result in cutting off the normal expectation of life of the injured. Since in bodily injury cases compensation goes to the injured living person, the Courts have been liberal in relative terms in awarding compensation. One could clearly see from the judgments of the Supreme Court and High Courts that compensation awards are always higher than in cases of death. Redressal of deprivation in living person in terms of money to the extent possible seems to be the prime concern of the Courts. The said concern is in conformity with compassion and humanity, which together constitute accountability of the civilised society.

13. The following observations of Lord Morris in his quite often quoted memorable speech in H. West and Sons6, are quite apposite:

“Money may be awarded so that something tangible may be procured to replace of like nature which has been destroyed or lost. But the money cannot renew a physical frame that has been battered and shattered. All that the Judges and Courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparative injuries should be compensated by comparable awards”

14. Lord Denning while speaking for the Court of Appeal in England in the case of Ward v. James . 1965 1 All ER 563, laid down three basic principles. His Lordship observed:

“Firstly, assessability: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity. There should be some measure of uniformity in awards so that similar decisions may be given in similar community and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to Court, a thing very much to the public good”.

15. A Division Bench of this Court in Basavaraj's case, supra, held—

“if the original position cannot be restored - as indeed in personal injury or fatal accident cases it cannot obviously be - the law must endeavour to give a fair equivalent in money, so far as money can be an equivalent and so “make good” the damage”.

16. In R.D Hattangadi's case, supra, speaking about the heads of compensation, the Apex Court held thus:

“Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e, on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e, on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life”.

17. In Phillips v. South Western Railway Company . 1874 4 QBD 406. Field, J., while emphasizing that damages must be full and adequately held thus:

“You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. (The plaintiff) can never sue again for it. You have, therefore, now to give him compensation, once and for all. He has done no wrong; he has suffered a wrong at the hands of the defendants, and you must take care to give him full, fair compensation for that which he has suffered”.

18. Although, it is true that there are difficulties and uncertainties in assessing damages in personal injuries sustained by a person, that realism should not preclude an assessment as best as can, in the circumstances, be made. In the case of Mediana9, Lord Halsbury held:

“Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless, it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident….. But, nevertheless, the law recognises that as a topic upon which damages may be given”.

19. In Parry v. Cleaver . 1970 AC 1 at 22., Lord Morris of Borthy Gest held thus:

“To compensate in money for pain and for physical consequences is invariably difficult but … no other process can be devised than that of making a monetary assessment”.

20. It is well-settled that in a personal injury case, the injured has to be compensated under the heads (1) pain and suffering; (2) loss of amenities; (3) shortened expectation of life, if any; (4) loss of earnings or loss of earning capacity or in some cases for both; and (5) medical treatment and other special damages like transportation or travelling expenses, nutrition and food etc. While determining compensation under the above heads, the two main elements to be borne in mind are personal loss and pecuniary loss. Chief Justice Cockburn in Fair v. London and North Western Railway Company . 1869 21 LT 326., distinguished the above two aspects thus:

“In assessing (the compensation the jury should take into account two things, first, the pecuniary loss (the plaintiff) sustains by accident: secondly, the injury he sustains in his person, or his physical capacity of enjoying life. When they come to the consideration of the pecuniary loss they have to take into account not only his present loss, but his incapacity to earn a future improved income”.

21. McGregor on Damages (14th Edition), para 1157, referring to the heads of damages in personal injury actions states:

“The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items, viz., the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the Courts have sub-divided the non-pecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life”.

22. Besides, the Court is well-advised to remember that the measures of damages in all these cases “should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure”. The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrong-doer to “hold up his head among his neighbours and say with their approval that he has done the fair thing”, is quite apposite to be kept in mind by the Court in determining compensation in personal injury cases.

23. In Concord of India Insurance Company Limited v. Smt. Nirmala Devi . AIR 1979 SC 1666, the Apex Court held—

“The determination of the quantum must be liberal, not niggardly since the law values life and limb in free country in generous scales”.

24. In the premise of the above noticed well-settled principles/norms governing determination of damages in personal injury cases, let us proceed to examine and decide what shall be the ‘just’ compensation to be awarded to the claimant in the facts and circumstances of the case.

25. Among the witnesses examined on behalf of the claimants, P.Ws 2, 4 and 5 are the doctors. These witnesses in the course of the evidence, have stated that the claimant has sustained multiple injuries including extensive lacerated injury over the right thigh and other injuries resulting in permanent disability to the extent of 65% to 70%. P.W 2-Dr. N. Ramesh, is the doctor from Bowring Hospital, whereas P.W 5-Dr. Jayachandra Nayar is from the Apollo Hospital, Chennai. P.W 5 in his evidence has stated that the claimant has underwent several surgeries at Apollo Hospital, Chennai. P.W 5 has also stated that the claimant needs to undergo few more surgeries for fused knee and ankle which would cost him a sum of Rs. 1,50,000/-. P.W 5 has also stated that the claimant needs to undergo plastic surgery for removal of scars and for rectifying the wastage of muscles over the thigh and the said surgery would cost about Rs. 2,00,000/-. Thus, P.W 5 in his evidence has specifically stated that the claimant needs a sum of Rs. 3.5 lakhs for the aforementioned two surgeries. Speaking about the permanent disability, P.W 5 has stated that the claimant cannot work as salesman anymore; he cannot walk without the help of crutches; he cannot climb the staircase without the help of another person; the type of disability suffered by the claimant is almost equal to amputation of the leg above the knee. There is nothing in evidence to discredit the veracity or integrity of the evidence of the doctors. Furthermore, at the time of hearing, on 3-7-2003, the claimant appeared before the Court and at the request of Sri V.Y Kumar, we saw the right leg of the claimant. We could see wastage of muscles over the right thigh with highly ugly scars. The right thigh is beyond recognition of a normal thigh. The affected part looks like tom bulbs of flesh and muscles hanging from the bone, with highly ugly and awkward scars. We also noticed fusing of the knee and ankle, shortening of the limb and abnormal growth of muscles over the thigh region sacrificing beauty of otherwise a quite handsome man. The claimant appeared before us on all the dates of hearing using walker.

(emphasis supplied)

26. Having regard to the evidence on record, we are of the considered opinion that the compensation awarded by the MACT towards fracture of both bones of right leg, compound segmental fracture of shaft of right femur, and under the head ‘loss of future income’ cannot be regarded as a ‘just’ compensation. Similarly, we are of the considered opinion that sum of Rs. 15,000/- awarded by the MACT towards extra nourishment and residuary expenses, having regard to the length and magnitude of treatment, is totally inadequate. Further, the MACT is unjustified in not awarding any compensation towards transport and travelling charges.

27. It is satisfactorily established that the claimant has sustained grievous injuries resulting in several lifelong complications and disfiguration of the body with which he has to live for the rest of his life. On account of the injuries sustained by the claimant in the accident, he was constrained to take treatment in Bowring Hospital, St. Martha's Hospital in Bangalore and Apollo Hospital at Chennai as an in-patient for a total period of more than 22 months 19 days and he had to undergo more than 30 surgeries. It is also satisfactorily established by the evidence that the claimant further needs to undergo two more surgeries costing him at least sum of Rs. 3,50,000/-. It needs to be noticed that on account of fracture of both the bones of right leg, many complications cropped up as a consequence of which the claimant was reduced to the present pathetic condition. In that view of the matter, we are of the considered opinion that the compensation awarded by the MACT towards fracture of both the bones of the right leg and compound segmental fracture of shaft of right femur is required to be enhanced and accordingly, we enhance the compensation under the said heads to Rs. 1,50,000/- and Rs. 60,000/- respectively.

28. The MACT has awarded a sum of Rs. 3,72,060/- towards ‘loss of future income’. The Tribunal for the purpose of computing future loss of income, has taken the monthly income of claimant at Rs. 2,650/-. We do not think the MACT was justified in doing so. It is true that as per the Salary Certificate, Ex. P. 19, the claimant was working in the establishment of Avanthi Kopp and he was getting a basic salary of Rs. 1,650/- and local conveyance of Rs. 1,000/- totalling Rs. 2,650/-. However, P.W 3 who is the Area Manager of Avanthi Kopp Electrical Limited, in his evidence has stated that the claimant was young, energetic and active officer; he earned promotion as Sales Officer in the year 1994 and when the accident took place, the claimant was due for promotion and about to be appointed as Area Manager, but he was not promoted because of the accident, and if he were to continue in service, he would have been promoted as Area Manager and would have been getting a salary of Rs. 9,500/- to Rs. 10,000/- p.m Having noticed the evidence of P.W 3, it is unfortunate, the MACT has not taken into account the future prospects of the claimant in the service in which he was working as Sales Officer on the date of the accident. Moreover, the claimant is a diploma holder. It is totally unreasonable to assume that he would have ended his service career only as Sales Officer with salary of Rs. 2,650/- and would not have scaled up in the administrative echelon of Avanthi Kopp Electrical Limited or any other industry or enterprise. In the case of C.K Subramania Iyer v. T. Kunhikuttan Nair . AIR 1970 SC 376 the Supreme Court and in the case of Uttar Pradesh State Road Transport Corporation, Allahabad v. Kum. Deepti . AIR 1985 All. 197., the Allahabad High Court, held that compensation may be allowed on the basis of prospective capacity to earn by the deceased. The same principle applies in case of personal injuries also. In that view of the matter and taking into account the educational background, experience gained by him and prospective capacity to earn more income, we think it is just and reasonable to take monthly income of the claimant at least at the rate of Rs. 6,000/- per month for the purpose of computation of ‘future loss of income’ and if it is so taken, the yearly income would be Rs. 72,000/- and the appropriate multiplier to be applied, keeping the age of the claimant, is 15 and not 18 as held by the MACT. If 15 multiplier is applied, the loss of future income would be Rs. 10,80,000/-. P.W 5 in his evidence has assessed the disability of the whole body at 65 to 70%. We are inclined to take the percentage of the disability to the whole body at 70% because of the extensive and crucifying pain and suffering undergone by the claimant and the resultant disability which cost him not only job but also reduced him to a condition which prevents him from carrying on any employment. If the disablement of the whole body is taken at 70%, the actual entitlement of the claimant towards ‘future loss of income’ will be Rs. 7,56,000/- (70% of Rs. 10,80,000/- is Rs. 7,56,000/-).

29. Rs. 15,000/- awarded by the MACT towards extra nourishment and miscellaneous expenses is very meagre. Having regard to the nature and length of the treatment in Bangalore and Chennai in three hospitals and particularly having regard to the length of stay in hospitals as in-patient, we think a sum of Rs. 50,000/- would be the just compensation under the said head. Accordingly, we award a sum of Rs. 50,000/-.

30. We are at a loss to understand why the MACT has not awarded any compensation to the claimant towards transportation and travelling charges. P.W 1-claimant in his evidence recorded on 16-7-1997 has deposed that he visited the Apollo Hospital 5-6 times for follow-up treatment and he spent a sum of Rs. 40,000/- towards conveyance. This assertion made by P.W 1 is not at all contested by the Corporation in his cross-examination. It is also the case of the claimant that even after 16-7-1997, he had to visit Apollo Hospital, Chennai for follow-up treatment and consultation number of times and thus, he has totally spent not less than Rs. 2,00,000/- towards conveyance itself. Although according to the learned Counsel for the claimant, the claimant is entitled to a sum of Rs. 2,00,000/- towards conveyance charges to go and return from Chennai, having taken into account the number of journeys undertaken by the claimant to Chennai, we think, the ends of justice would be met by awarding compensation of Rs. 1,00,000/- towards conveyance charges. In conclusion, we award a sum of Rs. 1,50,000/- for fracture of both the bones of right leg; a sum of Rs. 60,000/- for compound segmental fracture of shaft of right femur; Rs. 50,000/- towards extra nourishment and food; Rs. 1,00,000/- towards travelling expenses; Rs. 7,56,000/- under the head ‘loss of future income’. We, however, do not find any justification to enhance or decrease the compensation awarded by the MACT under the remaining heads.

31. Although the accident occurred as far back as on 19-5-1994 and the claimant sustained grievous injuries and had to undergo number of surgeries, the Corporation except paying Rs. 5,00,000/- which covered only a part of actual expenses incurred by the claimant towards medical treatment, did not pay even a part of compensation under the other heads even after 9 years of the accident. Therefore, we think that the justice will be done to the claimant by appropriately enhancing the rate of interest.

32. In the result and for the foregoing reasons, we allow M.F.A No. 817 of 2002 in part with costs and dismiss M.F.A No. 359 of 2002 filed by the Corporation with costs and in modification of the impugned award passed by the MACT, we award total compensation of Rs. 21,60,460/- (Rupees Twenty-one lakh sixty thousand four hundred and sixty only) with interest at 12% p.a from the date of the claim petition till the date of its realisation. The Advocate fee is fixed at Rs. 1,500/- in each appeal. Out of the compensation awarded, Rs. 10,00,000/- (Rupees Ten lakhs) should be deposited in a term deposit in Vysya Bank Limited, High Court Extension Counter, Bangalore for a period of 5 years. The Corporation is directed to deposit the compensation money after deducting the payment already made within six weeks before the MACT and on such deposit being made, the claimant is entitled to withdraw the same minus Rs. 10,00,000/- to be deposited in the Bank as directed above.