(1) C. M. A. No,695 of 1991 is an appeal preferred by the depot manager, sathupalli depot and the general manager of the andhra pradesh state road transport corporation questioning the award of compensation of rs. 5,02,895. 00 with interest at 12 per cent in favour of the first respondent while c. M. A. No. 843 of 1991 is preferred by the new india assurance company limited in respect of the same award, disowning the composite negligence of the drivers.

(2) The facts are summarized briefly. On the fateful day i. E. , 28 - 4 - 1990 one ramisetti koteswar rao, first respondent in both the appeals, was travelling in a. P. State road transport corporation bus aez 4215 being driven by its driver, the second respondent, to go. To sathupally from khammam. When the bus reached hanumathanda near kallur, a lorry bearing no. Mcu 2167 was found parked facing towards kallur. The driver of the bus was driving at a high speed in a rash and negligent manner and as the bus reached the spot where the accident took place the bus was running on the extreme left side of the road while passing the lorry, mcu 2167. The driver of the lorry, third respondent, in a careless manner has suddenly started the lorry which was parked on the edge of the road and entered the main road, due to which act the lorry dashed on the left side back portion of the bus. Unfortunately the first respondent was resting his left hand on the window sill at that time and has hand was severed and fell in the bus. The first respondent attributing negligence on the part of both the drivers claimed in all compensation of rs. 7,00,000. 00.

(3) Before the tribunal, the first respondent was examined as p. W. 1 who is aged about 45 years at that time employed as an engineering supervisor in jaggaiahpct branch of the krishna district co - operative central bank limited and is getting a salary of rs. 4,500. 00 per month. He also examined p. Ws. 2 to 6 and marked exs. A. L to a. 52 p. W. 5 was also sitting in the same row in the bus in which p. W. 1 was sitting. He also supported p. W. 1 stating that due to the negligence of both the drivers, the accident occurred. The second respondent, driver of the bus, alone was examined - the driver of the lorry did not come into the box. Exs. A. 1 and a. 2 are the certified copies of fir in crime no. 16/90 and the charge sheet respectively filed against the driver of the rtc bus. Exs. A. 3 and a. 4 arc the certified copies of panchanamas. Taking into consideration of these documents, coupled with the oral evidence, the tribunal has rightly in our view come to the conclusion that the accident has occurred due to the rash and negligent driving of both the drivers.

(4) P. W. 2 is the civil assistant surgeon, orthopedic specialist, government headquarters hospital, khammam, who examined p. W. 1 for traumatic amputation of left upper limb and treated him, stated that the disability suffered by the injured was 75 per cent as operation was conducted and only 9 inches stump is left from the shoulder up to the acronym. P. W. 3 states that he has been employed as an attendant under p. W. 1 for the last four months on a salary of rs. 400. 00 per month. P. W. 4 a retired draughtsman of town planning department in khammam municipality stated that for preparing plans, a draughtsman needs both hands. On the basis of this evidence, the tribunal has awarded a sum of rs. 60,000. 00 under the head non - pecuniary damages i. E. , towards pain, suffering and loss of amenities of life arid loss of expectation of life; rs,25,000/ - towards medical expenses, treatment charges, extra nourishment and transport charges; rs. 5,000. 00towards attendant charges during the stay in hospital; rs. 4,700. 00 towards past losses i. E. , from the date of accident till the date of trial of the o. P. ; rs. 3,66,795. 00 towards loss of future earnings; and rs. 41,400. 00 by way of future attendant charges for the rest of the life of the injured.

(5) Although the tribunal has fixed the liability of both the bus and lorry drivers at the rate of 70 and 30 per cent, we are of the opinion that there is not much of difference in degree of their negligence. The bus driver is expected to take note of the lorry parked on the left side of the road facing the same direction in which his vehicle is moving. He has to anticipate that it may move forward at any time and come to the middle of the road that apart, there is clear evidence of both p. Ws. L and 5 that the driver of the bus right from the beginning was driving at a high speed and in a rash and negligent manner. Therefore, the finding that the driver of the bus was driving the bus in a rash and negligent manner which resulted in the accident is unassailable. The driver of the, lorry was also equally at fault. He too suddenly took off the lorry and brought it to the main road from the edge of the road where it was parked without taking the precaution of looking right to find out whether any vehicle is coming from behind. The evidence also clinchingly establishes that his contribution is no less than the driver of the bus. Therefore, we arc of the opinion that the apportionment of their liability should be equal and not 70 and 30 per cent. The principle res ipsa liquitur which means the things itself speaks if applied to the facts of the case, the question of negligence as an inference has to be drawn from the circumstances leading to the accident, the manner in which the accident has occurred and the part played by both the drivers. Viewed from any angle, the contributory negligence of both the drivers is of an equal extent.

(6) Smt. Vijayanihi, leaned counsel for the appellants submits that as p. W. 1 was resting his elbow on the sill of the window in spite of warnings that the passengers should not keep their hands outside. Therefore, he has also contributed to the negligence which ultimately resulted in the accident. We may straightaway say that there is no evidence that any such precaution was administered to the passengers. Even otherwise it is the duty of the drivers to leave sufficient margin while overtaking or crossing any vehicle keeping in view that it is not uncommon that passengers sometimes keep their hands on the window sill of the window in spite of warning that the passengers should not keep their hands outside, and so it cannot be said that he has also contributed to the negligence which ultimately resulted in the accident. As it is a very common phenomenon that passengers keep their hands in the window sill or even outside or travel on the foot boards; it is the responsibility of the driver alone to drive the vehicle safely taking all precautionary measures to carry the passengers to the destination safely. He has to avoid excessive speed, follow traffic rules, have a good look out and anticipate certain contingencies like cattle straying on the road, children crossing the road suddenly if it is a residential locality etc. , and the driver has to take reasonable precautions like an ordinary prudent man to ensure safety of the passengers. He cannot shirk his responsibility and escape award of damages. In a. P. S. R. T. C. V. Dodda somayajulu, 1983 a. C. J. 44 a division bench of this court observed that it is not uncommon that the passengers who travel by buses rest their elbows on the window frame of the bus and no negligence can he inferred on the part of the passengers on that account. Accordingly we hold that no neglience can be attributed to p. W. 1.

(7) The learned standing counsel next contended that the injured is still working as an engineering supervisor at jaggaiahpet branch of the krishna district co - operative central bank, drawing the same salary, and therefore, the tribunal is not justified in awarding rs. 3,66,795. 00 towards loss of future earnings.

(8) Normally compensation is determined on the basis of loss of dependency of the legal heirs of the deceased in case of death and loss of earnings of the injured on account of disability suffered by him due to the accident. Special damages consist of out of pocket expenses and loss of earnings from the date of accident to the date of trial. However general damages are compensation for pain and suffering and if the injuries suffered arc such which leave a permanent disability, they include compensation for loss of earning capacity. In this case, the injured suffered permanent disability, and therefore the question is what should be the damages payable to him. In other words, whether the percentage of disability would alone form the basis for arriving at the compensation, or whether actual loss of earning should be the basis for such calculation. It is admitted that the injured has suffered 75 per cent of disability. It is also admitted that he continues to work as before as engineering supervisor drawing the same salary. The learned counsel for the first respondent maintains that the loss of earning capacity should be the guiding factor but by a mere fortutious circumstance the injured happens. To continue in service cannot be put against him in disallowing the compensation which he would have otherwise legitimately entitled to. No doubt, pecuniary compensation is generally worked out on the basis of the loss of expected future earnings, but at the same time the relevant fact that the injured has been disabled to a large extent and his permanent disability is about 75 per cent is a factor which cannot be lost sight of. The first respondent had been a victim of traumatic accident in which his left fore arm was cut off, leaving a few inches stump from the shoulder. There is also the evidence of p. W. 4 who stated that for preparing plans a draughtsman might need to use both hands. With one hand off, the first respondent cannot perform his duties in the office with the normal speed, case and efficacy. He has to necessarily overstrain to execute his drawings etc. In time and his future career prospects have become bleak. Therefore, although the basis on which the tribunal determined the compensation taking solely the permanent disability at 75 per cent and worked out the loss of earning capacity on that basis, but still the fact remains that the first respondent has been still working in the same capacity earning the same salary as he was earning before the accident although he incurred 75 per cent disability which has a nexus to his earning capacity cannot be totally ignored before fixing the compensation.

(9) The tribunal has adopted the average salary of the first respondent at rs. 3,900. 00, applying the multiplier at 10. 45, fixed loss of earning at rs. 3,66,795. 00. Due to the unfortunate accident the physical frame of the first respondent has been battered and shattered which cannot be renewed by payment of compensation. He has to put up with the deformity for the rest of his life. It is undeniable that there would not be normal enthusiasm for the victim of such accidents to participate in social and other gatherings freely without any reservation. The shock of the life that unfolded to the first respondent at the ghastly accident can never be erased from his memory. The court has to necessarily got to keep these factors also in mind before assessing damages. But at the same time it cannot be overlooked that fixation of compensation cannot be dauntingly high or ridiculously low, nor niggerdly or windfall. In fact, the supreme court 'mm. Rs. Ri. Corpn. V. Sudhakar, air 1977 sc 1189 laid down reasonable prophecy for assessing compensation, thus:

"but in assessing damages certain other facts have to be taken note of which the high court overlooked, such as the uncertainties of life and the fact of accelerated payment - that the husband would be getting a lump sum payment which but for his wife's death would have been available to him in driblets over a number of years. 'allowance must be made for the uncertainties and the total figure scaled down accordingly. The deceased might not have been able to earn till the age of retirement for some reason or other, like illness or for having to spend more time to look after the family which arc expected to grow. Thus the amount assessed has to be reduced taking into account these imponderable factors. Some element of conjecture is inevitable in assessing damages. Lord pearce in mallett v. Memongle ( 1970) ac 166 (174) , calls it"

(10) Justice jagannadha rao, as he then was, in bhagawan das v. Mohd. Arif, 1987 (2) alt 349 regarding future earnings observed as follows :

"this has to be estimated on the basis of the earnings of earning capacity at the time of accident. If the rate varied, or the work was of a casual nature, the practice is to take an average over a reasonable period of one year. If large special fees or other windfalls have accrued in the past, as in philips v. London and south western railway co. , (1879) 5 cpo 280 the cabces if similar gains in the future may also be for the chances of increase or reduction in the rate of earnings. A professional man who is not earning much in his present appointment may have prospects of getting better - paid in the future. For example, a one third allowance was made for the chances that a teacher with a good academic record would pass a promotional examination, though he had failed previously and had only one more chance. (ratnasingam v. Kowaht dek) (1983 (2) wlr 1235). On the other hand, allowance may have to be made for chances of early retirement from profession due to other factors or possibility of a business man going bankrupt. In cases of casual employment, the chance that for sometime there may be absence of employment can be considered. If the claimant's earnings and future prospects of the firm arc relevant. The court can see whether, the claimant's absence has brought down or is likely to bring down the profits of the firm or company vaughan v. Greater glasgow p. T. Executive, 194 slt 44). Income tax must be deducted from future earning. British transport corporation v. G. Gurely, 1956 ac 185. Similarly the contribution towards insurance prcmia have also to be deducted. Cooper v. Firth brown ltd, (1963 (2) all er 31). -"

(11) Having regard to the circumstances, we arc of the opinion that there would be 50 per cent loss of earning capacity. Accordingly, we fix the disability at 50 per cent instead of 75 per cent. If the same multiplier is applied, the loss of future earnings would come to rs. 2,50,800. 00, and not rs. 3,66,795. 00 as fixed by the tribunal.

(12) The next contention raised by the learned standing counsel is that as the tribunal has already awarded loss of future earnings, the question of providing an attendant after the retirement does not arise. The fact that the first respondent requires an attendant for assisting him throughout his employment is not denied. What all disputed is that after the retirement, the first respondent does not require the assistance of an attendant. It is also in the evidence of p. W. 4 that the first respondent being technically qualified for being, employed as an engineering supervisor will have the potential for earning even after his retirement. In this view of the matter the need to have a future attendant for the rest of the life cannot be ignored. Thererfore in our view allowing rs. 41,400. 00 towards future attendant charges cannot be questioned.

(13) The award in respect of pain and suffering, medical expenses, attendant charges during the stay of the first respondent in the hospital, past loss of earnings is affirmed.

(14) The appeals are allowed to the extent indicated above. No. Costs.