The Judgment of the Court was delivered by

Viswanatha Iyer, J.:— These two appeals are filed against the decision rendered by the District Judge, Trivandrum as Motor Accidents Claims Tribunal. M.F.A 46 is filed by the first respondent and the other is filed by the petitioner in O.P (M.V) 106 of 1977. For purpose of convenience the parties to these appeals will be referred to in the same manner as they are described in the petition filed before the lower court. The first respondent is the owner of a motor car KLT-8181. The petitioner while he was riding a motor cycle got injured in a collision with that car at about 7.40 p.m at a place called Manamboor in the National Highway between Quilon and Trivandrum. The petitioner alleged that the accident occurred on the eastern foot-path of the road due to rash and negligent driving of the car by the second respondent. A sum of Rs. 56,500/- was claimed as compensation. The first respondent, the owner and the second respondent, the driver denied that the accident took place at the eastern foot-path and alleged that it occurred in the public road. There was no rash or negligent driving on the part of the car driver, and the accident occurred because the petitioner does not know how to drive a motor cycle properly and had no licence to drive and the road was slippery because of rain. They also alleged that the petitioner was rash and negligent in driving the motor cycle. The compensation claimed was stated to be an exaggerated claim. The petitioner sustained only a minor injury and no permanent disability has been caused to him.

2. On these allegations and counter-allegations the Tribunal enquired into the Claim. The Tribunal found that the accident occurred on account of the rash and negligent driving on the part of the second respondent, the driver. The injuries sustained by the petitioner were found to be the result of the collision. It was found that the petitioner cannot flex his hip joint, cannot squat, cannot rotate his hip, cannot walk fast and cannot put weight on his left leg for long. There was profuse blood collection in his right testis for which an operation is necessary in future, there is an injury on the right ingeninal canal and right code and the hip injury caused partial avulsion of left proas major muscle and has 5% disability. The compensation for loss of earnings was assessed at Rs. 1,500/-, Rs. 200/- was awarded as compensation for expenses incurred for transportation to the hospital, Rs. 350/- was allowed for extra nourishment, Rs. 2,800/- was awarded as compensation for damage to his motor bike, Rs. 3,000/- was awarded for pain and suffering, another Rs. 2,000/- was awarded as compensation for permanent disability and Rs. 2,000/- was awarded as compensation for loss of future earnings. On the whole a sum of Rs. 11,850/- was decreed against respondents 1 and 2. They were made jointly and severally liable to pay the same with interest at 5% per annum from the date of petition till the date of payment. The petitioner is dissatisfied with the compensation awarded. Hence he has filed M.F.A 110 of 1979. The first respondent is aggrieved with the findings of the lower court and hence he has filed M.F.A 46 of 1979. The first question to be considered is whether the petitioner who sustained injuries in an accident is entitled to compensation even without proof that the accident occurred on account of the rash and negligent driving on the part of the second respondent. His counsel argues that under the provisions of the Motor Vehicles Act, if an injury has been caused to another by the use of a motor vehicle in a public place, that another person is entitled to compensation irrespective of the proof whether the person who was using the vehicle was negligent or not. Considering the difficulty for the injured to prove negligence one may desire that the law provides for an absolute liability in such cases. But that is not the present law. The Supreme Court had occasion to consider this question in Minu B. Mehta v. Balakrishna Ramachandra Nayan1 and in Bishan Devi v. Sirbaksh Singh . 1979 A.C.J 496 S.C.. In the former case at page para 31 the law is stated thus:

“A person is not liable unless he contravenes any of the duties imposed on him by common law or by the statute. In the case of a motor accident the owner is only liable for negligence and on proof of vicarious liability for the acts of his servant. The necessity to provide effective means for compensating the victims in motor accidents should not blind us in determining the state of law as it exists today.”

3. A liability can be cast on another only if he is in any way responsible for the accident which occasioned the injury. In other words there is no scope for any absolute liability on the owner of the vehicle to compensate the injured. The provisions of the Motor Vehicles Act do not contain any statutory provision to that effect. The Act does not provide a new right or a new remedy, to a person who is injured by an accident. The provisions of the Act do not in any way interfere with the substantive common law on the subject. It follows that the petitioner has to prove that opposite party used the vehicle in such a negligent way and occasioned the injury for which compensation is claimed.

4. In this case the place where the accident occurred is at Manamboor on Quilon-Trivandrum National Highway. At that place the road runs straight. The persons using the vehicles can see from a distance the vehicles coming from the opposite direction. The petitioner was going from north to south on a motorbike. The motor car driven by the second respondent was coming from south and proceeding towards north. It was about 7.40 p.m on 24.6.1977 when the accident took place. There is a controversy between the parties as regards the exact spot where the accident took place. According to petitioner the accident took place at the foot-path on the eastern side while the respondents' case is that the accident took place on the middle portion of the road itself. Except the interested testimony of the petitioner and the second respondent there is no independent evidence to find out the spot of accident. At the time the police constable visited the spot to prepare a mahazar the motor-bike was seen parked at the eastern edge of the foot-path. Ext. A-6 is the scene mahazar prepared by the Head Constable. Therein it is mentioned that both the car and the motor-bike are seen lying on the eastern foot-path. The car was lying facing northwards and the motor-bike facing southwards. The distance from the back right wheel of the car to the eastern end of the tarred portion of the road is noted as 137 cms. The distance between the end of the tarred portion of the road and the back wheel of the car is noted as 136 cms. The motor-bike was seen lying at the eastern end of the foot-path beyond li meters north-east of the place where car was seen lying. In the First Information Statement given by the petitioner he said that after he fell down from the motorbike the car stopped after running 15 feet. He also stated that he was proceeding from north to south keeping the left side of the road. When he saw the motor car coming at a high speed from the opposite direction he slowed down his motor-bike and moved to the left. But by that time the car came and collided with his motorbike. It was the side of the car that hit the bike had knocked him down. Ext. B-1 is the First Information Statement given by the petitioner. If as stated by the petitioner the car moved northwards by 15 feet after hitting the motor-bike the spot where the accident occurred cannot be the place where the motor-bike was seen by the Head Constable when he prepared the mahazar. The place of accident cannot be the foot-path, but can only be on the tarred portion of the road.

5. Then we have the testimony of the petitioner and that of the respondent. The petitioner swears that he was in his side of the road and the motor car coming from the opposite direction was not keeping the correct side. The evidence of the driver as R.W 1 is to the effect that he was proceeding, keeping to the correct side, but the petitioner was coming at a fast speed, not keeping his side, and as the bike collided with the car to save the life of the petitioner he swerved the car, to the right side and stopped after running a few feet. He said he had to do this to evade the petitioner being run over by the car. This according to him is the reason that the car was seen at the eastern foot-path of the road. But in his cross examination he stated thus:

“After the impact, the car stopped after moving a distance of three feet. I did not and could not move the car. It was in the same position when the police came.”

6. During the close of his cross-examination he further said:

“After the accident, people moved the motor cycle to the eastern foot-path to enable other vehicles to ply on the road. After the accident the car continued to be in the eastern foot-path. Cycle was moved through a distance of 3 feet.”

7. If we go by this evidence, it is clear the scene of occurrence is the eastern tarred portion of the road, that is, the motor-bike was keeping to the eastern side of the road at the time of the accident and the motor car hit the motor-bike and then moved three feet and stopped. Since the first respondent is positive that the car was in that position till the police came it can be safely inferred that the car was on its wrong side when it hit the motor-bike. As per the rules of the road the motor car had to keep to the left side of the road, and that is not seen observed in this particular place as it was on the western side of the road, and as a result the accident has taken place. It is clearly a case where the driver was negligent in driving the vehicle. It follows the respondent is liable for the injuries sustained by the petitioner.

8. The next question is regarding the measure of compensation. Though the plaintiff had claimed damages under several distinct heads they can be classified under two heads, pecuniary and non-pecuniary. Under pecuniary loss he has included loss of earnings, expenses incurred for transportation to the hospital and extra-nourishment, damages for the motor-bike, loss of future earnings. Under non-pecuniary loss comes compensation for pain, suffering, shock and loss of amenities. Each of those claims is disputed by the defendants. The first head of the claim is loss of income for the period from 24.6.1977 to 1.8.1977 which the plaintiff claims at Rs. 2,500/-. The Tribunal has awarded Rs. 1,500/-. This is objected to by both sides. Except the interested testimony of the petitioner there is no evidence to prove his salary. According to the petitioner he was employed in the J.R Hospital, Varkala on a salary of Rs. 1,500/- a month. He also stated that he was allowed private practice also from which he was making Rs. 500.a month. The plaintiff has not sought to prove these by the examination of the hospital authorities or by other evidence. The fact remains that he joined the hospital only in April, 1977. He also admits that he has not signed any receipt for the salary paid to him. He daily goes to Varkala from Trivandrum. That itself leads to the inference that he was not such a reputed doctor to be paid at this rate. So the lower Court was right in not accepting his case regarding the loss of earnings. The award of Rs. 1,500/- is also not justified because it will be a case where the award will be a pure guess work in a case where it is capable of proof. So for the failure of the plaintiff to prove the loss of earnings, Rs. 1,500/- awarded under this head has to be disallowed. Same is the case of the claim put forward by the petitioner under the heading extra nourishment. There is no proof regarding the amounts spent by the petitioner for extra nourishment. All those are capable of proof and award under these heads without evidence will be a purely guess work and the Court below was not right in awarding the same. So Rs. 350/- awarded under this head also has to be disallowed. The claim under item No. 4 is the amount claimed for repairs of the motor-bike. Rs. 3,000/- was claimed by the petitioner. The lower Court has awarded Rs. 2,800/-. This is based on the repair bill Ext. A-5 of Stanes & Co., Trivandrum. Though there is no evidence to show that this amount has been paid before the claim was made, this is an item which the petitioner has to pay and the lower Court was therefore justified in awarding Rs. 2,800/- and we sustain the same.

9. The next head under which compensation is claimed is loss of future earnings. The earning power of a doctor depends upon his practice. It is for him to prove how his earning power is reduced. No evidence is let in. The lower Court says that the permanent disability may have some effect on the future earnings. The claim made by him appears to be exaggerated. P.W 1 the doctor was not asked any question as to the alleged permanent disability. That being so we are not inclined to award any amount under this head.

10. Regarding the injuries sustained we have the evidence of P.W 1 the doctor and also the case sheet of the hospital which is marked Ext. A-2. He was an in-patient in the hospital from 24.6.1977 to 5.7.1977 Thereafter he was treated as an out-patient till 30.9.1977 At the time he was admitted he had great pain in moving both the thighs. He had also sustained injury in the testis. The right testis is very tender and enlarged in size. The petitioner's case that he was suffering severe pain on account of the injury is amply borne out. His claim of Rs. 5,000/- under this head has been reduced to Rs. 3,000/- by the lower Court. Calculation of the money value of the pain and suffering is a very difficult question. The authorities on this point are also not uniform.

11. Charlesworth on Negligence, Sixth Edition-Para 1424 treats pain and suffering as a head of damage and how it is to be assessed is stated thus:

“Obviously damages for pain and suffering are incapable of exact estimation and their assessment must necessarily be a matter of degree based on the facts of each case. They must be assessed on the basis of giving reasonable compensation for the actual and prospective suffering entailed, including that derived from the plaintiff's medical care, operations and treatment.”

12. Again in the same paragraph it is stated:

“It has been said that an attempt ought not to be made to give a perfect compensation. This, however, can only mean that the assessment of damages must not be based on an attempt to fix the price which the injured party would have accepted for undergoing the injuries he has received. It does not mean that a smaller sum must be awarded than is considered to be adequate compensation for the injuries sustained. The fact that the plaintiff is and will remain completely unconscious eliminates those heads of damage, which exist by being felt, thought or experienced irrespective of the serious nature of his injuries, but a plaintiff who realises his condition of being seriously injured must be awarded compensation for the mental suffering involved thereby on a comparable basis to actual physical pain.”

13. The same principle is followed by the various High Courts in India. All such cases have been grouped together in Ramesh Chandra v. Randhir Singh. But all these cases do not state the method of calculating damages. To a large extent it may be arbitrary and the court will be very discreet in fixing the figure under this head. Apart from actual physical pain, some physical injury causes distress, worry or anxiety. For example if the injury results in the loss of leg there may be much physical suffering and there may be, depending upon particular circumstances, elements of consequential worry and anxiety. These are all matters which the Court has to take into account. In that assessment an objective approach is not possible, though it is generally said that in fixing the compensation the objective element should be rated high. Considering the period that the petitioner was in the hospital, his mental and physical suffering and the nature of the injuries that he has sustained the sum awarded for pain and suffering seems to be inadequate. Instead of Rs. 3,000/- awarded the same is enhanced to Rs. 5,000/-.

14. The next head under which damage is claimed is for permanent disability. The respondent denies that any permanent disability has been caused to the petitioner on account of the injury. In support of this head of claim the petitioner on account of the injury. In support of this head of claim the petitioner relies on Ext. A1 certificate issued to him by P.W 1 the Assistant Professor, Orthopaedia-Surgery, Medical College, Trivandrum. According to the certificate there is a disability to the extent of 5% on account of the hip injury. This certificate is issued on 24.10.1977 It says that the petitioner has got limitation of external rotation of left hip joint by 10 degree with pain during terminal degrees of flexion of left hip joint. The percentage of disability is assessed at 5% which is permanent. The certificate further says that this limitation of movement of the joint interferes with the normal routine of his work and with exercise that involves external rotation of the hip joint. In his evidence he has said that this ailment cannot be fully cured. Though an attempt has been made in the cross-examination to discredit the witness the respondent has not succeeded in that. Hence it has to be taken as proved that the petitioner has suffered some physical incapacity. This disability is in the nature of a loss of amenities and enjoyment of life. It is a loss of a personal asset. It affects the enjoyment of life. So the hampering effect of the injuries in the carrying on of the normal social and personal routine of life with the probable effect on his health and spirit will have to be taken into account. The lower Court has awarded Rs. 2,000/- as compensation under this head. Hence we do not think that this is sufficient. Considering the percentage of disability and the age of the injured Rs. 5,000/- is awarded under this head.

15. It follows that the lower Court's decree requires modification. Instead a sum of Rs. 11,850/- awarded by the lower Court, the compensation is fixed at Rs. 13,000/-. Respondents 1 and 2 in the original petition are liable to pay this amount to the petitioner with interest at 6% from the date of the petition till payment. The appeals are disposed of in the above terms. In the circumstances we make no order as to costs in both the appeals. The appellant in MFA 46 of 1979, who is the respondent in MFA 110 of 1979, has prayed for leave to appeal before the Supreme Court. We are not satisfied that any substantive question of law which in our opinion calls for a decision of the Supreme Court arises for consideration.

16. Leave is refused.