1. These two appeals are instituted by the owner of the Lorry bearing No. MYA 5962 which caused the accident in question.
2. It is the case of the claimants in these two cases that on 29-6-1977 at about 3-15 p.m Sri Punnen (PW-3) the claimant in MVC 342/77 was coming driving his scooter bearing No. MEA 8073 along with his son Levi Luke on the pillion seat from north towards south by Sampige Road on his left side with moderate speed. He had crossed more than ¾th of the intersection of Sampige Road and Bhashyam Road, when the lorry bearing No. MYA 5965 coming from the opposite direction i.e from south towards north by Sampige Road at great speed, without sounding the horn and without giving any signal, in a rash and negligent manner came on the wrong side of the road and hit against the scooter. As a result, both the claimants viz. Sri Punen and his son Levi — claimant in MVC 341/77 fell down and sustained injuries. Sri Punnen applied for compensation u/s 110A of the Motor Vehicles Act in MVC 342/77 claiming compensation of Rs. 1,38,000/- from the respondents and his son filed MVC 341/77 claiming compensation of Rs. 1,00,000/- from the respondents. Respondent No. 1 is the owner of the Lorry. Respondent No. 2 is the driver and respondent No. 3 the Insurer of the lorry. They contested the claim. According to them, the accident was not on account of the rash and negligent driving of the lorry but on account of the scooter coming in speed and dashing against the lorry, and that the amount of compensation claimed in the two cases were exorbitant.
3. During hearing, the claimants examined 4 witnesses including themselves and as against that the respondents examined two witnesses though the driver of the lorry was not examined. The claimants also got marked Exs. P-1 to P. 33. The respondents got marked document Ex. R-1 — the insurance policy. The Tribunal appreciating the evidence on record held that the accident was due to the rash and negligent driving of the lorry and in that view the Tribunal awarded compensation of Rs. 30,000/- to the injured Levi and Rs. 50,000/- to Mr. Punnen. Aggrieved by the said common judgment and awards the owner of the lorry has come up in the above two appeals before this Court.
4. The learned Counsel appearing for the appellants vehemently contended that the compensation amounts awarded by the Tribunal in the two cases are exorbitant.
5. As against that, the learned Counsel appearing for the claimants-respondents in the two appeals, argued supporting the judgment and awards made by the Tribunal.
6. The sole point, therefore, that arises for our consideration in these two appeals is, whether the compensation awarded in the two cases is just and proper?
7. We will first take up for consideration the compensation awarded to the boy Levi Luke, aged 15 years at 30,000/-. Out of this amount, the Tribunal has awarded Rs. 27,500/- as general damages and Rs. 2,500/- for loss of one academic year by way of special damages. It is settled proposition of law that compensation has to be awarded in the case of a personal injury, for the injury itself, for pain and suffering, loss of amenities, for disabilities, if any, and loss of earning capacity. In the instant case the evidence shows that the boy suffered fracture of left tibia and fibula. He further suffered fracture of the upper portion of the nasal bone. The evidence of the Doctor makes it clear that the fracture of the bones in the left leg has resulted in disability, inasmuch as, flexion in the knee joint of the left leg is reduced by 10 to 15 degrees. The Doctor has further observed that the flexion towards last few degrees would be painful. As a result of this the boy is unable to squat, unable to run and unable to take part in the sports and probably for the rest of his life. The Doctor has given his opinion that the boy is likely to suffer osteo arthritis earlier. Compensation has to be awarded having these factors in mind. In addition, the fracture of the nasal bone has caused a slight dis-figurement of the nose leaving wound scar on the nose; that also has to be taken into consideration while awarding the compensation. Further, while awarding compensation for these injuries, it is the bounden duty of the Court to see that the compensation awarded is in accord with the general run of damages awarded in comparable cases.
8. The learned Counsel for the appellant, invited our attention to the case of M.P State Road Transport Corporation v. Sudhakar(1) wherein a victim who suffered compound fracture of right tibia and fibula in addition to fracture of ribs was awarded Rs. 20,000 towards general damages. It may be observed that in that case the victim was a lady who was educated and who belonged to a well to do family and her gait was permanently affected by the accident. He further invited our attention to the award made in the case of Vinodkumar Srivatsav v. Wed Mitra(2) wherein the High Court of Madhya Pradesh sitting at Jabbalpur awarded Rs. 5,000 to the injured who suffered compound fracture of tibia and fibula. He was a student aged 17 years. The leg was immobilised for 3 months. It appears that no disability was left over. That case does not bear full comparison with the facts of the present case. Moreover, the accident in that case took place in March, 1963 whereas, in the present case the accident has taken place on 29-6-1977. It is a matter well-known that the money value has depreciated from the year 1963 to 1977. He next relied upon an award passed in the case of Roshanlal Bhalia v. Sureshkumar(3) wherein the High Court of Jammu and Kashmir awarded compensation of Rs. 5,000 to a claimant who suffered fracture of the leg as a result of which there was restriction in the flexion of the knee joint to an extent of 10 degrees. The accident in the case was in the year 1961.
9. As against this, the learned Counsel for the claimants-responders, relied upon a more recent decision in the award made in the case of The New India Assurance Company Limited v. Shiv Kumar(4) wherein the High Court of Madhya Pradesh has awarded Rs. 20,000/- as damages to a boy who suffered fracture of tibia and fibula. He was a student studying in 11th Class. The accident happened on 25-3-1969. He also invited out attention to the award made in he case of Babu Mansa v. The Ahamabad Municipal Corporation(5) wherein the High Court of Gujarat awarded to a boy of 15 years who suffered fracture of the leg bones which resulted in the shortening of the leg Rs. 10,800/- for loss of future earnings, Rs. 1,200/- for pecuniary lass actually incurred and Rs. 15,000/- as general damages. Again he invited our attention to the decision of the Supreme Court in the case of M.P State Road Transport Corporation v. Sudhakar(6). In that case the Supreme Court of India confirmed award of Rs. 20,000/- made by the Tribunal to a boy of 4 years who suffered compound facture of right tibia and fibula lower, near ankle joint. Of course there was some skin grafting and there was greater degree of deformity and disability. Again, in the case of Mannohar Sarup v. Mela Ram(7) wherein the High Court of Delhi awarded Rs. 32,500/- to a girl of 6 years who suffered permanent disability in the leg. Having regard to awards made in these comparable cases and taking into consideration the special factors of the present case, we hold that Rs. 20,000/- would be the proper compensation towards general damages to the present boy who has suffered fracture of the tibia and fibula and has incurred permanent disability, inasmuch as flexion of his knee joint is restricted by 10 to 15 degrees. The scar in the nose is also borne in mind. In addition, the Tribunal has granted Rs. 2,500/- towards loss of one academic year. We confirm the same. Therefore the global damages awarded to the boy at Rs. 30,000/- is reduced to Rs. 22,500/-.
10. Adverting to the other case of Sri Punnen, it is in evidence that he suffered fracture of the left radius and ulna. The Doctor's evidence makes it dear that the flexion is restricted by 10 degrees at elbow joint. It is in evidence that he was a left hander. Damages are to be awarded for the injury and the consequential permanent disability caused in addition to pain and suffering and loss of amenities. The evidence discloses that the injured continued in his service in military and retired on 31-8-1978, that is, after an year of the accident. He was of about 54 years at the time of the accident. He has not suffered any loss of salary though it was vehemently argued before us that he lost chances of becoming an Honorary commissioned Officer in which case his salary would have increased by Rs. 500/- resulting in the benefit in the pension and gratuity. Adverting to the last aspect first, it may be pointed out that the claimant in his cross-examination has admitted that a number persons would be recommended for those posts and it was only a matter of chance to get it. No superior officer is examined in this behalf. It cannot be said that the claimant had every chance of getting it. There was only remote possibility. That being so, it would not be proper to work out the loss on that basis arithmetically. At the same time, since there was some chance of getting it, we deem it just and proper to award a lumpsum amount of Rs. 3,000/- under this head in the absence of better evidence. Adverting to the injury, pain and suffering and the disability left over, the learned Counsel appearing for the claimant invited our attention to the case reported in Marine and General Insurance Company Ltd. v. Dr. Balakrishna Ramachandra Nayan(8) That was a case of a surgeon who had locurative practice. He was 63 years of age. He was having a nursing home and consulting room and he was earning an amount of Rs. 20,400/- per year. He suffered fracture of the right elbow as a result of which he was unfit to carry out surgery. Having regard to the loss of earning the Tribunal awarded Rs. 1,38,479/-. It may be noticed here that the major portion of the compensation was for loss of earning. This cannot be a guide for awarding compensation. In the present case, there is no loss of earning as such.
11. As against that, learned Counsel for the appellant, invited our attention to the award made in the case of M. Bhootpathy v. Ms. Vijayalakshmi(9) wherein a hammer attendant in the combined department of Accountant General Office getting Rs. 70/- per month suffered fracture of the forearm. He was awarded compensation of Rs. 1,000/- which was confirmed by the High Court. In the case of The Unique Motor and General Insurance Company Ltd. v. The New India Assurance Company Ltd.,(10) wherein the High Court of Punjab awarded compensation of Rs. 6,600/- to a victim earning Rs. 155/- per month who suffered fracture of the fore arm in the right hand. In the case of Ganga Sugar Corporation Ltd. v. Sukhbeer Singh(11) the High Court of Allahabad awarded a compensation of Rs. 10,400/- to a person whose left arm was cut. In the case of M.R.V. Bus Service (P) Ltd. v. Ravi(12) the High Court of Madras awarded compensation of Rs. 15,000/- to a boy who suffered serious injuries on the right fore arm resulting in permanent disability. The Tribunal had awarded a compensation of Rs. 25,000/- which was reduced to Rs. 15,000/-.
12. Having regard to these cases and having regard to the fact that the accident in this case took place in the year 1977, and the victim is a left hander, who has slightly suffered earning capacity after pension, we are persuaded to hold that Rs. 20,000/- as general damages would be just and proper in the case of the present victim. To this has to be added Rs. 2,000/- awarded by the Tribunal for medical charges and repair charges to the scooter. We have already proposed to give Rs. 3,000/- above, for the loss of prospects. Together, therefore the global compensation to which the claimant is entitled would be Rs. 25,000/-. In the result, therefore, M.F.A No. 1447 of 1979 and M.F.A No. 1448 of 1979 are both partly allowed. In M.V.C No. 341 of 1977 (MFA No. 1448 of 1979) the award is reduced to Rs. 22,500/- from Rs. 30,000/-. The original respondent No. 3,—The United India Fire and General Insurance Company shall pay the same along with interest at 6% per annum from the date of petition till payment to the claimant along with his costs before the Tribunal. The award made in M.V.C No. 342 of 1977 (MFA No. 1447 of 1979) is reduced from Rs. 50,000/- to Rs. 25,000/- as detailed above. The Original Respondent No. 3. The United India Fire and General Insurance Company shall pay the same along with interest at 6% per annum from the date of petition till payment to the claimant along with his costs before the Tribunal.
13. No costs in these appeals.