1. This appeal is instituted under S. 110-D of the Motor Vehicles Act, 1939, by original respondent No. 1, the General Manager, Karnataka State Road Transport Corporation, Bangalore, and is directed against the judgment and award dated 30-1-1976 passed in Mis. (M. V. C.) No. 54/72 by the Motor Accidents Claims Tribunal, Dharwar.
2. The original petitioner-Kwaja Hussain Shaiksab Bellary-has filed cross objections raising the plea that the Tribunal was not justified in deducting Rs. 7,000/-, he received as ex gratia payment from Esso Company and has further submitted that the loss of future income calculated by the Tribunal is unreasonably low.
3. The facts leading up to the present appeal and cross objections are these:--
Kwaja Hussain Shaiksab Bellary instituted an application for compensation under S. 110-A of the Motor Vehicles Act, 1939, for the personal injuries sustained by him as a result of the motor accident that occurred on 25-3-1972 on Gadag-Hubli Road, 5 miles away from Hubli. According to him, he was driving the tanker belonging to the Esso Company from Gadag towards Hubli when the driver of a K.S.R.T.C. bus coming from Hubli in a rash and negligent manner came on the off side of the road and dashed against his tanker causing him grievous injuries. He has averred in the petition that he suffered fracture of the chest bone, fracture of the right shoulder, fracture of skull, fracture of right forearm and injury to the left eye. On these averments he has claimed Rs. 25,000/- from respondents as compensation. The respondent No. 1 was the General Manager, K.S.R.T.C. and respondent No. 2 was the driver of the K.S.R.T.C. bus in question. Respondent No. 1 resisted the claim by filing statement of objection on 25-11-1972. He denied that the concerned K.S.R.T.C. bus was driven by respondent No. 2 in a rash and negligent manner. He denied that the accident was the result of eash and negligent driving of the K.S.R.T.C bus driver. He alternatively affirmed that the earning mentioned by the petitioner was not correct and that the compensation claimed by his was excessive and exaggerated. Respondent No. 2 was subsequently given up as unnecessary party. On these pleadings, the Tribunal raised the following issues:-
(1) Does the petitioner prove that he sustained injuries as a result of the accident that happened on 25-3-1972 on Gadag Hubli road, 5 miles away from Hubli ?
(2) Does he further prove that the said accident was due to the rash and negligent driving of the K.S.R.T.C. bus bearing No. 5057 as alleged ?
(3) Whether the respondent proves that the petitioner is guilty of contributory negligence in causing the accident in question ?
(4) To what compensation if any and from who is petitioner entitled ?
(5) Does respondent prove that he is not liable to pay the compensation for the reasons in para 4 of the statement of his objection ?
(6) Does the respondent further prove that the application is not tenable for the reasons state in para 12 of his statement of objections ?
(7) What award ?
4. During hearing, the petitioner examined four witnesses including himself. P.W. 1 is the petitioner. P.W. 3 Abinajar Bansod is an eye-witness. He was travelling in the Esso tanker. P.W. 2 Gosavi Vaman Dattatraya is the Deputy Superintendent of the Esso Company who has spoken to the salary of the petitioner. P.W. 4 Srinivasa Bidi is the Assistant Surgeon attached to the K. M. C. Hospital, Hubli, who examined the injured. He has issued the injury certificate Ex. P. 2. Against that respondent No. 1 examined two witnesses on his behalf. D.W. 1 Abdul Rahaman Hebballi is a motor mechanic who claims to be the eye-witness to the accident. D.W. 2 Raghavendra Venkatarao Koulagi is the photographer who has taken the photos of the K.S.R.T.C. bus after the accident.
5. The Tribunal after assessing the evidence on record found that the accident was the result of rash and negligent driving of the K.S.R.T.C. bus and that the injuries suffered by the petitioner were directly due to it. It rejected all other contentions raised by the contesting respondent and fixed the earning capacity of the claimant at Rs. 100/- and holding the monthly loss of income at Rs. 40/- came to the conclusion that the loss of the future income would be Rs.12,000/- and making allowance for lump sum payment, it was reduced to Rs. 9,600/-. The Tribunal awarded Rs. 6,000/- as general damages and Rs. 200/- as special damages for treatment and medical expenses. From out of this amount, however, the Tribunal deducted Rs. 7,000/- which was received by the petitioner from the employer, the Esso Company, and in that view the Tribunal awarded Rs. 8,800/- together with interest thereon at 6 per cent per annum from the date of the award till the date of payment with costs to the petitioner by its order and award dated 30-1-1976. The appeal and cross objections are directed against the said award.
6. The learned counsel for the appellant vehemently urged that the Tribunal was not justified in holding that the accident was the result of rash and negligent conduct on the part of the driver of the K.S.R.T.C. bus. According to him, the general damages awarded were unduly high. As against this, the learned counsel appearing for the cross-objector, submitted that the Tribunal erred in deducting Rs. 7,000/- from out of the damages awarded. He further submitted that the Tribunal was not correct in fixing the loss of income of the injured-claimant at Rs. 100/- per month.
7. The points therefore that arise for our consideration in this proceeding are:
(1) whether the Tribunal is justified in holding that the accident in question was the result of rash and negligent driving of the K.S.R.T.C. bus ?
(2) Whether the Tribunal erred in fixing the monthly income of the petitioner at Rs. 100/- and in awarding pecuniary loss on that basis ?
(3) Whether the Tribunal was justified in deducting Rs. 7000/- from the award made in favour of the injured-claimant ?
(4) whether the general damages awarded at Rs. 6,000/- are just and proper?
8. It is the case of the claimant that he was driving the tanker from Gadag on his left side with moderate speed. When he was about 5 miles away from Hubli the K.S.R.T.C. bus driven by its driver in a rash and negligent manner. According to the petitioner, came on the offside of the road and hit the front right side of the tanker as a result of which the driver-petitioner sustained several injuries. In support of his case, petitioner has given his own evidence and in addition he has examined one witness who was travelling in the tanker itself. Both of them have given their evidence in support of the petition averments. As rightly pointed out by the Tribunal there is nothing elicited in their cross-examination to detract from the probative value of the evidence. As against this, the contesting respondent did not examine the driver of the K.S.R.T.C. bus. He examined one witness as D.W. 1-a mechanic-whole evidence is rightly disbelieved by the Tribunal. It was submitted to us by Sri H. F. M. Reddy, learned counsel appearing for the original claimant, that the driver of the K.S.R.T.C. bus was convicted for rash and negligent driving in the Criminal Court and further that the order of conviction was confirmed by the Appellate Court. In the circumstances, the learned counsel appearing for K.S.R.T.C. was unable to pointed out how the finding of the Tribunal that the accident was the result of rash and negligent driving of the K.S.R.T.C. bus was not justified. The oral evidence of P. Ws. 1 and 3 is corroborated by the circumstantial evidence. The K.S.R.T.C. bus had actually gone into the field and stood. That shows that the driver of the K.S.R.T.C. bus was unable to control the bus because of its speed. The learned counsel appearing for the petitioner, however, invited our attention to the photos Exhibits P-5 to P-8 taken by D.W. 2. These photos would not be of any assistance in deciding the issue as these photos were taken after the accident when the K.S.R.T.C. bus was found in the field.
9. Therefore, we find no good ground to interfere with the finding of the Tribunal that the accident was the result of the rash and negligent driving of the K.S.R.T.C. bus.
10. Next, we would advert to the quantum of general damages awarded in this case. It is in the evidence of P.W. 4 Dr. Srinivasa Bidi that as a result of the accident the claimant suffered the following injuries:-
1. Lacerated wound 3' x 2' scalp deep over right frontal area. Bleeding was seen. The wound was T shaped.
2. Lacerated wound 1' x 1/2' skin deep over right temporal region.
3. Lacerated wound 1/4th' x 1/8' on the medial end of left upper eyelid. Bleeding was seen.
4. Split lacerated wound 1' x 1/2' bone deep 1' above the wound No. 1.
5. Abrasion dorsum of left index proximal phalanx 1/4' in diameter.
6. Abrasions four in numbers over chin 1/2' to 1/4' to 1/8'.
7. Abrasion 1/8' in diameter over dorsum of left hand.
8. Lacerated wound 1' x 1', over lateral, epicondyle of right humerus. Bleeding was seen.
9. Lacerated wound 1' x 1'xs 1' anterior inferior to injury No. 8.
10. Lacerated wound 1 1/2' x 1', 1 1/2' below to injury No. 8.
11. Lacerated wound over poster lateral aspect of right upper arm at its middle.
12. Lacerated wound 1 1/2' x 1', 1 anterior injury No. 11.
13. Abrasion 3' x 2' over lateral aspect of right upper arm in its upper 1/3rd.
14. Abrasion 3' x 3' anterior aspect of right shoulder.
15. Abrasion 3' x 1/2' over lateral aspect of right shoulder.
16. Abrasion 1/2' x 1/4' over middle and lower part of right half of mandible.
17. Abrasion 1/2' x 1/2' over lower aspect of right knee.
18. Abrasion 4' x 5' over posterior aspect of right upper arm on its lower 1/3rd.
19. Clinically, fracture was doubtful, of right radius at its upper 1/3rd.
20. Abrasion 4' x 2' over lateral aspect of right thigh.
21. No evidence of fracture of the ribs clinically except right 5th and 6th ribs, whose fractures were clinically doubtful.
The doctor has stated that injuries, 3, 9, 10, 19 and 21 are grievous and the rest are simple in nature. He has further stated that injury No.3 has the effect of Cornealulcer ulcer and the injured has developed traumatic contract. In other words, there is deprivation of sight in the left eye. He has also suffered fracture of the right arm. These are not challenged.
10A. The petitioner has deposed in his evidence that he has lost the left eye sight and his right arm has become inefficient. General damages are to be awarded for these injuries, in addition to pain and suffering. Having these in mind, the Tribunal has awarded Rs. 6,000/- as general damages. It is true that in the case of the loss of one eye the High Court of Madras in the case of Madras Motor and General Insurance Co. Ltd. V. G. Murthi : AIR1975Mad21 has awarded general damages of Rs. 3,000/-. In the instant case, in addition to the loss of left eye the injured suffered several other injuries including the fracture in the right arm. In the case of Smt. Dalip Kaur v. Vanguard Insurance Co, Ltd., (1975 Acc CJ 90) the High Court of Delhi awarded damages of Rs. 3,900/- in the case of a house-wife who suffered a fracture of the left arm. In the instant case, the injured has suffered the fracture other injuries suffered by the petitioner. Thus, having regard to these injuries and the pain and suffering of the victim due to the accident we hold that general damages awarded at Rs. 6,000/- are quite reasonable and proper. We confirm the same.
11. We would next advert tot he damages awarded towards pecuniary loss incurred by the petitioner, as a result of the accident. He has lost the left eye. He has suffered infirmity in the right arm. Having regard to these, the tribunal has generally taken his loss of earning capacity at 40%. This cannot be disputed and is not disputed before us.
12. The next point that arises for consideration is the earning of the petitioner at the time of accident. The petitioner has stated in his evidence that he was working as a driver under Esso Company and that he was earning more than Rs. 300/- per month. The Manager of the Esso Company at Hubli is examined as P.W. 2. He has stated in his evidence thus:
'On 25-3-1972, P.W. 1 Khajahussain was in the service of the Esso Company at Hubli. He was working as a heavy vehicle driver. P.W. 1 Khajahussain was employed as a casual driver on the daily wages of Rs.12.50.'
Relying on this, the learned counsel submitted that the monthly income of the petitioner calculated at Rs. 100/- by the Tribunal is grossly inadequate. On the other hand, the learned counsel for the original respondent No. 1 pointed out that the petitioner was engaged as a casual driver under Esso Company and that he was not in the regular service of the Company. Even making concession for that it becomes manifest that the income taken at Rupees 100/- by the Tribunal is very low. Having regard to the fact that the petitioner was a casual driver and having regard to the fact that he might be doing some other work suited to his capacity when not employed under Esso, it would be just and reasonable to fix the monthly income of the petitioner at Rs. 200/- and we accordingly fix it at that rate in modification of the finding of the Tribunal.
13. The age of the claimant at the time of accident is taken by the Tribunal as 35 years. There is no clinching evidence on this point though the learned counsel for the petitioner tried to press into service that the are of the driver at the time of accident was only 30 years. In the petition his age is mentioned as 30 years; before the doctor he has mentioned the age as 29 years and while giving evidence, the age is mentioned 28 years. That being so, it is obvious that the petitioner himself was not sure about his age. The best evidence on the point should have been the birth extract or the school leaving certificate. They are not produced by him. In the absence of any clinching evidence we are not inclined to interfere with the finding of the Tribunal that he was 35 years of age at the time of the accident. The Tribunal has taken the life expectancy at 60 years and has calculated the income on that basis. But, it is obvious that even if the petitioner was working as driver in the Esso Company he would retire in all probability at 55 years of age. Hence, we are inclined to take the working age of the petitioner up to 55 years.
14. We have held above that the loss of earning capacity is at 40%. That being so, the monthly average loss to the petitioner as a result of the accident would be Rs. 80/- per month. The annual loss would be Rs. 960/-. Multiplying this by 20 years-the difference between 35 and 55-we get the lump sum of Rs, 19,200/-. We have to tax it down for the fact that a lump sum payment is made and also for uncertainties of life; reducing it by 20% we get the figure of Rs. 15,360/-. That in our opinion represents the proper compensation for pecuniary loss. We fix it accordingly modifying the quantum of damages awarded by the Tribunal.
15. The next point that arises for our consideration is whether the Tribunal was justified in deducting Rs. 7000/- which the petitioner received ex gratia from his employer-the Esso Company. On compassionate grounds P.W. 2 in the cross-examination has stated that the Esso Company has paid him Rs. 7,000/- as he was unable to continue as a driver of the Company. The learned counsel for the appellant (respondent No.1) relying on the decision Gobald Motor Service Ltd. v. R. M. K. Veluswami : 1SCR929 submitted that any amount that the injured received from any source should be given deduction to while awarding compensation. In the case under reference, the Supreme Court has not doubt observed that while awarding compensation in the case of death, any amount received from any source as a result of death should be given deduction. But the case of an injured is entirely on a different footing. In the instant case, the Company has given Rs. 7000/- to the ex-employee-the petitioner-on compassionate grounds, ex gratia and as rightly pointed out by the learned counsel for the petitioner such amounts paid by the Company cannot be given deduction, to favour the wrong-doer. In support of the proposition made by him he relied upon a decision of the Madras High Court in the case of A. P. Dorairaj v. Sate of Madras : AIR1974Mad252 . In that, it is observed that where the injured receives payments or other benefits gratuitously which might be equal to his wages, such payments are not to be taken into consideration in assessing the liability of the wrong-doer to recompense the injured regarding loss of wages. That is also the observation made in the case of Cunningham v. Harrison (1974 Acc CJ 218) by the Court of Appeal, England. Therein it is observed in para 9(b) that any ex gratia payment received by the injured cannot be deducted from the compensation due from the wrong-doer. We affirm the proposition with a rider that the position would be different if the claimant received the amount from the employer as of right.
16. That being so, we hold that the Tribunal was not justified in deducting Rs. 7000/- from our of the compensation amount due from the wrong-doer. Such ex gratia payments given on compassionate grounds to the petitioner would not enure tot he benefit of the wrong-doer and we hold that the Tribunal erred in making such deduction.
17. The special damages of Rs. 200/- awarded towards medical charges were not challenged before us.
18. In the result, therefore, the appeal is dismissed and the cross-objections are partly allowed. The petitioner-claimant is awarded Rs. 21,560/- as damages from the original respondent- K.S.R.T.C.-along with
interest thereon at 6 per cent per annum from the date of award till payment and also costs of the proceedings throughout. The respondent-appellant shall bear his own costs.
19. Appeal dismissed;
cross-objection partly allowed.