1. This appeal by the owner with the insurer is directed against the judgment and award dated 12-2-1980 passed by the Claims Tribunal, Bangalore City, in M.C. (M.V.C.) No. 212 of 1979 awarding compensation of Rs.3,05,924/- as compensation to the respondents especially from respondent 2-the Insurance Company.
2. The only point that was canvassed before us in this appeal is that the compensation awarded is out of all proportion to the nature of injuries sustained and that it does not compare well with the general run of awards made in comparable cases over some length of time.
2-A. The evidence on record discloses that the claimant sustained compound fracture of right patella and compound fracture of right femur. The fracture was reduced but it developed infection with the result that he had to continue the stay in the hospital. P. W. 3 Dr. Gyanachand of the Victoria Hospital has stated during his evidence that the patient was in the hospital from 17-1-1979 to 28-11980. His right leg had become shortened by 3 inches and his knee joint had become stiffened. He needed two more operations to improve his condition. As it was, he was not able to stand, he was not able to sit cross-legged and not able to walk fast or run. Hence, he deposed before the Tribunal that it was not possible for him to join back to his job which required several hours of standing unless he is offered an alternative suitable job. He further stated that in the condition as he was, it was not possible to have sex acts in the usual manner with his wife.
3. Syed Peer the victim of the accident and the claimant before the Tribunal was serving as an operator 'B' Grade in Bharat Electronics Ltd. since 3-6-1970. His salary at the time of accident was Rs. 687.20 paise. He was also getting 20 per cent bonus annually. According to him he had chances of promotion as an 'A' grade attender. He had 25 years of service left. On these averments he claimed Rs. 5,80,000/- before the Tribunal. The Tribunal, however, has awarded as Compensation Rs. 2,00,000/-, towards loss of salary Rs. 70,000/- towards general damages Rs. 20,000/- for loss of sex pleasure, Rs. 15,824/- towards nourishing food and medical expenses. It is these amounts that are challenged as exorbitant, before this Court in this appeal.
4. The sole point therefore that arises for our consideration is whether the compensation awarded is just and proper on the facts of the case.
5. The compensation in this case has to be awarded for shortening of right leg by nearly 3-21', stiffness of the knee and for restriction in the movement of the hip joint. We have to take into consideration the fact that the victim is not-able to stand for long, that he is not able to sit across legged, nor squat nor walk fast or run. He is likely to lose his job. Hence, the compensation has to be awarded not only for the injuries, pain and suffering and loss of amenities as also for loss of earning capacity.
6. We would take up for consideration the loss of earning. The petitioner as well as the doctor have deposed that he is not likely to go back and serve in the job. He was getting Rs. 687.20 ps. as salary at the time of accident. He was also getting bonus of 20 per cent annually and he was likely to 'be promoted as 'A' grade attender. Having regard to all these, for the purpose of loss of salary, we take the multi applicant at Rs. 700/and having regard to the rate of interest prevailing in the society, we take the multiplier at 10 Rs. 700 X 12 will be Rs. 8,400 x 10 would be Rs. 84,000/-. That would be the loss of earning of Syed Peer.
7. It is no doubt true that the principle is that both the interest and part of the capital must be utilised and the entire amount awarded should be exhausted at the end of the tether. (Vide Halsbury's Laws of England, Fourth Edition, Vol. 12 para 1156). K, S. R. T. C. v. H. Sarojamma, 1981 (1) ,KLCP 69). Besides there is a duty cast on the victim to mitigate the damages by doing some work which he can do. In that view Rs. 84,000/-, is on the higher side. Because throughout his life he would get by way of interest. Rs. 700/- per month and towards the end Rs. 84,000/- would be still in the bank. What we are awarding is on the higher side but, we award the same for the simple reason that even after retirement he had chances of earning and he had chances of saving and we have added only Rs. 10/- per month towards prospects of promotion. Hence, we do not propose to reduce Rupees 84,000/- arrived at by using the multiplier at 10. To this has to be added general damages which is mainly for pain and suffering for loss of amenities and for the injuries suffered. This Court has been awarding between Rs. 20,000/- to Rs. 30,000/- in the case of injuries like the present ones which resulted in stiffness of the knee and restriction of the movement of the hip joint reducing the earning capacity where no separate awards are made for loss of earning. On the facts of this case a separate award is made for loss of earning at Rs. 84,000/-. Therefore, we deem it just and proper to award Rs. 20,000/. as general damages mainly for pain and suffering and loss of amenities as also the dis. ability left over. To this has to be added Rs. 15,824/- special damages awarded by the Tribunal towards medical expenses etc.
Together therefore, the claimant is entitled to global compensation of of Rs. 1,19,824/- Instead of Rs.5,05,824/-. No separate damages are called for, for the temporary loss of sexual pleasure in view of the total compensation granted. (Vide Fletcher v. Autocar and Transporter Ltd., 1969 Acc CJ 99) (AC).
8. In the result, the appeal is partly allowed. The claimant shall be paid Rupees 1,19,824/- along with interest at 6 percent from the date of petition till payment as also the costs of the claimant before the Tribunal by respondents in the petition. Under Section 110-B of the Motor Vehicles Act, we direct that The entire amount of compensation awarded with costs and interest shall be paid over by the Insurance Company. If the Insurance Company has already paid some amount, the same shall be given deduction. In the view that we have taken, the cross objections filed by the claimant are dismissed
9. At this stage the learned counsel appearing for the claimants sought leave for appeal to the Supreme Court of India. The facts of the case do not involve any substantial question of law which needs to be considered by the Supreme Court of India. It involve merely appreciation of evidence. Hence the leave is refused.
10. Appeal partly allowed.