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Amul Ramchandra Gandhi Vs. Abhasbhai Kasambhai Diwan and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 581 of 1977
Judge
Reported inAIR1979Guj14
ActsMotor Vehicles Act, 1939 - Sections 110-B
AppellantAmul Ramchandra Gandhi
RespondentAbhasbhai Kasambhai Diwan and ors.
Appellant Advocate S.B. Majumdar, Adv.
Respondent Advocate S.B. Vakil, Adv.
Cases ReferredBharat Premji v. Ahmedabad Municipal Corporation
Excerpt:
(i) motor vehicles - contributory negligence - motor vehicles act, 1939 - contributory negligence cannot be attributed to child unless proved that child is of such an age and understanding as reasonably to be expected to take precaution for his own safety and blame of accident could be necessarily attached to him. (ii) compensation - section 110-b of motor vehicles act, 1939 - amputation of right foot of child at age of 12 years - no contributory negligence attributable to victim - deduction of 10 percent from compensation on ground of contributory negligence set aside - rs. 25000 awarded for pain and suffering - income of child in future calculated as rs. 250 and multiple of 15 applied - rs. 45000 awarded for future pecuniary loss. - - 98 at page 93 are found the following.....p.d. desai, j.1. x x x x x x x x x 2. the claim for compensation arose out of an accident which occurred on july 10, 1975 at about 11-45 a.m. behind nyaya mandir on the madan zampa road in the city of baroda. the appellant-claimant, who was at the material time aged about 12, was at that time returning from his school. two of his friends accompanied him. the appellant was proceeding along the road from north to south. a truck bearing no. gtg 1100, which was proceeding in the same direction, approached from behind and knocked down the appellant. the right foot of the appellant was crushed under the front left wheel of the vehicle. the appellant was immediately removed to the s. s. g. hospital, baroda where an examination, it was found that as a result of the injuries the bones, muscles and.....
Judgment:

P.D. Desai, J.

1. x x x x x x x x x

2. The claim for compensation arose out of an accident which occurred on July 10, 1975 at about 11-45 A.M. behind Nyaya Mandir on the Madan Zampa Road in the city of Baroda. The appellant-claimant, who was at the material time aged about 12, was at that time returning from his school. Two of his friends accompanied him. The appellant was proceeding along the road from north to south. A truck bearing No. GTG 1100, which was proceeding in the same direction, approached from behind and knocked down the appellant. The right foot of the appellant was crushed under the front left wheel of the vehicle. The appellant was immediately removed to the S. S. G. Hospital, Baroda where an examination, it was found that as a result of the injuries the bones, muscles and tissues of the light foot were crushed. Operation was performed on the same day and the right foot of the appellant was amputated from above the ankle. The appellant was discharged from the hospital on July 31, 1975. According to the evidence of the appellant, as a result of the amputation he is required to use crutches. He has got an artificial leg prepared at Poona, which he uses along with special shoes while going to the school.

3-4. x x x x x x x x x x x

5. The first question which arises for consideration is whether the Tribunal's finding as to the contributory negligence of the appellant to the extent of 10% is just, proper and legal. In dealing with this question, it is required to be borne in mind that the appellant at the material time was aged about 12. He was, therefore, a child and not an adult person. In Halsbury's Laws of England, Third Edition, Volume 28. Para. 98 at page 93 are found the following observations which are relevant and which may, therefore, be quoted :-

'A distinction must be drawn between children and adults, for an act which would constitute contributory negligence on the part of an adult may fail to do so in the case of a child or young person, the reason being that a child cannot be expected to be as careful for his own safety as an adult. Where a child is of such an age as to be naturally ignorant of danger or to be unable to fend for himself at all, he cannot be said to be guilty of contributory negligence with regard to a matter beyond big appreciation, but quite young children are held responsible for not exercising that care which may reasonably be expected of them.

Where a child in doing an act which contributed to the accident was only following the instincts natural to his age and the circumstances, he is not guilty of contributory negligence, but the taking of reasonable precautions by the defendant to protect a child against his own propensities may afford evidence that the defendant was not negligent, and is therefore not liable.

The question whether a child is of sufficient age and intelligence to realise and appreciate the risks he runs so as to be capable of being guilty of contributory negligence is a question of fact for the jury.'

These observations made by the learned authors are borne out by some of the, leading decisions to which we shall now refer.

6. In Yachuk v. Oliver Blais Co. Ltd 1949 AC 386, the Privy Council was concerned with the case of an infant appellant, nine years of age. He, in the company of his younger brother, aged seven, made a false representation to an employee at the respondent's gasoline station that he required some gasoline for his mother's motor car which was 'stuck down the street'. The boys in fact wanted the gasoline to make torches to be used in a game, out of sight of, and some distance from, the gasoline station. After procuring gasoline, the appellant dipped a bulrush in the pail of gasoline, handed it, dripping, to his younger brother, and lighted it. The gasoline lying in the pail, which was between the boys, caught fire and the infant appellant was severely burned. On a claim by the child against the respondent for damages for negligence, the Supreme Court of Canada held, concurring with the finding of the trial Court, that there was contributory negligence on the part of the infant plaintiff. In reaching this conclusion, the Supreme Court of Canada reversed the decision of the Court of appeal for Ontario which had held that the defense of contributory negligence failed because 'if one gives to a child an explosive substance, and the child. With a limited knowledge in respect to the likely effect of the explosion, is tempted to meddle with it to his injury, it cannot be said in answer to a claim on behalf of the child that he did meddle to his own injury, or that he was tempted to do that which a child of his years might reasonably be expected to do.' The Privy Council found on examination of the evidence that the infant plaintiff had no knowledge of the peculiarly dangerous quality of gasoline. He knew, no doubt, that an object soaked in gasoline could be ignited with a match. He did not know that gasoline wag a volatile liquid capable of producing a highly inflammable vapors likely to burst into flame if heat was brought near it. The boy himself had deposed that his father had told him to keep away from his gasoline torch but that neither of his parents had ever warned him to be careful with gasoline. On the evidence as it was ' the Privy Council found it impossible to regard him as any more capable of taking care of himself in the circumstances in which he was placed than a normal boy of his age might be expected to be. The Privy Council held that the principle flowing from the following observations of Lord Denman C. J. in Lynch v. Nurdin, (1841) 1 QB 29 at p. 38 was rightly applied by the Court of Appeal for Ontario:-

'The most blameable carelessness of this servant having tempted the child, he (the defendant) ought not to reproach the child with yielding to that temptation. He has been the real and only cause of the mischief. He has been deficient in ordinary care; the child, acting without prudence or thought, has, however, shown these qualities in as great a degree as he could be expected to possess them. His misconduct bears no proportion to that of the defendant which produced it.'

The Privy Council concluded that it was a fair inference from the evidence that it was the very property of gasoline which he neither knew, nor could be expected to know, which brought about his misadventure. On the facts of the case, therefore ' the finding of contributory negligence was held to be not supportable.

7. In Gough v. Thorne, 1967 AC 183, the Court of Appeal was concerned with a child aged 13 1/2 who was waiting on a payment along with his elder brother to cross a main road. The driver of a vehicle stopped his vehicle to allow them to cross and beckoned them to pass. While they were crossing the road, the child was knocked down by another vehicle which came from behind at a rash speed. It was contended on behalf of the driver of the offending vehicle that the child should have leant forward to ensure that there was no other vehicle approaching from the off-side of the stationary vehicle and that therefore the child was guilty of contributory negligence. The learned trial judge had held that there was contributory negligence on the part of the child who was careless in advancing past the lorry into the open road without pausing to see whether there was any traffic coming from her right. The degree of the child's responsibility was assessed at one-third. Lord Denning M. R. reversed the said finding holding that :

'I am afraid that I cannot agree with the judge, A very young child cannot be guilty of contributory negligence. An older child may be; but it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety; and then he or she is only to be found guilty if blame should be attached to him or her. A child has not the road sense or the experience of his or her elders. He or she is not to be found guilty unless be Or she is blameworthy.' In the facts of the case it was found that no blameworthiness was attributable to the child at all. In view of the fact that the driver of the stationary vehicle bad beckoned her to pass, a child of 13Y2, it was observed, was not expected to lean forward and look to see whether anything was coming, which indeed might be reasonably expected of a grown-up person with a fully developed road sense. Danckwerts, L. J. observed that as regards the point about contributory negligence on the part of the child, he was entirely in agreement with 'every word' which Lord Denning M. R. had said. Salmon, L. J. observed that the question as to whether the child could be said to have been guilty of contributory negligence depended on whether any ordinary child of 13% could be expected to have done any more that) this child did. The learned Law Lord proceeded to observe:

'I say, 'any ordinary child'. I do not mean a paragon of prudence; nor do I mean a scatter-brained child; but the ordinary girl of 13 1/2

........................... ..................... .................. I agree that if she had been a good deal older and hardened by experience arid perhaps consequently with less confidence in adults, she might have said to herself. 'I wonder that matt has given the proper signal to traffic coming up? I wonder if that traffic has heeded it? I wonder if he thought to have beckoned me across when he did and whether he looked behind him before doing so'

She might not have gone past the front of the lorry without verifying for herself that it was safe to do so; but it would be quite wrong to hold that a child of 13% is negligent because she fails to go through those mental processes and relies unquestioningly on the lorry driver's signal'

The learned Law Lord, in view of this reasoning, agreed with Lord Denning, M. R., on the finding as to contributory negligence.

8. In Jones v. Lawrence, (1969) 3 All ER 267, the plaintiff was a boy aged seven years and three months. He ran out from behind a parked van across a road, apparently without looking. There was a collision between the infant plaintiff and the defendant who was riding a motor-cycle due to the defendant's negligence in travelling at about 50 miles per hour in a built-up area where there was a 30 miles per hour speed limit. The infant -plantiff sustained lacerations and fractures including a fractured skull. He bad made an excellent recovery from his injuries but there was some evidence of permanent brain damage resulting in impairment of his ability to concentrate. The accident resulted however in his missing one term's schooling and his school work was adversely affected for two or three years thereafter. At the trial, one of the defences raised was regarding contributory negligence. Cumming Bruce, J. held that the infant plaintiff should not have run out across the road in the path of a motor bicycle driven down the road at about 50 miles per hour. The question, however, was whether it proved that he bad shown a culpable want of care for his own safety. He had been taught road discipline and at the date of the trial when he was aged about 11 he described in the witness-box with perfect skill what he had been taught. The learned Judge then proceeded to observe.

'I do not doubt that he had received that teaching before the date of the accident and that if lie had given the matter a thought he would have realised it was his duty, as a matter of taking reasonable care for his own safety, to advance with the utmost caution and look round the comer of the van in order to see whether anything was coming before he walked or ran across the road. The propensity, however, of infants of seven years and three months to forget altogether what they have been taught was sensibly described by his schoolmistress. She made an observation that if a child of that age wants to get anywhere, he will forget all he has been taught. She said such children do not remember if something else is uppermost in their minds. She was only describing what I regard as the normal experience of children of the age of seven years and three months ....

In my view the defendant has failed as a matter of probability to show that the infant plaintiff was culpable or that his behaviour was anything other than that of a normal child who is, regretfully, momentarily forgetful of the perils of crossing a road. After all, what he had failed to notice was not the oncoming movement of a lorry, a bus or a car but a motor-bicycle which, of itself is probably less likely to force itself, as it approaches on the attention of a small child. Thus I negative contributory negligence.'

9. Nearer home we have the decision of a single judge of this Court in Minor Jayendra v. Dwarkadas Keshavlal Patel ' First Appeal No. 170 of 1971 decided on Feb. 10/12, 1973. In that case, the appellant, a boy aged about 9 years at the time of the accident, was crossing the road and his hand was held by an adult person. After covering a short distance while crossing the road, the appellant got released his hand and proceeded ahead alone and when he reached in the centre of the road ' be found a truck coming and he, therefore, started crossing the remainder of the road with a swift motion. When he had covered about three-fourth width of the road, the truck came in speed and knocked him down. That accident gave rise to the claim application which ultimately came to this Court. D. A. Desai, J. (as he then was) who heard the appeal, observed:

'The drivers of trucks in India are presumed to know that children of tender age are likely to run at the last moment or dart across the road. It is not open to them to say that none should cross the road while the vehicle is in motion, so that the drivers could have a free and easy passage.'

The correct approach, according to the learned Judge, therefore, was that at any given point of time on a given road, the driver must so drive his vehicle as to be able to bring the vehicle to a stand-still in case of emergency. In that case, the driver had admitted that he had seen the boy crossing the road and even then he was unable to avoid the collision. Therefore, it was found that the accident could not have occurred but for the negligence of the driver. The learned judge then proceeded to make the following observations:........ I would like to observe that when it is a question of a minor who is the victim of the accident, one could hardly argue with confidence that the minor was guilty of contributory negligence.' The learned judge then referred to the decisions in Gough v. Thorne and Jones v. Lawrence (1967 AC 183 and 1841-1 QB 29) (supra) and proceeded to observe:-

'In order that the defence of contributory negligence must succeed, it must be shown that the victim of the accident by his own negligence contributed to the occurring of the accident. Negligence can be attributed to a major person or to an adult person. Negligence is referable to a state of mind in either taking a risk or omitting to take precautions. Rashness is also referable to a state of mind deducible from the surrounding circumstances. Could it be said in the case of an infant that by its act deliberately done disclosing a master mind it contributed to the happening of the accident? The answer obviously must be in the negative .... ....... In fact, while deciding any question of the cause of accident where a minor is involved, the area of driver's duty must be examined with greatest precision, because in the cage of a child the driver must take all precautions to avoid the collision. In fact, in such a case one can safely say that unless the driver is in a position to show that the accident was an inevitable and unavoidable accident on establishment of primary facts, the inference of his negligence must be raised almost as a matter of fact.'

The learned judge, on the facts of the case before him, came to the conclusion that the driver of the truck was solely responsible fox the accident and that the accident was attributable to the rash and negligent driving of the motor truck by the driver and that the finding of the Tribunal that the minor applicant failed to prove that the accident was attributable to the rash and negligent driving of the motor truck by the driver was not correct.

10. Our attention was drawn to the decision of a Division Bench of this Court in Rehana Rahimbhai v. Transport Manager, Ahmedabad Municipal Transport Service : AIR1976Guj37 . That was a case in which a young girl aged about 16 was returning from her school on bicycle A municipal bus was coming from the opposite direction. The bus was not on the correct side and it was driven at more than normal speed which was expected in a road congested with the traffic of school children. The Court came to the conclusion that the root and the main cause of the accident was the rash and negligent driving of the bus. It was, however, found further that the girl had taken a wrong decision in swerving her cycle towards the right hand side and that in so doing she had taken a decision which was highly risky. On these findings, the Court held (at p. 46 of AIR):-

'if we look to the facts of this case in the light of the chain of causation, we find that initially it was the negligence of the driver of the bus which frightened the appellant to take a particular decision. It was as a result of this negligence in driving the bus, which induced the appellant in taking a wrong decision of going to the wrong side. Here it should be noticed that at the relevant time the appellant was hardly of 16 years of age, A girl of her age would surely not possess the matured and calm thinking which could be expected of persons of an advanced age. Under the circumstances, we do not find ourselves in agreement with the learned Government Pleader that, even if it is believed that this is a case of contributory negligence, the appellant's contribution to the accident should be assessed at 50%. In our opinion, if an integrated and comprehensive view of causation and responsibility is taken, it cannot be said that the appellant has contributed anything more than 25% to the unfortunate accident.'

It appears to have been thus found in that case that the girl was guilty of contributory negligence and that the extent of negligence was 25%. Two things, however, require to be home in mind in the context of this decision. First, that it does not appear to have been argued and the Courses attention does not appear to have been focussed on the question that in case of victims of accidents who are not major, the aspect of contributory negligence assumes a different colour. None of the decisions to which we have made a reference earlier appear to have been cited and considered by the Court. The decision, therefore, passes sub silentio, so far as the culpability on account of negligence on the part of a minor is concerned. It is well settled that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it (see State of Orissa v. Sudhansu Sekhar Misra. : (1970)ILLJ662SC . The decision in Rehanas case, therefore, cannot be read as laying down a principle contrary to what the several decided cases have adopted. Secondly, the girl in that case was aged 16. She was only two years short of the age of majority and, therefore, she was near adult. This decision cannot, therefore, be read as laying down that contributory negligence is attributable to children, irrespective of whether they are of an age and possess understanding by virtue of which they could be reasonably expected to take precautions for their own safety.

11. The principles which emerge on a review of the authorities may be thus summarized: A distinction must be necessarily drawn between children and adults when the question of contributory negligence arises for, a child cannot be expected to be as careful for his own safety as an adult. Where a child is of such an age as to be unable to fend for himself or to be naturally ignorant of danger, or where in doing an act which contributed to the accident, he was only following the instincts natural to his age and the circumstances, he is not guilty of contributory negligence. A child should be found guilty of contributory negligence only if it is established as a matter of fact on the evidence on record that he is of such an age and understanding as reasonably to be expected to take precautions for his own safety and the blame for the accident could be necessarily attached to him. In cases of road accidents, it must be borne in mind that a child is not possessed of the road sense or the experience of elders. Even if it transpires that he was taught road discipline either at home or at school and that, therefore, if he had bestowed some thought, he would have realized that it was his duty to take reasonable can for his own safety, still a normal child would not be held culpable in view, of his propensity to forget altogether what has been taught to him if something else is uppermost in his mind. A normal child is always momentarily forgetful of the perils of crossing and walking on a road, regretfully though, and under such circumstances, if he failed to notice even an on coming vehicle and got hurt by it, he cannot be held guilty of contributory negligence. In such a case, the question of the duty of the driver of the vehicle must be examined with greatest precision and unless the driver is in a position to show on establishment of, primary facts that he was driving the vehicle in such a manner that he could have brought it to standstill in case of emergency and that the accident was inevitable or unavoidable, the inference of his negligence and. his alone must be raised almost as a matter of course.

12. Let us now proceed to examine the evidence led at the trial, from which contributory negligence on the part of the appellant was inferred, The Panchanama, Ex. 40, as earlier stated, shows that there were bloodstains on the road at a distance of about 8 feet from the eastern foot-path. The evidence of the appellant is to the effect that he was walking on the left side on the tar road and that the truck came from behind and knocked him down. Under cross-examination, he stated that he did not know of the truck till it came and dashed against him. He denied the suggestion that there was a quarrel between him and his friends or that they were hitting each other with their school bags and that as he got a push from a friend, he fell down or came into contact with the truck. The evidence of the first respondent (driver) under examination-in-chief is in tune with the suggestion put to the appellant under cross-examination. Under cross-examination, the driver deposed that he had seen the boys for the first time when he was at a distance of about 15 feet. He applied the brakes but they did not work. He was unable to say as to how far his vehicle was from the left side foot-path at the time of the accident. In terms, he admitted that he should have driven slower than what he did, having regard to the fact that there was heavy traffic on the narrow road at the time of the accident. The Tribunal does not appear to have accepted the case with regard to the appellant having come into contact with the vehicle as he was pushed by his companions. The reasoning on the basis of which the Tribunal attributed contributory negligence to the appellant was that on a busy narrow road when there was heavy traffic at or about the time at which the accident took place, it was very risky and rash on the part of a pedestrian to walk on the road at a distance of about 8 feet from the footpath. According to the Tribunal, the appellant was quite unmindful of the vehicular traffic on the road, particularly the traffic approaching from behind him and, as such, he was guilty of contributory negligence. The question is whether the light of the well settled principles, this finding can be sustained on the evidence on record.

13. Now, in the first place, it must be borne in mind that this is a case in which the driver was driving a heavy vehicle like a truck on a road on which there was heavy traffic and that it was, therefore, his duty to take extra care. He should have been all the more careful having regard to the fact that school-going children were walking along or on the road. The driver, however, admittedly failed in this duty. His own admission at the trial was that he should have driven the truck at a slower speed. The driver was, therefore, not driving the vehicle in such a manner that it could have been brought to a standstill in an emergency. The accident was, therefore, not inevitable or unavoidable. In such a case, when once the negligence of the driver is found to be responsible for the occurrence of the accident, it is impossible to hold that there was contributory negligence on the part of the appellant so as to relieve the driver even partially from the evil consequences which followed his wrongful act. In the next place, it is idle to suppose that a normal boy aged 12, who is not expected to be a paragon of prudence, has the road sense or the experience of the hazards of the road traffic to the same extent as his elders. This is all the more so in a country like ours where even elders are not possessed of that degree of road discipline. It is not an uncommon sight here to find even adults walking on the road although there is an extensive foot-path or crossing the road at random though zebra-crossing is provided. There is no evidence to show that the appellant was taught road discipline either at home or at school and that he was, therefore, bestowed with an understandings that it was hazardous to walk on the road. Even if there was such evidence, it would have been required to be considered whether, when he was on his way home from the school in a playful mood in the company of his friends, he would not have overlooked all that he was taught. That apart, if he alighted from the foot-path and walked at a distance of about 8 feet from the foot-path on a road which was 28 ft. wide and was knocked down, from behind, it could hardly be inferred that his conduct was culpable. We cannot also overlook the circumstance that in this case the vehicle came from behind without sounding even the horn. It appears to us, in the overall context of all the circumstances Of the case, that this is not a case in which a boy aged about 12 could reasonably be expected to take precautions for his own safety and that the only inference which could be drawn is that the negligence was that of the driver and his alone. We, therefore, find it difficult to uphold the finding of contributory negligence recorded by the Tribunal and reverse its award in so far as it deducted out of the amount awarded a sum equivalent to 10% on account of the contributory negligence of which it found the appellant guilty. Consequently, the deduction in the sum of Rupees 2400/- made by the Tribunal out of the amount awarded by it on account of the contributory negligence of the appellant will have to be quashed and set aside.

14. x x x x x x x x

15. It is well settled that a person injured by another's wrong is entitled to general damages for non-pecuniary loss such as his pain and suffering, past and future, and his loss of amenity and enjoyment of life. In our recent decision in Babu Mansa v. Ahmedabad Municipal Corporation, : AIR1978Guj134 , we had an occasion to consider this question in some detail. We have there pointed out that damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases. The age of the injured person will also make a considerable difference because, for example an old lady with a broken and deformed leg will have fewer years to suffer than a young boy with a similar handicap.

16. Herein, we axe concerned with a young boy aged 12 whose right leg above the ankle has been amputated. In awarding compensation for non-pecuniary loss in such a case, we must be guided by damages awarded in comparable cases. We must, at the same time, bear in mind the particular circumstances of the appellant including his age and the need to continually reassess damages in view of the fall in the value of money. In Quantum of Damages in Personal Injury and Fatal Accident Claims by Kemp and Kemp, Volume 2, 1975 Edition, the learned authors have digested at pages 10211 and 10251 some of the English cases in which compensation was awarded for non-pecuniary loss to persons whose one leg below knee was amputated. Those cases, in our opinion, are comparable and they throw light on the bracket of damages into which an injury of this kind currently falls in England. The following table gives in a summary form the particulars of three of such awards:

Age of the victim Year of Amount of Amount at the time of the the award awarded.accident. 20 1962 6500 21 1975 8500 47 1975 10,000

17. We shall next refer to two cases decided by this Court where the claimant had suffered a loss of limb and compensation was awarded to him for pain and suffering and loss of amenities and enjoyment of life. In Ranjitsingh Gopalsingh v. Meenaxiben, (1972) 13 Guj LR 662, it was observed that the conventional amount on the basis of the normally accepted standard in our country was to award Rs. 10,000/- for pain and suffering in the case of loss of a limb. In that case, however, it was held that the conventional amount could hardly compensate the personal loss in the case of a young girl aged 11 who had lost her right arm and, therefore, additional 75% amount was awarded and the total amount under the head of pain and suffering and personal loss was made in the sum of Rs. 17,500/-. Be it noted that at page 671 the Court specifically observed that in awarding this amount it had not taken into consideration the personal inconvenience and discomfort or social discomfiture or consciousness of loss which the girl was likely to suffer because it was felt that the global assessment would take care of all these factors. However, the special circumstance that in the case of a female such loss of limb may considerably affect the chances of marriage was particularly taken into account.

18. In Keshavlal Bhagwandas Parmar v. Fasubhai Altrapbhai Saiyed, First Appeal No. 1141 of 1969 which was cl6cided with First Appeal No. 1149 of 1969 on Dec. 7, 1971; the Division Bench was concerned with the case of an injured claimant who was aged 39. His left leg was amputated from the thigh above the knee. There was also amputation of little index-finger of the left hand. It was there observed that so far as personal loss is concerned, besides the normal amount for pain and suffering, in such cases the injured must get an additional amount because of his personal handicap and discomfort and personal devaluation, which should be evaluated at least at 3/4th and the total amount of -compensation should be in the sum of Rs. 17,500/-.

19. The English cases and the two cases decided by this Court dealing with loss of limb indicate that the award under this head is usually of a substantial amount. In the two English cases where the injured plaintiff was aged about 20 or 21, an award in the sum of 6500/- was made in 1962 and an award in the sum of 8500/- was made in the year 1975. Both were cases of amputation of leg below the knee. This pattern indicates not only that the awards were substantial but also that they were revised upwards with passage of time in view of the fall in the value of money. In the cases of Meenaxiben and Keshavlal (1972-13 Guj LR 662 and ILR (1972) Guj 574) both of which were cases of loss of limb, Rs. 17,500/- were awarded as just compensation although in Meenaxiben's case Rs. 10,000/- were indicated to be the conventional sum for pain and suffering in the case of loss of limb. In Babu Mansa's case : AIR1978Guj134 , although it was not a case of loss but of permanent handicap of a limb, we awarded a sum of Rupees 15,000/- as the global amount under this head in the case of a boy aged about 15 having regard to the need to reassess damages in the light of the fall in the value of money. These awards furnish a provisional guidance.

20. As a result of the amputation of his right leg above the ankle, the young boy with whom we are concerned is required to use crutches. He has got an artificial leg prepared which he uses along with special shoes. He has, in terms, deposed that he has given up cycling. It is obvious that he cannot walk long distance at a time. He will have to give up many pleasures and amenities of life. He will have to seek support from outside agency even in regard to his day to day pursuits of life. He will suffer social discomfiture. His other prospects in social life will also suffer. When our own Court has awarded in the year 1971 a sum of Rs. 17,000/- for the loss of limb in the case of a young girl aged about 11 and also in the case of a adult aged about 39 (who obviously has fewer years to live than the appellant herein), we are of the view that an award in the sum of Rs. 25,000/- under this head would be just and proper in the instant case. We are conscious of the fact that in Meenaxiben's case, the injured person was a girl with all disabilities peculiar in the case of a female whereas herein we are concerned with a boy. Likewise, we are conscious of the fact that in Keshavlal's case the amputation of the leg was above the knee and there was amputation of one of the fingers. Herein the amputation is below the knee and no other limb is amputated. Still, however, considering the facts of this case including the young age of the appellant and the need to periodically reassess the damages at certain key points in view of the falling value of money, and the rising, standard of living, we are awarding a sum of Rs. 25,000/- to the appellant. This, in our opinion, is the bracket of damages into which this kind of injury will currently fall. We are, therefore, unable to uphold the award in the sum of Rs. 10,000/- under this head.

21. Next comes the compensation under the head of pecuniary loss. As has been often pointed out, this loss is itself divisible into two categories-one negative and another positive. In the first category falls the deprivation of earnings or other items which would have been received but for the accident and have now been taken away. In the second category is comprised the new positive burden of expenses required to be incurred as a result of the accident. For the assessment under the first sub-bead, an estimate of the probable future earnings had there been no accident and the actual earning power after the accident has to be made and the difference between the two is the loss of earning capacity which will have to be justly compensated. Several factors such as reduced eligibility for employment or loss of chances of favourable employment and loss of career will have to be considered. However, it is not easy to make such an estimate in the cast of a young boy about whose prospective earning and probable loss one has only to make an estimate - often a very rough estimate - based purely on guesswork. There are several uncertainties and imponderables involved. Under the other sub-head, namely, the new prospective burden of expenses to be incurred as a result of the accident. the costs of medical expenses, if any, which the injured person might be required to incur in future and his need of nursing and constant attendance and extra nourishment, if any, have to be taken into account.

22. In the present case, it appears that the Tribunal has awarded compensation by taking into account only the loss suffered under the first sub-head. It has not at all taken into account the loss under the second sub-head. The Tribunal assessed the probable income of the appellant at Rs. 300/-. It then made a deduction therefrom to the extent of one fourth for the handicap suffered by the appellant on account of the loss of the limb. It thus estimated the prospective pecuniary loss at Rs. 75/- per month. The datum annual figure was accordingly arrived at Rs. 900/per annum and applying the multiplier of 15. The Tribunal awarded compensation in the sum of Rs. 13,500/-. The question is whether the Tribunal erred in law in making this award.

23. Now, it appears to us in the forefront that the Tribunal erred in principle in ignoring altogether the second sub-head of loss to which we have referred earlier and in not awarding any compensation to the appellant in that behalf. Besides the assessment of the Tribunal in respect of the loss of earning capacity is based on a gross underestimate. The evidence of the father of the appellant, Ramchandra Gandhi, who is doing business in grains and groceries, is to the effect that he wanted his son to be a doctor or an engineer. He has deposed that he had himself studied up to the first year class of B. Corn. degree course. His eldest son was in 8th Standard. His daughter was studying in S. S. C. The appellant was reading in the 5th Standard at the time of the accident. In the 4tb Standard lie had passed with a rank between 10th and 15th. It would not be unreasonable to hold, having regard to this family background, that the appellant would in all probability have come out successfully in a degree course and then taken to some business, profession or avocation or even employment which would have given him a comfortable living. In these days, to assess the prospective income of a boy aged about 12 under these circumstances at Rs. 300/- per month is to make a gross underestimate. Likewise, to assess the loss of earning capacity at 25% only in the case of a loss of a vital limb, which brings about permanent disability, is also a gross underestimate. As pointed out by us in our recent decision in Bharat Premji v. Ahmedabad Municipal Corporation ' First Appeal No. 620 of 1974 decided on April 7/10, 1978: (reported in : AIR1978Guj196 ) in estimating the future loss of income, the primary consideration must be the nature and extent of the disablement of the limb permanent or temporary - total or partial and its likely resultant effect on the earning capacity in the chosen avocation, profession or employment. It is, therefore, not right to treat this problem as an abstract mathematical exercise. Therefore, the estimated loss of earning capacity in the sum of Rs. 75/- per month where there is amputation of right leg below knee of a boy with this family background is also riot realistic. Even on merits, therefore, the award suffers from an obvious error.

24. In the circumstances such as are present in this case, the best method to adopt would be to make a global assessment under both the sub-heads and to award compensation for pecuniary loss taking into account all the relevant factors enumerated above. The appellant's eligibility for employment, assuming that in his future life he would have sought employment, is bound to be reduced. In any case, any person riot suffering such disability would be preferred and. therefore, there is a loss of chance of favourable employment. Even assuming that the appellant would not have sought employment but taken to some profession, there is no manner of doubt that even if there be no total loss of career, there will be considerable handicap in pursuing that career. For a lawyer or doctor or engineer, to work on crutches or with an artificial limb and surgical boots, is bound to be a somewhat difficult exercise. But this is not all, The appellant will constantly need some attendance. He may also have to periodically incur expenditure on new crutches. The artificial limb will have to be replaced from time to time as the appellant grows in age and physical changes occur. The surgical boot would also for the same reason need to be replaced. There is no positive evidence whether any medical expenses will be needed to be incurred and whether the appellant would need any special nourishment. But, on probabilities, some expenditure even on this count cannot be ruled out. For all this also the appellant has to be compensated. it appears to us, having regard to all circumstances of the case that if the pecuniary loss of the appellant is estimated at Rs. 250/- per month, that is to say at Rs. 3,000/- per annum, it would take care of every conceivable relevant factor. In case of a young boy aged 12 the multiple to be adopted cannot be less than 15. The Tribunal, having regard to all the imponderables, has taken the multiple of 15 and we see no reason to depart from that. On the aforesaid basis the pecuniary loss would come to Rs. 45000/- and the compensation under this head must be in the said sum. We are unable to uphold the award in the sum of Rs. 13,500/- under this head.

25. We accordingly hold that the appellant is entitled to additional compensation as under as a result of the foregoing discussion:-

Rs. 2400/- Deduction for contributory negligence disallowed.Rs 15000/- Pain and suffering and loss of amenities and enjoyment of life.Rs 31500/- Future pecuniary loss.Rs. 48900/-

The appellant will accordingly be entitled to additional compensation in the sum of Rs 48,900/- with interest at 6% per annum from the date of the claim petition and proportionate costs throughout. The respondents shall deposit the said amount in the Tribunal within two months. Out of the said amount the Tribunal will arrange to have an amount of Rs. 48000/- deposited in fixed deposit with a nationalized bank for a period of ten years with the condition that the appellant will not be entitled to withdraw the amount before the due date nor will it be open to him to raise any loan against the said fixed deposit without the prior permission of the Tribunal. Till the fixed deposit matures the appellant will be entitled only to receive interest accruing due from time to time, if he so desires. The balance amount including the amount of costs and interest will be paid over to the guardian of the appellant after due identification. This direction is being given with the consent of the learned advocate appearing on behalf of the appellant to whom a suggestion to this effect was made by the Court in the interest of the appellant himself. In giving this direction, we have also been guided by the fact that an amount of Rs. 21,600/will be made available to the appellant as soon as he completes his age of 18 years. A part of the compensation amount would thus become available to him in none too distant future. There will be no order as to the costs of the respondents. A copy of this order will be sent by the Registry to the Collector as the appeal has been preferred by the applicants as a indigent person.

26. Appeal allowed.


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