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Chaturji Amarji and ors. Vs. Ahmad Rahimbux and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1979CriLJ107; (1978)GLR850
AppellantChaturji Amarji and ors.
RespondentAhmad Rahimbux and ors.
Cases ReferredIn Senior v. Barkar and Allen
Excerpt:
- - 73, of the scene of the accident, the evidence of the witnesses also gives a fairly good idea about the same. the vehicles were driven on a narrow road and, it was, therefore, expected of both the drivers that they should proceed with extreme care and caution and at very slow speed when negotiating the road which was hardly 12' so far as asphalted portion was concerned with a kutcha strip on either side of 5'.if the vehicles had slowed down and proceeded after keeping good distance between the two vehicles, the accident would never have happened. it is well settled that where primary facts have been proved to raise a prima facie inference that the accident was caused by the negligence on the part of the opponents, the issue shall be decided in the claimant's favour unless the.....m.k. shah, j.1. a college student was returning after playing a cricket match, representing his college, i. e. deesa commerce college, against the modasa college, by a s.t. bus from modasa to ahmedabad. during the course of this journey, on the 30th of september 1971, in an accident, he lost his right forearm; and these two appeals arise out of the claim petition filed in this behalf by the said claimant. when the s.t. bus in which the claimant was travelling came near rakhial a truck bearing no. gte 2358 came from the opposite direction. both the vehicles were on a narrow road, asphalted portion whereof was 12' only with a kutcha strip on either side of the width of 5 ft. the claimant was sitting in the last but one rear seat of the bus resting his right arm on a window railing, and when.....
Judgment:

M.K. Shah, J.

1. A college student was returning after playing a cricket match, representing his college, i. e. Deesa Commerce College, against the Modasa College, by a S.T. bus from Modasa to Ahmedabad. During the course of this journey, on the 30th of September 1971, in an accident, he lost his right forearm; and these two appeals arise out of the claim petition filed in this behalf by the said claimant. When the S.T. bus in which the claimant was travelling came near Rakhial a truck bearing No. GTE 2358 came from the opposite direction. Both the vehicles were on a narrow road, asphalted portion whereof was 12' only with a kutcha strip on either side of the width of 5 ft. The claimant was sitting in the last but one rear seat of the bus resting his right arm on a window railing, and when the vehicles passed each other, his forearm was severed from the point of elbow joint and was thrown out on the road. He claimed an amount of Rs. 80,000/- from the opponents.

2. Opponent No. 1 Chaturji was the driver of the said truck. This truck was owned by Keshavlal, opponent No. 2, and the same was insured by opponent No. 3, insurance company, i. e. The Jupiter General Insurance Company Ltd. The S.T. bus was being driven by opponent No. 4 Shantilal Modi, and, it was owned by opponent No. 5, the State Road Transport Corporation.

3. M. A. C. T. Application No. 10 of 1972 filed by the claimant was tried by the Motor Accident Claims Tribunal, Ahmedabad (Roral) at Narol, and, on the evidence led before him, the learned Judge, presiding over the said Tribunal, came to the conclusion that the accident happened because of rash and negligent driving on the part of the drivers of both the vehicles. He also held that the claimant was not guilty of any contributory negligence. He awarded a sum of Rs. 43,200/-, as and by way of economic loss and Rs. 15,000/- as special damages for shock and mental agony, which the claimant had undergone, and was likely to undergo for the rest of his life. He held that both the drivers were equally responsible for the said accident, and he ordered that they should pay Rs, 58,200/-in all, with interest at 6% from the date of the petition till realisation. The liability between opponents Nos. 1, 2 and 3 of the one set and Nos. 4 and 5 of the other set was apportioned in equal proportion i. e. Rs. 29,100/- for opponents Nos. 1,2,3 and Rs. 29,100/- for the other set of opponents Nos. 4 and 5 who were jointly and severally responsible for their respective liabilities. He also ordered to pay costs to the claimant in the said proportion.

4. Aggrieved by this order, opponents Nos. 1, 2 and 3, have approached this Court in F. A. No. 391 of 1973; while, opponent No. 5 i. e. State Road Transport Corporation, has approached this Court in F. A. No. 575 of 1973. Both the ap- peals were heard together and they are now being disposed of by this common judgment.

5. Mr. S.K. Zaveri and Mr. D. K. Tri-vedi for Mr. G. N. Desai, appearing for the appellants, in both the appeals, have first of all contended that this is a case of exclusive negligence on the part of the claimant himself which resulted in the accident, and the drivers of both the vehicles were driving their vehicles with care and caution and were not in any way guilty of any negligence in driving their respective vehicles, resulting in the accident.

6. In order to appreciate the contentions raised on both the sides, some topographical idea of the place of the accident will be necessary. Apart from the Panchnama, Ex. 73, of the scene of the accident, the evidence of the witnesses also gives a fairly good idea about the same. The place is located on the highway between Ahmedabad and Modasa near Rakhial, at a distance of about a mile and a half. The width of the asphalted portion of the road is 12', and on each side, there is a Kutcha strip of road of the width of 5'. With this background, it will be now convenient to take up the points raised for consideration.

7. It was contended on behalf of the appellants in both the appeals that, as per the evidence of the drivers of both the vehicles, as also the conductor of the S.T. bus, i. e. Ex. 54, the truck driver; Ex. 56, the S.T. bus driver, and, Ex. 57, the conductor, the vehicles when they were passing each other on this road were keeping a distance of 1 1/2 feet from each other, and, they were cautiously driven with moderate speed. In the first instance, it was suggested that the claimant must have kept his arm outstretched outside so as to cover this gap and the accident, therefore, must have happened by his own negligence in keeping his arm outstretched in a dangerous position. In the alternative, it is suggested that, even if the arm was kept in a bent position from the elbow joint, it must be protruding in the bent position to a considerable extent of the gap and this also would be an act of negligence on the part of the claimant resulting in the accident. We are unable to accept any of the contentions for more than one reason. The facts which are established in this case tell their own story. They are primarily facts. The most significant fact is that the arm was completely severed from the elbow joint. There was' a traumatic amputation so neatly brought about by virtue of an impact by means of a hard and blunt substance (not a sharp cutting instrument), that the arm from the elbow joint got amputated completely, not leaving even a piece of bone or tissue. The arm was thrown on the road after the accident and as the Panchnama, Ex. 73, shows, it was seriously battered between the elbow and the wrist with the result that even bones were visible from the injured portion, and there was no injury whatever to the palm and the fingers of the hand. This, therefore, shows that the impact, which had resulted into this amputation, and the injury to the arm, must be a very forceful one. Dr, Karkhanawala, Ex. 50 says that the impact must have been violent, and, in his opinion, the impact must be nearer to the elbow joint and the area must have been within three inches on the either side of the joint. As per his deposition, from the elbow downward, there was no bone substance left. These are very primary facts which tell their own story of a negligent act of driving and it would be for the driver of the vehicle to show that it was otherwise. The vehicles were driven on a narrow road and, it was, therefore, expected of both the drivers that they should proceed with extreme care and caution and at very slow speed when negotiating the road which was hardly 12' so far as asphalted portion was concerned with a Kutcha strip on either side of 5'. If the vehicles had slowed down and proceeded after keeping good distance between the two vehicles, the accident would never have happened. It is not the case of any of the drivers that they had applied brakes and the Panchnama also does not show any brake marks; and that shows that even just before the accident happened, no attempt was made to arrest the speed of the vehicles. Negligence, therefore, of the drivers is obvious from the uncontroverted facts on record. It is well settled that where primary facts have been proved to raise a prima facie inference that the accident was caused by the negligence on the part of the opponents, the issue shall be decided in the claimant's favour unless the opponents by their evidence provide some answer which is adequate to displace the prima facie evidence. It is in this situation that the evidentiary burden of proof rests on the opponents in such a case. The opponents who are in control of this in- jurious agency, and the surrounding circumstances had on the establishment of such primary facts to prove that in all the circumstances which they knew or ought to have known they took all proper steps to avoid danger and once they failed to prove that they must be held liable to pay damages to the claimant. In the instant case, as earlier seen, the primary facts tell their own story. Here, the primary facts reveal that the drivers of both the vehicles were grossly negligent and, it would be, therefore, for them to discharge the burden of showing that the accident happened in spite of their having taken all care and caution expected of the drivers in such circumstances.

8. So far as the S.T. bus is concerned, this was sought to be justified by making an attempt to show that there was a board put up in the bus itself asking the passengers not to keep any part of the body outside the window. Now, in the instant case, the Panchnama of the S.T. bus does not show that any such board was put up. The claimant does not refer to any such board having been seen by him in the S.T. bus. As a matter of fact, no such suggestion was made to him in cross-examination on behalf of opponent No. 5. It is also the case of the defence that the driver of the S.T. bus had made a flash light which meant signal to the conductor to instruct the passengers that when the two vehicles were crossing each other, they should not keep any part of their body outside the bus window. But, here also, though the claimant, in his examination in chief, in terms stated that no such warning had ever been issued to the passengers by the conductor, no case about the flash of light by the driver and the conductor warning the passengers not to put any portion of their body outside the windows was put to the claimants. His statement, therefore, that no such warning was given by the conductor went unchallenged in cross-examination. As rightly observed by the learned Judge, this theory of giving flash signal is a cock and bull story. The evidence of the conductor and the driver in this connection is full of contradictions. The driver in his evidence says that he gave light signals to give instruction to the conductor to instruct passengers not to keep any part of their body outside the vehicle and the conductor had given such instructions to the passengers. In cross-examination, he admitted that there was no such special light for giving signal to the conductor nor could he say where the conductor was when he gave the signal. He also admitted that the gangway where the passengers were standing was packed to capacity. In answer to questions put by the Tribunal, he said that by flashing light twice the conductor can be signalled to ask the passengers to take inside the outstretched part of the body, but he could not say whether the conductor had in fact seen those signals. Now, if we look to the evidence of the conductor, he has a different story to tell. In clear terms, he says that by giving one flash of light the driver had signalled him to instruct the passengers. He denied that the vehicle was overloaded but he admitted that 11 passengers out of 64 were standing. He also admitted that he was at the rear at the time of the accident and he had not seen the truck. In this state of evidence and the inherent probabilities contained in the defence version, the learned Judge of the Tribunal has rightly rejected the defence case in this behalf.

9. Now so far as the truck driver is concerned, he has not given the correct description of the road because he says that the asphalted portion of the road was 25' and the Kutcha portion on both the side was 3'; while the Panchnama shows that the asphalted portion was only 12' with Kutcha strip of 5' on each side. Now, though this was a straight road, as the truck driver says, and it was day time, yet, as he says he had not seen anybody's arm protruding out of the window. If the arm was stretched out, as suggested by the defence, either in an outstretched position or in a bent position, then certainly, the truck driver would have seen it in a straight road in broad day light when he negotiates another vehicle, had he taken care to see straight, slowed down the vehicle and then started crossing the passenger-bus, keeping reasonable distance in between. This, therefore, does not show that he had exercised care and caution required of a driver when driving the vehicle on a narrow road crossing another vehicle coming from the opposite direction when he should slowly drive keeping safe distance between the two vehicles. If these precautions had been taken, by both the drivers, accident would never have happened. A forceful impact as earlier observed, is suggestive of the vehicles moving with speed faster than normally expected of drivers negotiating such a road.

10. It was then submitted that the fact that the arm was found lying on the road and not inside the vehicle was consistent with the defence version that the arm was stretched outside the window. There is no warrant for any such conclusion. This will depend on the nature and extent of the impact on the arm, as also the condition in which it was resting on the window rail. The fact that no part of the palm or finger is injured shows that that part had not come in contact with the vehicle and is suggestive of the fact that the arm was resting in a bent position with the palm inside the vehicle; and it is not unlikely that with a forceful impact resulting in amputation of the arm from the elbow joint completely, it would fly off towards the direction of the road. There is no universal rule that the arm would necessarily, after being severed from the elbow joint, fall into the vehicle itself, if it is resting on the window rail in a bent position with the palm inside the vehicle.

11. The correct criterion in such cases is first to find out as to whether it is a case in which arm or any part of the body of a passenger travelling by the bus was protruding unreasonably, and whether such an act on the part of the passenger was fraught with danger; and lastly, whether a conclusion was inevitable that he received the injury as a result of his own lack of care and positive negligence on his part. Secondly, a question may also be asked as to whether the accident resulting in the injuries to the passenger was the result of contemporaneous negligence on the part of the passenger as well as the driver or drivers of the vehicles concerned. In this connection, it has to be borne in mind that primarily the drivers owe a duty of safety to such passengers which consists of driving the vehicles slowly with care and caution, while crossing each other and not to bring their respective vehicles very close to each other so that any such passenger who is sitting with his arm or any part of his body resting on the window sill or the window rail or sitting in such a way that it protrudes therefrom, does not get hurt when the vehicles cross each other.

We are fortified in the view which we are taking in this behalf by a decision of this Court in First Appeal No. 74 of 1969 decided by D. A. Desai J. (as he then was) on 2-2-1973 (Guj) as also a decision of the Supreme Court referred to therein, being the decision in the Jamnagar Motor Transport Union Pvt. Ltd.'s case, Civil Appeal No. 551 of 1963, decided by the Supreme Court on 14-1-1966. In the appeal decided by D. A. Desai J. (as he then was) a passenger was sitting with his hand protruding out of the window from a bus in which he was travelling and he received injury when another vehicle coming from the opposite direction passed grazing, and the contention about negligence was negatived. Reference was made to the Supreme Court decision in Jamnagar Motor Transport case (supra) in which case also the deceased was resting his head travelling in a passenger bus on the side bar of the window; and a contention that resting the head itself was a negligent act was negatived. The Supreme Court observed that the act of resting his head could not be said to be a rash act. D. A. Desai J. after referring to the Supreme Court decision observed as follows:

Exactly identical is the situation before me, namely, that the applicant was resting his hand on the window and the hook of the incoming vehicle caused injuries to him and on this basis it could not be said that the injuries were suffered by him by his keeping his hand on the window.

12. There is decision of the Madhya Pradesh High Court in Sushma Mitra v. M. P. State Road Transport Co. 1974 ACJ 87 : AIR 1974 Madh Pra 68, which also clearly supports the view which we are taking. The facts there were very similar to the facts of the instant case. It was a case in which a passenger was resting his elbow on the window sill of the bus in which he was travelling and a truck came from the opposite direction and while crossing it hit against the right hand elbow of the passenger. The observations at page 90 of the said decision (1974 ACJ) : (at p. 70 of AIR) are worth noting:

It cannot be disputed that the driver of a bus which carries passengers owes a duty of care for the safety of passengers. While driving he must have the passengers in contemplation and he must avoid acts or omissions which can reasonably be foreseen to injure them and in deciding what acts or omissions he should avoid, he must bear in mind the normal habits of passengers. It is a matter of common experience that passengers who sit adjoining a window very often rest their arm on the window sill by which act the elbow projects outside the window. The driver of the bus must have these passengers also in contemplation and, therefore, while overtaking or crossing another vehicle on the road he must not come too close to the vehicle that is overtaken or crossed and he must leave sufficient gap between the vehicles to avoid injury to these passengers. The driver of a vehicle coming from the opposite direction owes a similar duty while crossing a passenger bus. He too must have in contemplation passengers sitting near the windows of the oncoming bus who may have their hands resting on the windows, and in crossing the bus he must not only avoid contact with the body of the bus but he must also avoid coming in contact with the elbow of any passenger that may be resting on the window and projecting outside the body of the bus. He must, therefore, take precautions to move to his near side and leave sufficient gap for preventing any mishap.

13. The learned Judge had the advantage of marking the demeanour of witnesses, and, if he has believed the claimant and not believed the witnesses examined on behalf of the opponents, particularly, when the primary facts, as earlier stated, tell their own story, there is no reason for us to take a contrary view on the evidence on record. In our opinion, there is sufficient evidence on record establishing the fact that the accident happened because of a rash and negligent act of the drivers of both the vehicles. It is difficult in such contingency to exactly measure the extent of negligence on the part of each driver though he is positively negligent. It is the composite negligence of both the drivers which has caused the accident, and in such a case, the apportionment, therefore, on the basis of half to half cannot be said to be erroneous, as was suggested by Mr. Trivedi representing original opponents Nos, 4 and 5.

14. This will take us to the question with regard to the quantum of damages awarded in the instant case. There are certain principles which are now well settled so far as the personal injury actions are concerned, and it would be better to recapitulate them at this stage. The assessment of damages in such cases has to be on recognised principles by following which principles various figures have to be arrived at. The figures have to be arrived at by following some method, principles, and standards, and not by speculation or conjectures. They are:

(1) Ordinarily, this Court would refuse to interfere unless the award is too high or too low or beyond brackets.

(2) As laid down in Hirji Virji Transport v. Bashiranbibi (1971) 12 Guj LR 783, in cases of disablement by virtue of loss of limb or any permanent defect, the compensation goes to a living person and not to the dependants or to the estate of the deceased and, therefore, it is an experience of the Courts that in disablement cases, compensation awards are always higher than even in cases of death.

(3) As laid down by the House of Lords in West (H) & Sons v. Shephard (1964) AC 326, the principles can be summarised in three propositions as under:

(a) Bodily injury is to be treated as a deprivation which entitles a plaintiff to damages, and that the amount of damages varies according to the gravity of injury;

(b) Deprivation may bring with it three consequences; loss of earning or earning capacity; expenses of having to pay others for what otherwise he would do for himself; and loss of enjoyment of life, or a diminution in full pleasures of living;

(c) in considering the deprivation, the Court should have regard to the gravity and degree of the deprivation, that is to say, whether one or more limbs have been lost, the duration of the deprivation, and the degree of awareness of the deprivation.

(4) The settled pattern of award in personal injury cases is not to award merely token damages, but to grant substantial amount.

(5) The amount to be awarded has to be on main two heads:

(a) personal loss (b) economic loss.

(a) Under the head of personal loss, damages for pain and suffering, loss of amenities, personal inconvenience; and discomfiture; social discomfiture or consciousness of loss would be included.

(b) The pecuniary or economic loss would include damages in respect of pecuniary loss, past and future, such as loss of earning, medical expenses and cost of nursing care, as also loss of earning capacity, where the injured is handicapped in the labour market. Besides, this, the damages would also be recoverable for loss of expectation of life where the injury is such which might result In cutting off of the normal expectation of life of the injured. For example, cases where there is serious injury to the brain or the spinal cord and the patient is likely to be deprived of considerable span of his expected life.

15. Now let us test the efficacy of the award in the instant case on the touchstone of these settled values. The learned Judge has awarded a sum of Rs. 15,000/-for shock and mental agony. He has taken into consideration the fact that here was a young boy, interested in outdoor activities and who had attained some competence in sports, as was found from the fact that he was representing his college in inter-collegiate tournament. He was a right-handed fast bowler. He was good at studies and had to take help of a writer at the examination held subsequent to the accident. As the learned Judge observed this shows that as the boy lost right arm, his life had become materially paralysed and his outdoor activities would be totally impaired. Whenever he sees a cricket match being played, he would have the mortification of being the silent spectator, whereas but for this mishap he would have been an active participant. The agony of his present existence and the ecstasy of what he could have been are so far removed from each other that it would make a world of difference in his personal life. From a jubilant extrovert he might be now converted into a brooding introvert. Taking all these factors Into consideration, Rs. 15,000/- have been awarded on this count.

15-A. So far as economic loss is concerned, though as the boy says his aim was to become a Chartered Accountant, the learned Judge, on the basis that, at least, on the strength of his previous academic record, it could be presumed that he had the makings of becoming a commerce graduate. In that case, he would have, at least, earned Rs. 300/- per month. It seems, by adopting the standards laid in the Workmen's Compensation Act, he has taken the disablement at 80% and has calculated the loss on that basis at the rate of Rs. 240/- per month, Le. Rs. 2,880/- per year. Taking the multiple of 15 years he has awarded Rs. 43,200/- on this head.

16. In this connection a case with similar facts decided in 1965 by the Court of Appeal in England provides good guidelines. In Senior v. Barkar and Allen (1965) 1 All ER 819, the plaintiff was a Jamaican born learner machinist working with the defendant. Severe injuries were received to his right hand with the result that for all practical purposes the same became useless in an accident. The facts were that, after the accident, the plaintiff had to undergo one or two operations during the course of which his fingers had been amputated, i. e., all except his right hand first finger, and, he had a little piece of that index finger i. e. the proximal part of the finger. The skin was torn off the back of his hand and he had to have grafting on it so as to heal the scars. He had really lost the main part of the use of his right hand, but he could grip quite a number of things between his thumb and the little piece of his forefinger which was left. After being sent to rehabilitation centre and registered to the Labour Exchange, the old employers offered him work of sweeping etc. at his old wage of . 7 7s. 9d. a week which he refused and he was without job until the matter came up for trial in July 1964. The total amount awarded of over 7000 consisted of 6500, general damages and 504 7s. 6d,, special damages.

17. Lord Denning M. R. while delivering judgment for the Court dismissing the appeal against the award in favour of the plaintiff for 7004 7s. 4d. as damages for the personal injuries caused, made the following important observations]

The usual practice In these Courts Is to take, especially with a boy of this age, a substantial number of years purchase; fifteen years purchase at that figure for loss of future earnings. It might be as much as 4000, Then in addition there is a loss of amenities; he has been deprived of the use of the hand, and has none of the amenities of life which a good hand gives. It was accepted by Counsel that in those days that figure might well be in the region of 2,500. , When one considers figures of that kind it seems quite plain to me that this figure of 7000 cannot be said to be a wholly erroneous estimate or as being far too high. I should like to draw attention to the fact that in 1953 in this Court in an accident of almost identical description to a man of twenty four, the Judge had awarded only 750 general damages and this Court increased them to 2100, making 2,500 in all. That was the year 1953. Well, we all know how the value of money has changed since that time. This award of 7000 today shows how the Judges keep pace with the times. This figure, and I think counsel agreed on behalf of the boy, is far higher than would have been given a few years ago. Wages have gone up, money has altered, and so the sums which are awarded have gone up. I must say that I can see no error in the sum which the Judge awarded, and I would dismiss the appeal.

18. In the instant case, if this standard is adopted, it cannot be said that a sum of Rs. 43,000/- awarded on the basis of the loss of 80% of the expected income, adopting 5 years purchase is far higher or out of proportion. On the contrary, if we take into consideration, the fact that the wages have gone up, money value has altered, then, even a higher amount could be awarded.

19. Our attention was also drawn to a case of this Court in Ranjitsingh Gopal-singh v. Meenaxiben (1972) 13 Guj LR 662. This was also a case in which the injured claimant had lost her right arm. The girl was aged 11 years and the evidence showed that the daughters of the family had gone up to matriculation level or college level. The Claims Tribunal had awarded a sum of Rs. 20,000/-, and In the appeal filed by the original opponents challenging the award, cross objections were filed claiming an amount of Rs. 50,000/-, .and this Court, while dismissing the appeal of the opponents, partly allowed the cross objections and the awarded sum of Rs. 20,000/- was raised to Rs. 32,000/-.

20. In the instant case also, the loss was taken at 80% of the earning capacity which was taken at the least figure of Rs. 100/- per month for keeping body and soul together, and so, on the basis of 15 years purchase, the economic loss worked out at Rs. 14,400/-. With regard to personal loss, the following observations may be noted at page 671':

There has to be equally substantial award also for the personal loss of amenities in life and the real material loss of marriage prospects. Even if we accept, the normally accepted standard of Rs. 10,000/- in such cases of pain and suffering, which is accepted by all eminent Judges, in the present case this figure could hardly compensate personal loss, when the loss is of the right hand and that too of a female. Therefore, ad- ditional 75% amount at least would barely provide a reasonable compensation on this score. Thus, a total amount of Rs. 17,500/- by way of personal loss is only capitalising the annual loss at the monthly figure of Rs. 96 or 97/-. That comes to a monthly loss, on this years' purchase factor of 15 even for this child who is aged 11 years. The child's future duration of life is a substantially long period. We also are not taking into account the personal inconvenience and discomfort or the social discomfiture or consciousness of loss which she would be always suffering while going out in the society along with the cost of some servant whose services she would require.' It was contended by Mr. Zaveri that both in the English case as well as Meenaxiben's case, the calculation concerns a person employed in manual or semi-manual work for the loss of arm or a hand and that was the relevant consideration. But in the case we are considering, submits Mr. Zaveri, the claimant was a student in the commerce class, his aim was to go for the profession of a Chartered Accountant, or as the learned Judge of the Tribunal observes, he would have been a commerce graduate. In either case, he would not be involved in manual work, and the loss of forearm, therefore, would not reflect to the same extent as in the case of a manual worker. We are unable to accept this contention of Mr. Zaveri. Now, in the first place, the case which was dealt by this Court in Meena-xiben's case, was the case of a girl, whose aim was to be a matriculate: But, because of the tender age of the girl which was 11 years one could not say with certainty if she would attain the education up to higher standard; and while dealing with future prospects, It was observed that even as a domestic servant she could have earned at least Rs. 100/-. This was not the case of a girl who was engaged as a domestic servant, or, who came from a family of the lower strata engaged in such work. This would be clear from the following observations of the Court at page 671:The father has deposed that he decided to educate her. We cannot doubt his words as even other members of the family had been given education, including daughters. After marriage the daughters may not have been required to pursue the educational career. Even as a school teacher or Bal Mandir teacher or even through her normal pursuits by the use of the right hand even by domestic household work, she could have at least earned her bare animal existence, which these days we can at least evaluate at Rs. 100/- per month for keeping body and soul together. Even if Workman's Compensation Act tables are referred to, which may not be relevant for judging the actual extent of the loss, when the whole arm is lost, the loss is to the extent of about 80% of the earning capacity.

It is, therefore, in this context that 80% formula is adopted, and, it cannot be said that the same cannot apply to the facts of the present case. Again, it should be borne in mind, that in the instant case, the injured was a right handed person who was representing his college team as a cricketer and as a fast bowler. Loss of the right forearm would be a serious handicap to him in his working life affecting his prospects. In these days, even whitecollar workers, who may not ordinarily have to do manual work, have to assist themselves in many of their chores with changing notions about the nature of the work, self help and about the circumstances in which the peons and the page-boys slowly get eliminated. Paid physical help from others, in offices is a matter of the past to a great extent. Again, with the increasing competition in the employment market, his chances have been considerably diminished, and, therefore, 80% which is adopted on the basis of the Workman's Compensation Act, though it may not be strictly relevant, cannot be said to be irrelevant, even if the overall effect of the loss of limb on the total body functioning and earning capacity is taken into account. In our opinion the award is on the conservative side, bearing in mind the correct standard In personal injury cases of such nature, where a vital limb like the right forearm has been lost. We, therefore, see no reason to interfere with the award of the Tribunal.

21. The result will be the following order:

Both the appeals are dismissed. The appellant in each appeal will pay costs of the respondent-claimant. No order as to costs with regard to the remaining respondents.


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