Mohini Kapur, J.
1. By Order dated 15th June, 1984, the learned Motor Accidents Claims Tribunal, Jaipur, awarded a sum of Rs. 67,775, to the appellant, on account of the compensation due to injury received by him in the accident. Interest at the rate of 10% per annum has been allowed from 9th June, 1984. It has also been ordered that out of this sum, Rs. 50,000/- alongwith interest on this amount shall be paid by the Insurance Company. The complainant is disatisfied with the compensation awarded to him and has preferred this appeal. The opposite party Hira Lal and Ranglal have preferred cross-objections in this appeal. They are the owner and driver of the truck, which was involved in the accident and their contention is that the accident occurred due to negligence of the claimant himself and as such he is not entitled to any compensation. Secondly, it is contended that the amount awarded as compensation is excessive.
2. On 12th December, 1979; at about 3 or 3.30 pm in the afternoon, truck No. RJL 9715 driven by Hira Lal was going on road No. 6 in Vishwakarma Industrial Area, Jaipur. At the crossing with road No. 5, a motor-cycle, driven by the appellant Ganesh Kant was coming from South to North. The direction of the truck was east to west and at this crossing the truck and motor-cycle collided with the result that the right foot of the claimant got crushed and his three fingers fell down at the site itself. He was taken to the hospital where his foot was amputated after an operation. In order to understand the manner in which the accident occurred, the version of both the parties may be first looked into.
3. According to the claimant-appellant, when he was going on his motor-cycle RRG 4245 towards inter-Section of road No. 6 in Vishvakarma then truck No. RJL 9715 came from his right side at a very fast speed and collided with it. The truck-driver did not blow the horn. The claimant fell-down and received severe in juried and motor-cycle was also badly damaged. According to him the motor-cycle was on its left-side and at a very slow speed and the negligence was of the truck-driver who came at a fast speed without blowing the horn. According to the opposite party the truck was coming at a slow speed and was being driven very carefully and it was the motor-cyclist who was coming at a fast speed and was trying to cross the inter-Section in a careless and negligent manner and when he saw the truck at the inter-Section he lost his balance and same and collided with the truck. Besides the complainant who was on the motor-cycle and Hira Lal, the driver of the truck the only eye-witness in this case is A.W. 3, Narendra Kumar Kasliwal, who was coming on a cycle. His version is that the truck was coming at a fast speed, without blowing the horn and the front left side of the truck hit the front part of the motor cycle then the claimant Ganesh was dragged for about 15 to 20. This witness attended to the injured first to took him to the dispensary and then to hospital. He also lodged a report of this accident at the police station Vishvakarma, Jaipur, in which he stated that at about 3.00 pm, when he was going on the cycle-then truck No. RJL 9715 hit a motor-cycle driven by Ganesh Kant at the inter-Section of Road No. 6. He stated that the truck did not blow a horn. He simply reported the accident without assigning any negligence or rashness in driving to either party. The learned Tribunal, while assessing the cause of the accident after analying the evidence, came to the conclusion that the truck was at a speed, which was more than the ordinary speed, with which he ought to have driven when be was entering an inter-Section and he did not blow the horn. He was further of the opinion that the traffic entering the inter-Section from the east-side, cannot be seen from the southern road be cause of some factory at the intersection. On account of this it was necessary that he ought to have been very slow at the intersection. It was further observed that the motor-cycle was also at a very fast speed because on seeing the truck, it had tried to apply the brakes and had dragged for a distance of about 13'. It was the duty of the Motor-cyclist also to approach the inter-Section at a slow speed and merely because he had blown the horn his duty and responsibility did not come to an end. Considering this negligence of the motor-cyclist, he was held guilty of contributory negligence which led to the deduction in the compensation allowed to him.
4. Llearned Counsel for the claimant appellant has contended that A.W. 3 Narendra Kasliwal is an independent witness who was coming behind the motor-cyclist on a bicycle. It is contended that the version of this independent witness should be believed and when he has deposed that it was the truck driver who was driving rashly and hit the motor-cyclist and dragged it for some distance then it should be held that the accident occurred due to rash and negligent driving of the truck-driver. In other words, on the basis of the evidence of this witness, it is contended that the appellant cannot be said to be guilty of contributory negligence In this connection, both the sides have drawn my attention to Ex. P. 19, which is the site-plan prepared by the police after the accident. In my opinion, this map is more helpful in many-ways than the version of the witness, who may be prejudiced to some extent. According to the site-plan Ex 19 to which the witness Narendra Kumar has also attested A has been shown as the place where the motor-cycle and truck collided with each other and 'B' is the place were the motor-cycle was found after the accident. These two places are very near to each other. 'C' to 'D' is a distance of 13 feet on the road South to North, which shows the motor-cycle applied brake very hard and marks of it were left on the road. After the accident, the truck was standing a little ahead of the inter-Section. There was some blood at the place where the accident occurred and the fingers of the foot were lying. This plan shows that the place 'A' where the truck and motor-cycle collided is more or less in the middle of the road, when one go East to West but it is towards the South. It means that the truck-driver had just crossed the intersection while he was driving on the left of the road, while the motor-cyclist was entering the inter-Section from south and at that time the accident took place.
5 The contention of the learned Counsel for the appellant is that the truck came at the inter-Section and hit the motor-cyclist from the front of the truck and as the motor-cyclist was already crossing the inter-Section the truck ought to have slowed-down and allowed it to pass, contending that the accident occurred from the front of the truck. It is contended hat the truck-driver should be held responsible for the accident without putting any blame on the motor-cyclist. The motor-cyclist bad blown the horn and was crossing the inter-Section on his left and a truck entering the crossing from the eastern side ought to have been careful before crossing and should be mindful of the traffic coming from South to North. Llearned Counsel for the appellant has drawn my attention to Regulation 6 in the 10th Schedule of the Motor Vehicles Act 1939, which lays-down that the driver of a motor vehicle shall slow down when approaching a road intersection, a road junction or a road corner and shall not enter any such intersection or junction until he has become aware that be may do so without endangering the safety of persons thereon.
6. Regulation 7 is that the driver of a motor vehicle shall, on entering a road intersection, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand.
7. Relying on these regulations, it is contended that when the truck-driver had not slowed down while approaching the inter-Section and had not satisfied himself that it would not be endangering the safety of other persons, then he has violated regulation 6 and the accident occurred due to his negligence. It may be observed here that this regulation applies equally to the appellant himself, who was also approaching in a road-intersection. It was for him to slow down, while approaching this inter-Section and to be satisfied that the way for him was clear. This regulation is more or less in the nature of the general rules for safe-driving and it applies to all of vehicles using the road to be careful while approaching an intersection and also slow-down in order to avert any mishap due to some traffic coming from the other direction, which may not be visible before approaching the intersection. Llearned Counsel for the appellant on the basis of statement of AW. 1 Ganesh Lal and A.W. 3 Narendra Kumar, who have stated that the motorcycle was at a s low speed and had also blown the horn wants to contend that there could be no contributory negligence on the motor-cyclist in the accident. Reliance has been placed in the case of Perminderjit Singh v. Union of India and Ors. 1983 A.C.J. 518 which was a case of accident between a bus and scooter. The scooter was proceeding on its correct side and bus came at a fast speed from the opposite side and swerved to its extreme right and struck the scooter. The scooter rider and pillion rider flung away and sustained injuries In the circumstances, it was held that the bus-driver was rash negligent and it could not be said that the claimants failed to prove negligence of bus driver. It was further discussed that no plea was taken as regards contributory negligence and this cannot be allowed to be raised. It was observed that the 'Accident Claims Tribunal must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly responsible. The Court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving.'
8. The circumstances of this case as concluded from the evidence were that the scooter and the bus were both coming from the opposite directions on their left but suddenly the bus came to the right and struck the scooter. Coming of the bus on the right-hand side was the negligence on which the responsibility for the accident of the scooter was placed on the bus-driver.
9. Another case relied upon by the learned Counsel for the appellant is Nirmala Sharma and Ors. v. Raja Ram and Anr. 1982 A.C.J. 143. This is a case where the accident occurred at an intersection. The deceased motorcyclist had covered a large part of the crossing when he was hit by a bus coming from his right side. Deceased and the motor-cycle were dragged to a considerable distance and the motorcycle was found lying just in front of the bus. There were skid marks of the bus and motor-cycle and bus suffered various damages. In these circumstances the motor-cyclist was not held liable for contributory negligence in causing the accident because there was no evidence to suggest any negligence of the deceased and there was evidence that the bus driver drove the bus at excessive speed even while approaching the crossing the contravened driving regulations 6 and 7 cited above.
10. Relying on the case of the Municipal Corporation of Greater, Bombay v. Govind V. Pethe : AIR1984Bom411 it is contended that in a matters of collusion between motor vehicles, the common law rule which treated contributory negligence as a complete defence as not only reducing the plaintiff's recovery but defeating it entirely, had to be modified by the 'last opportunity' or the 'last clear chance' dectrine. It permitted full recovery to a plaintiff not withstanding his own negligence if the defendant had to last opportunity of avoiding the accident but negligently failed to avail himself of it. Blending the rule of last clear chance with that of the apportionment of damages for contributory negligence the approach now is to have regard to all the causes and apportion the damages accordingly rather than select from a number of causes which was the effective and predominant one and to reject the rest.
11. In this case the claimant had traversed practically the entire width of the road and could not even avert the accident as the abutting portion of the central reservation track prevented him from doing so. On the other hand, considering the width and straightness of the road the bus driver had the applicant's scooter in full view when he was proceeding from north to south and could have easily averated the accident by slowing down the bus or turning it towards the left lane. In these premises the Tribunal was held to be right in holding the bus driver as completely negligent and not apportioning any damages by way of contributory negligence.
12. Llearned Counsel for the appellant in the alternative has also contended that even if the claimant is held to be negligent to some degree and the accident can be said to have occurred, wherein he also contributed some negligence, then his negligence should be assessed at less than 50%. In this connection, reliance has been placed on the case of Pushpa Rani Chopra and Ors. v. Anokha Singh and Ors. 1975 A.C.J. 396, where the motor cyclist dashed against the stationary truck parked on the main road and the night was dark and there was no street light. The negligence of the truck driver was assessed at 2/3 in that of the motor cyclist in the ratio of 1/3.
13. The contention of the learned Counsel for the opposite party is that the accident took place due to the negligence of the motor cyclist alone and unless it is shown that the truck driver was negligent, no liability can be placed on the owner and driver of the truck. Again my attention bad been drawn to the site plan Ex. P. 19 The motor-cyclist had applied brakes of his vehicle at the place which is about 14 from the point in the intersection, where the truck and motor-cycle struck each other. The motor-cyclist applied brakes which left marks on the road. This shows that the motorcyclist was coming at a fast speed and inspite of applying brakes for a distance of about 13', it could not stop the vehicle and prevent it from dashing against the truck. The site-inspection memo also goes to show that the truck had crossed a little more than a half of the intersection while the motor-cycle had just entered the intersection from the South and the accident took place. This also shows that the truck was on its way out of the intersection but the motor-cyclist suddenly came there. In this connection the mechanical inspection of both the vehicles is also relevant. The mechanical inspection of truck RLJ 9715 shows that the steering brakes, engine etc. were all in good condition. On the front-left tyre of the truck, there were signs of something dragging on the left corner front bumper, there was a dent and some other marks which were fresh. On the other hand the motor-cycle RRG 4245 was not in a condition to be driven. 6 spikes of front-wheel were broken. The front mudguard was bended. There was a dent in the right hand side of petrol-tank. The motor cycle had fallen on its left side and the left foot-rest was broken. The light was broken and the right foot-rest and the back were broken by scratch of a tyre. Some rubber had left its mark at that place. This site-inspection report may be kept in view while appreciating the statement of witnesses. It is no-body's case that the motor cycle came under the wheel of the truck. According to the claimant Ganesh Kant A.W. 1, the collusion took place from the front left wheel of the truck. He has stated that the truck had run over the motor-cycle. The truck did not even over run him but then he stated that it went over his foot.
14. Narendra Kumar A.W. 3 had stated that the truck hit the motor cycle from its front left side and then the claimant was dragged with the truck for about 15' to 20' but this dragging has not been stated by the claimant himself. There are no such signs of it at the site. If the claimant or his motor-cycle had been dragged for some distance with the truck then they would not have been found on the place where they have been marked in the site plan.
15. According to the opposite party, it was the motor-cyclist who came at a fast speed from the southern direction and hit the truck and the front left bumper when the truck had already crossed a little more than half of the inter-section.
16. Reliance had been placed on the case of Kamlesh Kumar and Ors. v. Prahlad and Anr. Accident and Compensation Cases 1985 vol. I, 439, in which it has been held that proof of negligence or rashness is necessary before the driver and/or owner of motor vehicle is held liable for payment of compensation and negligence or rashness in most of the cases is an inference to be drawn from proved facts. In this case the accident had occurred between a bus coming from Udaipur to Nathdwara and a scooter coming from the opposite direction on a sharp steep curve. Mechanical examination of both the vehicles showed that the glasses of the right side light and right indicator of the bus were found broken and there were some marks of scratches on the bumper and front show of the bus. Dent was found in both sides of the scooter. The scooter was found on the kachcha portion in the left side while going from Udaipur to Nathdwara. There were no tyre marks of bus on this kachcha portion. The blood marks were also found on the points which were on the extreme right edge of the road while coming from Udaipur to Nathdwara. From these circumstances, an inference was drawn that the bus was on its left side while it was the scooter, which was on the wrong side and it was the scooter which dashed with bus and not the vice versa. As the bus driver was not negligent in driving, no compensation was allowed.
17. I have examined the record, the statement of the witnesses and the documents in that case and have examined the contentions advanced on hehalf of both the parties. The manner in which the accident occurred can be inferred from the site-plan Ex. P. 19, the vehicle inspection report Ex. P. 20 and the statements of the witnesses. The truck did not drag the motor-cycle from its front portion. The marks on the truck show that the front left bumper and the front left wheel were involved in the accident. In this case both the truck driver and the motor-cyclist were on their own side of the right but when the truck had crossed little more than half of the intersection then it was for the motor-cyclist to slow down and let the truck pass before he could enter the road He had seen the truck from a distance of about 13' when he applied the brakes and tried to stop his vehicle but he could not do so. This goes to show that the motor-cycle was being driven at a fast speed and it could not be stopped even when it was apparent that there was obstruction on the main road due to which it could not pass. The manner in which the accident has occurred cannot absolve the motor-cyclist from negligence. It was the motor-cyclist who could not have averted the accident if he had not been driving at a very fast speed. The only question is whether it can be said that the truck driver was also negligent or not. It has been seen above that in regulation 6 of Schedule X of the Motor Vehicles Act which is also a rule of prudence, the driver of a motor vehicle shall slow down when approaching a road intersection. The truck driver did not blow the horn and his speed was more than that he ought to have been driving at a time while crossing the intersection. It is only to be expected that there will be traffic from both the sides at on intersection and one has to be very slow in order to be in a position to avoid any vehicle suddenly coming upon from the other direction. In this case the driver of the truck was driving at a speed more than what he ought to have been driving while crossing the intersection and as such cannot be absolved from this negligence. The accident in the present case has, therefore, been rightly held to be result of negligence on the part of the truck driver as well as the motor cyclist. As far as the apportionment of this negligence is concerned, learned Counsel for the appellant has tried to show that the blame of the motor cyclist should not be assessed at more than 25% but the circumstances in which the accident occurred, where the motor cyclist came and hit the moving truck on the front left bumper and the front left wheel cannot minimise his negligence. The apportionment of blame which is 50% on each party does not require any interference.
18. As regards the compensation allowed to the appellant, his claim was for Rs. 4,25,000/-. Learned Tribunal assessed the compensation at Rs. 1,35,550/-and allowed only half of it as the liability of the truck owner and driver. The income of the claimant has been assessed at Rs. 750/- per month and as his earning capacity has been reduced by 1/3, he has been allowed compensation at the rate of 25% per annum for 37 years considering the expected age to be 6-5 years. The Tribunal has assessed Rs. 9,000/- as compensation at the rate of Rs. 750/- for the period the claimant remained unwell and could move. Besides Rs. 1,590 have been allowed on account of expenses on medicines, Rs. 2100/- on account of extra expenses on diet including milk also. Besides this a sum of Rs. 2,960 have been assessed at Rs. 80/- per year on account of getting shoes of a particular type made for him. A sum of Rs 20.000/- have been assessed on account of mental and physical pain and loss of happiness. On account of that accident, he will have to live with one foot. The amount awarded by the Tribunal is said to be on the liberal side. It is contended that it has been assessed in a very generous manner. In order to appreciate this contention, it will be necessary to look into the evidence about the occupation of applicant. The applicant hid a factory in the name of Pratap Industries in Vishvakarma Area, Jaipur, where he was going at the time of the accident. This is a Wollen Mill which was first running in loss but later on there was a monthly income of Rs. 1500/- to 2000/-. The factory was settling down but because of this accident there was no one to look after it and it is to be closed. His father in whose name this factory is running is a heart patient and he himself could not attend to it. He has also admitted that a sum of Rs. 1,13,000/- have been obtained as loan from the bank for the purpose of this factory and their own contribution towards it is Rs 25,000/-. Now the machines are lying idle. His two elder brothers are doing business at Jaipur and earning about 5,000/- rupees. His younger brother is under-going some training and earning Rs. 250/-. On account of this accident, in which his foot has been amputated, he cannot ride bi-cycle and motor-cycle and it is difficult for him to board the bus and alight from it. According to him he is looked with contempt by the society and separate compensation has been claimed on this account also. He has not produced any account of the factory which was looked after by him. His father A.W. 2 Pratap Narain has stated that he himself does not do any work but had established the factory for his son Ganesh Kant by obtaining a loan from the bank. He had to sell some of the goods in order to get his son treated. The loan for the factory was in his own name but this factory was looked after by Ganesh Kant who is about 25 years of the age. There is nothing in writing that the income of this factory was to go to this son. It is contended by the opposite parties that in these circumstances when the claimant was not having any fixed income in his own name, his income should not have been assessed at Rs. 750/- per month and even when a person is in business his income cannot be said to have been reduced due to an injury in the foot. Relying on the case of Prafulla Kumar Bosa v. Suresh Kumar Vinod Kumar Lal Poddar and Ors. AIR 1977 248, it is contended that the amount of compensation must be reasonable and must be assessed with moderation. It was also held that regards must be had to awards made in the comparable case.
19. Sums awarded should, to a considerable extent, be conventional.
20. A sum of Rs. 20,000/- is allowed as compensation in this case when there was permanent disablement of the claimant from doing any kind of work as a mining expert or as administrator. He had become unfit for any serious intellectual pursuit. His normal expectation of life was also shortened.
21. In Oriental Fire and General Insurance Co. Ltd. v. M.C. Shashidhara and Ors. 19 4 A.C.J. 622 and nbsp; in a case of amputation of left leg the amount awarded as compensation was Rs. 15,000/- for disability and loss of future earnings, Rs. 10,000/- for pain, suffering and shock Rs 4,000/- for artificial leg and Rs. 4,000/- for treatment. Total Rs 33,000/-.
22. In Nasibdar Suba Fakir v. Adhia and Company and Ors. 1983 A.C.J. 264 and nbsp; in a case of amputation of kg below the knee, the total award was made in the sum of Rs. 40,200/-.
23. In another case reported Karnataka Statt Road Transport Corporation v. Samuel Ebenezer Abnes 1983 A.C.J. 547 a sum of Rs. 40,000/- was awarded to a student of the first year P.U.C. in the case of an injury of amputation of leg below the knee.
24. In the case of the Fazilka Dabwali Transport Company Pvt. Ltd. v. Madan Lal : AIR1977SC1482 the compensation awarded to a child as a result of accident in which he sustained amputation of one foot and injury to other leg was Rs. 12,000/-.
25. It may not be inferred from this case as to what were the future prospects of the child which met in this accident.
26. In Somabhai Ruvabhai Gamit v. Ayyubbhai Mustufabhai Sheikh A.C.J. 1985 Vol. II. 78 labourer of 20 years of age was awarded Rs. 52,125 as compensation as a result of injury his left leg required to be reamputated. His loss of earning capacity was assessed at Rs. 175/- per month and his total earning capacity was Rs. 300/-.
27. Llearned Counsel for the appellant has placed reliance upon the case of Jugal Kishore v. Rat Singh and Ors. 1932 A.C.J. 503 in which the injured was scooter-taxi driver. On account of amputation of his left foot above ankle, he was permanently disabled to drive a scooter. The Tribunal had awarded Rs. 1,00,000/- only.
28. In Kerala State Road Transport Corporation, Trivandrum V.M. Thomas, 1980 A C.J., 417. the person aged 56 years, who was an advocate as well as the member of Kerala Legislative Assembly earning Rs. 645/-per month was disabled due to serious fracture above knee and also suffered from 'Phantom limb', was allowed compensation amounting to Rs. 1,72,800/-as he was rendered beyond his reach for ever.
29. Keeping in view these decisions relied upon by both the parties, it is to be seen what amount of compensation should be awarded in the present case.
30. The claimant is a graduate, who was not having any job in his own name or fixed income whatsoever. He was looking after the factory of his father and it was not established as to what was the income from that factory and what amount was given to the claimant from it. It is just observation that the factory was getting a profit of Rs. 1500/- pm. His monthly income has been a guess work by the learned Tribunal on the basis that even an ordinary labourer earns Rs. 20 to 25 in a day. The loss of earning capacity has been assessed by the Medical Exports at 30%. These 30% have been fixed at Rs. 225/- by the learned Tribunal. In absence of specific evidence on this aspect, the compensation to be assessed has to be made on the basis of joint assessment only. The claimant has got amputated right foot which no doubt decrees his mobility and in not in a position to drive the motor-cycle or cycle. His efficiency in whatever work, he will do will be reduced. Assessing his loss of income at Rs. 225 p.m. cannot be said to be unreasonable. His expectation of life till the age of 65 years will make the compensation Rs. 99,900/-. Allowing the full amount of Rs. 750/- for a period of one year, during which the claimant remained in bed can also be said to be proper. I see no reason to interfere with the sum of Rs. 1,590/- allowed on account pf expenditure on medicines and Rs. 2100/- on account of diet, However, the bone of contention now will be the sum of Rs. 2,960 allowed at the rate of Rs. 80/- per year on account of a shoe of a special kind which he has to now wear, it cannot be expected that the claimant would not have worn the shoes at all in his life and it is for the first time he has to pay for a shoe because his foot has been amputated. This expenditure which one has to incur ordinarily when an injury or no injury is something which cannot be just. This amount deserves to be deducted from the amount of compensation awarded.
31. A sum of Rs. 20,000/- has been awarded on account of mental and physical pain and loss of happiness of life on account of the permanent injury in his foot. The applicant has stated that on account of this deformity, he is looked down with contempt by the society, This appears to be quite a strange approach. It is difficult to believe that a person who is injured in an accident and whose foot has to be amputated would be looked upon with contempt. In fact such a person receives sympathy from the society. Because of such an injury he does not lose his reputation amongst his follow-workers or friends so as to say that he should be allowed compensation on this head also. His own mental suffering as well as physical pain can be understood but to say that the Society looks upon his as something of an out caste. As too much to be believed and to grant compensation on this account. It should not be permissible to persons injured in an accident to make an effort to convert the mishap into a wind fall and only reasonable damages are to be allowed.
32. Considering that he can be allowed compensation for his own suffering and pain, a sum of Rs. 20,000/- allowed to him is reduced to Rs. 12,000/-
33. In view of my above finding, the total compensation payable to the claimant comes to Rs. 9,00/- on account of loss of income during his illness. Rs. 99,990/- on account of income due to the injury during his future life, Rs. 1,590/- on account of expenditure of medicines, Rs. 2100/- on account of expenditure on dies and Rs. 12,000/- on account of mental and physical pain suffered by him. The total amount comes to Rs. 1,24,590/- and after deducting 50% of this amount on account of the negligence of the claimant himself the amount payable comes to Rs. 62,295. The award of the learned Tribunal is altered to this extent that the amount payable is Rs. 62,295.
34. The appeal is accordingly dismissed and the cross-objections are party allowed.