JUDGMENT
Jagannadha Rao, J.
1. The question for consideration in this appeal is with regard to the compensation payable in respect of fracture of 9 ribs of the appellant in an accident which occured on 24-8-1978. Incidentally, the question also arises whether there was negligence on the part of the respondent’s driver.
2. The appellant claimed a total sum of Rs. 1,50,000/- as damages which included Rs. 25,000/- for loss of earnings on account of the absence of the appellant at his works, Rs. 25,000/- for other items and a sum of Rs. 1,00,000/- (one lakh) as general damages for pain and suffering and other losses due to the injuries.
3. The accident occurred at 2.00 p.m. while the claimant along with his father and his friend, P.W. 3, were proceeding in a diesel jeep from Warangal to Hyderabad. The respondent’s lorry loaded with sand and drivan by R.W. 2 collided with the appellant’s jeep. The appellant’s father died and the appellant was seriously injured. As a result of the accident, nine ribs out of 12, were fractured and it is claimed, the entire physical activity of the appellant came to a stand-still. He could not attend to his works at the site of the contracts or in the lands, in respect of his agriculture. The appellant also suffered severe pain and agony and had to undergo expert treatment at various place at Warangal, Hyderabad and Madras incurring huge expenditure. The respondent denied that there was negligence and also disputed the quantum of damages. The Court below came to the conclusion that negligence was not established and that even if it was established. only a sum of Rs. 15,000/- was payable towards damage to the jeep instead of Rs. 35,000/- as claimed. The claim for Rs. 8,000/- towards loss in agriculture was disallowed and only a sum of Rs. 10,000/- was held to be reasonable towards pain and suffering. He also mentioned that another sum of Rs. 5,000/- was payable towards pain and suffering and Rs. 3,000/- towards loss of contract works. It is now concedes that the lorry is insured only with 4th respondent Insurance Company.
4. Three points arise for consideration :
(1) Whether negligence on the part of the respondent’s driver is established?
(2) What is the amount to be paid as non-pecuniary damages for fracture of nine ribs and other injuries?
(3) What are the pecuniary damages payable for loss of income past and future for the appellant and for the damage to the vehicle?
5. Point No. 1:–On the first point relating to negligence, the judgment of the Tribunal is most unsatisfactory. We have on record Ex. B-3, the sketch of the scene of occurrence in Crime No. 90/78 prepared by the police for purposes of the criminal case against the lorry driver. Even a cursory look at the said sketch would have revealed to the Tribunal that there could not be any better case for applying the principle of res ipsa loquitor. Obviously, the Tribunal did not look into this document. It shows that the appellant’s jeep was proceeding from Hanumakonda to Hyderabad and was totally to the extreme left-side of the road; the sketch discloses that where the appellant’s jeep was proceeding from Hanumakonda to Hyderabad and was to the left-side of the road, the lorry which came from the opposite direction came to its right and hit the jeep and threw the jeep about 10 feet into the fields on the left-side. After hitting the jeep in the above manner, the lorry proceeded further to the right and landed on the left side of the road (right side to the lorry) i.e., it landed on the same side of the jeep. When the point of impact of the jeep and the lorry was thus totally on the wrong side so far as the lorry was concerned, it is unimaginable and unthinkable for me as to how the Tribunal could have come to the conclusion than the negligence of the lorry driver was not made out. The learned counsel for the Insurance Company, Sri S.V.R.S. Somayajulu, after looking into the above sketch, Ex. B-3, fairly stated that the judgment of the Tribunal on this point was totally unsupportable. In view of the above factual position, I accept the oral evidence adduced for the claimant and reject the oral evidence adduced for the respondent and I hold that gross negligence on the part of the lorry driver was made out in the present case. Point No. 1 is held accordingly in favour of the appellant.
6. Point No. 2:–The appellant sustained fracture of nine ribs out of 12 ribs, fracture of collar bone and there was clotting of blood in the lung and thereby the functioning of the lung became permanently but partially impaired. There was also head injury. The size of the chest was reduced and the stamina and strength of the appellant and his movements were thereby curtailed. The appellant was treated by Dr. Subba Rao, Orthopaedic Surgeon, M.G.M. Hospital, Warangal (P.W. 4), Dr. Udheshwarneedu, Cardiac Surgeon, Nizam Orthopaedic Hospital, Hyderabad, Dr. Soloman Victor, Cardiac Specialist, Vijaya Hospital, Madras.
7. The appellant filed Exs. A-10 prescription, Ex. A-11 report of Dr. P. Venkateshwar Rao, Gandhi Hospital, Secunderabad; Ex. A-12 prescription given by Dr. S. Balaparameshwar Rao, Nizam Orthopaedic Hospital, Hyderabad, Ex. A-13 out-patient chit of M.G.M. Hospital, Warangal, Ex. A-14 prescription chit given by P.W. 4, in support of the injuries received by him. He also filed other documents to prove the expenditure incurred by him. Ex. A-18 which is a case-sheet of M.G.M. Hospital, Warangal discloses that the appellant had treatment for multiple injuries including fracture of left clavicle. He also sustained four lacerated injuries on the chin below the lower lip, another two injuries near about and another near the eye. There is abrasion of the shoulder and swelling in the middle of the upper arm and right clavicle. There was a lacerated injury on the left parietal region and tenderness over the right side of the chest. The appellant was an inpatient in the hospital for about 25 days at Warangal. Later, the Doctors at Hyderabad advised him to go in for an operation of the lung for the removal of the clotted blood. Then he consulted another Doctor at Madras, Dr. Victor Soloman who said that the operation was risky. Thereafter, the doctors removed a part of the clotted blood from the lung without operation. At the time of evidence given on 4-11-1980, the appellant was 42 years. The above facts can be gathered from the evidence of the appellant examined as P.W. 1 and P.W. 4 and Ex. A-18. P.W. 4 further stated that there was fracture of the ribs 4 to 10, fracture of the root of the upper tooth and also of the clavicle. There was collection of fluid in the right chest which had to be removed. There was a mal-united fracture of the clavicle and according to P.W. 4, it would cause permanent disability in the functioning of the upper limbs. He also opined that the multiple fractures of the rib would reduce the vital capacity of the right lung on the right side to an extent of 10%. In cross-examination, he stated that the rib bones united but in a wrong position and they would restrict the lung capacity.
8. In the context of the above evidence we had to fix the damages for the non-pecuniary losses viz., pain and suffering and loss of amenities for the past, present and future.
9. The question of awarding reasonable amount of damages for injuries is a difficult one. Instead of awarding ad hoc amounts in each case, it would be better if certain principles are laid down so that arbitrariness can be checked and some uniformity can be achieved in the awards granted by various tribunals. In order to provide guidance in this regard, I have recently decided cases relating to different types of injuries and tried to refer to (A) the various sub-heads or items to be considered in this regard (vide K. Sapna v. B. Appa Rao, 1987 (2) A.L.T. 349. 2. 1987; and (B) the priciple of ‘range’ of awards for different types of injuries (vide P. Satyanarayana v. I.B.R. Prasad, A.L.T. 328; and (C) actually work out the conventional amounts of damages for particular type of injuries, such as loss of both eyes, amputation of leg, shortening of leg, loss (or virtual loss) of hand, loss of teeth etc. I shall briefly review these cases.
(A)
10. In K. Sapna’s case (1 supra), while explaining the broad division of damages into Non-pecuniary and Pecuniary, it was pointed out that non-pecuniary damages are sub-divided as (a) pain and suffering; (b) loss of amenities of life; (c) loss of expectation of life; (d) disfigurement; (e) discomfort and inconvenience while pecuniary damages are sub-divided into (a) loss of earnings upto date of trial and (b) prospective loss of earning; (c) value of perquisites lost including free board and lodging; (d) loss of House-keeping capacity; (e) loss of career; (f) loss of unused earing capacity; (g) expense for medicine, hospital, transport; (h) Nursing services at home; (i) extra or special diet and nourishment; (j) employment of substitute; and (k) damage to property. The position regarding deduction and set-offs arising out of (a) voluntary assistances, (b) contributions to Insurance and (c) Income-tax and (d) Collateral benefits were considered.
(B)
11. In P. Satyanarayana’s case (2 supra) the question of damages for pain and suffering and loss of amenities for unconscious persons and the concept of ‘full-compensation’ was stated. The principle of laying down a range or brackets of awards for different type of injuries was considered. Although there is no fixed and unalterable standard, as pointed by Birekett, J. in Bird v. Cooking & Sons Ltd, 1951 (2) T.L.R. 1260. it is better to have a ‘range or brackets’ and periodically review the same on the basis of inflation. Writ v. British Railways Board, 1983(2) A.C. 723. Classification of Injuries as total wreck cases, multiple injury case and single injury cases etc., has to be and can be made. While stressing the importance of proper pleadings and the meaning of special and general damages, as stated in Rule 533 of the A.P. Motor Vehicles Rules, 1964, it was pointed out that if the total claim is not exceeded, the court can shift the amounts claimed under one sub-head to another sub-head. It was also pointed out further in P. Satyanarayana’s case (2 supra) (at page 322) after referring to Flatcher v. Autocar and Transporters, (1968) 2 Q.B. 322 (CA). that so far as the award for pain, suffering, loss of amenities are concerned there is no distinction between the rich and the poor.
(C)
12. I have, on a comparison of English cases and Indian, tried to lay down a certain range or brackets of damages for different types of injuries. In A.P.S.R.T.C. v. Dayanand Naidu, 1987 (2) A.L.T. 367. I have set out a long list of injuries of different kinds and the range of damages that are being awarded, in England in £s. with a view to impress that awards granted for smaller injuries should not exceed awards for major injuries. It was pointed out that the range of damages in England was being set put only to give a comparison of the awards for different injuries and that it was not meant that the awards in pounds should be converted into rupees.
13. The following is the range or brackets of damages for pain, suffering, loss of amenities and loss of expectation of life-arrived at by me after considering in detail (in separate tabular statements), the awards for each type of injuries by various High Courts in India.
(a) Loss of both eyes and P. Satyanarayana
mental derangement. Rs. 50,000/- v. I.B.R. Prasad
(date of accident: (2 supra) (1987
4-4-1979): (2) A.L.T. 328)
(b) Amputation of leg below Rs. 35,000/- K. Sapna v.
the knee. B. Appa Rao
(supra)
(date of accident: (1987 (2) A.L.T.
24-4-1978) 349.)
(c) Amputation of arm or Rs. 25,000/- A.F.S.R.T.C. v.
virtual loss. Dayanand Naidu
(6 supra) (1987
(date of accident: (2) A.L.T. 367.)
29-9-1977)
(d) Shortening of leg due Rs. 20,000/- Islavath Nama v.
fracture of shaft, right S.A. Rahman,
femur. 1987 (2) A.L.T. 378.)
(date of accident:
26-2-1981):
(e) loss of 4 teeth. Rs. 8,800/- A.P.S.R.T.C. v.
(date of accident: Rajendra Naidu, 1987
29-9-1977): (2) A.L.T. 376)
14. As per the Table regarding cost of living index given in P. Satyanarayana’s case (2 supra), the damages for injuries of later dates have to be increased.
15. Bearing these principles in mind, I shall now consider cases
relating to rib injuries as granted by various High Courts in our country,
chronologically.
S.No
Date of accident.
Decision.
Injury.
Amount awarded.
1.
6-8-1951.
(195-65) ACJ 72 (PH)
3 ribs & pelvis bone fractured
Rs. 5,000/- plus Rs. 250/- medical expenses.
2.
11-9-1963
1971 ACJ 66 (P&H)
Ribs, leg and band fractured.
Rs. 5,000/- plus Rs. 2000/-medical expenses.
3.
6-4-1970
1986 ACJ 307 (P&H)
4 ribs + hip joint.
Rs. 30,000/- plus Rs. 20,000/-
for past and future medical
treatment.
4.
3-10-1970
1977 ACJ 462 (AP)
3 ribs and left upper arm fractured and spleen removed .
Rs. 4,000/- plus Rs. 1,000/- for medical expenses.
5.
12-4-1971
1979 ACJ 304 (Cal )
Ribs, neck, humerous, right
clavicle fractured, (hospitalised 14 months).
Rs. 20,000/- plus expenses 4,000/-.
6.
5-3-1972
1986 ACJ 591 (P&H)
9 ribs.
Rs. 10,000/-.
7.
11-7-1976
1984 ACJ 316 (P&H)
ribs, shoulder, hip-joint, right foot, left tibia, and fibula
fractured.
Rs. 1 lakh, (total)
Note :–Only the amount awarded for pain, suffering, lost of amenities or for medical expenses are taken into account.
16. As stated by me in my earlier judgments, there is the lack of uniformity in the decided cases and it is further complicated by the fact that together with rib injuries, there are other injuries, sometimes of a smaller type and sometimes, grave. Having regard to the fact that in the present case, the injuries occurred on 24-8-1978, and the medical evidence already referred and to the permanent disability of shortening of lung power and breathing problem and mal-union of ribs, and the other injuries, I am awarding a sum of Rs. 20. 000/-, especially because 9 ribs were involved. Point No 2 is held accordingly
17. Point No. 3:– This deals with pecuniary damages payable to the appellant personally and for damage to the vehicle. On the facts of this case, they comprise of the medical and transport expenses, and also the pecuniary loss in earnings that he has suffered or may suffer in future, and lastly the damage to, the vehicle.
18. Medical and transport expenses were incurred by the appellant at Warangal, Hyderabad and Madras. Exs. A-1 to A. 9 are some of the bills or vouchers relating to the medical expenses. It is true that the bills for the entire amount of Rs. 5,000/- are not available. As pointed in K. Sapna v. B. Apparao (1) (at p. 361), “our High Courts have accepted that medical expenses or related expenditure can be compensated for, even though the claimant is not able to file bills or vouchers either fully or partly, provided there is other acceptable evidence of the reasonable expenditure that must have been incurred”. Having regard to the evidence of P.Ws. 1 and 4 and the trips the appellant had to make to Hyderabad and Madras, I am of the view that for medical and transport and incidental expenses, a sum of Rs. 5,000/- is to be awarded.
19. Nextly, on the question of pecuniary loss in the income. We have on record that the appellant was a partner in a partnership firm doing contracts business and that he withdrew from the business after the accident. The appellant as P.W. 1 said his investment was Rs. 50,000/-. He also stated that he is not able to supervise his agriculture effectively because of the breathing problem which has arisen due to diminished lung capacity and mal-union of the ribs. Except this, we do not have any details of the partnership income or extent of agriculture. It is true that we do not have more particulars to compute the alleged losses accurately but, at the same time, it cannot be said that the appellant is physically the same in all respects as he was before the accident. The breathing problem does curb his activity and confidence to a large extent. It is partial but is a permanent disability. No doubt, P.W. 4 stated that the disability is 10% but having regard to the fact that he cannot be compared to a normal healthy man after the accident, I roughly estimate his monthly pecuniary loss at the low figure of Rs. 100/- or Rs. 1200/- P.A.
20. The accident occurred on 24-8-1978 and the trial took place in November, 1980. As the appellant was alive at the time of trial, there is no need to estimate his loss of income by resorting to mortality rates for the period between the date of accident and the date of trial i.e., 27 months. There is also no need to convert the loss of these 27 months to present value as these are not amounts awardable in the distant future. Hence, the actual loss for 27 months at Rs. 2700/- can be paid without any reduction, as pecuniary loss upto date of trial.
21. So far as future pecuniary loss from date of trial is concerned, one has necessarily to resort to the average mortality in the country inasmuch as the future, after the trial, is in the realm of an estimate based on uncertainties of life. Further, these future payments after trial have to be reduced to their present value,-having regard to future uncertainties (mortality) as also due to accelerated payment. In this context, the acturial multiplier table set out (at page 158) of Bhagwandas v. Mohd Arif, 1987 (2) A.L.T. 137–1987 ACJ 1052–1987 I.J.R. 11.273. has to be applied for the age 42, (at trial).
22. The multiplier for a person aged 40 (at trial) is 12.79 and for
one aged 45 (at trial) is 10.45. For a person aged 42 years (at trial), the
multiplier would be roughly 11.85. The table gives multipliers for those
retiring at 60 years and in cases of those earning beyond 60 years the
multiplier can be increased slightly upto a maximum of 2 Points. Having
regard to the age of the appellant (i.e., 42) at the trial, I take the multiplier
as 12.85. Applying the same to an annual loss of Rs. 1200/-, the present
value of the future pecuniary loss of earnings are computed as Rs. 1200x
12.85–Rs. 15,420/- and are rounded off to Rs. 15, 400/-.
23. Finally, coming to the damage to the vehicle, there is not much of dispute that the sum of Rs. 20,500/- is supported by documentary evidence.
24. In the result, the total compensation payable comes to Rs.20,000/-(for injury) + Rs. 5,000/- (for medical expenses) + Rs.2,700/- (loss of income upto date of trial) + Rs. 15,400/- (future loss of income from date of trial), + Rs.20,500/- (damage to jeep) i.e., Rs. 63,600/-. The said amount shall carry interest at 12% P.A. from 6.11.1978, the date of petition. The appeal is partly allowed against respondents 1 and 4 as stated above. There shall be no order as to costs. The liability of the 4th respondent is restricted to Rs. 50000/-.