JUDGMENT
1. This judgment shall dispose of F.A.O. Nos. 395 and 830 of 1986. The former has been filed by Inderjit Singh owner and driver of the tempo No. CHW 4257 which was the offending vehicle while the latter has been filed by Mr. Tejinder Singh Gujral Advocate who sustained injuries in the accident. Both these appeals are directed against the award dated 15th March, 1986 made by the learned Motor Accident Claims Tribunal, Chandigarh (for short the Tribunal) deciding a claim application under S. 110-A of the Motor Vehicles Act, 1939(for short the Act) filed by Mr. Tejinder Singh Gujral. Reference to the parties in this judgment shall be made from F.A.O. No. 830 of 1986.
2. The appellant suffered injuries in a road accident which took place on 6-8-1984 at 9.30 p.m. He was driving scooter No. CHR 6 in Chandigarh and was coming from Sector 33 via Labour Chowk to Sector 7. Near the traffic lights of the crossing of Sectors 22 and 21 he gave horn, used dipper and slowed down his scooter but when he was near the divider tempo No. CHW 4257 owned and being driven by respondent No. 1 came from the side of Sector 20 at a fast speed The said tempo took a sharp turn, hit the divider and then struck against the scooter of the appellant. As a result, the appellant fell down from his scooter which was also damaged. One Kesar who was coming a little distance behind chased the tempo and stopped it. In the same tempo the appellant in an injured condition was taken to the P.G.I. The appellant filed the claim application under S. 110-A of the Act before the learned Tribunal wherein he alleged that the accident had taken place, due to rash and negligent driving of the tempo by respondent No. 1. The damage caused to the scooter was to the tune of Rs. 1,000/- . The appellant himself sustained multiple injuries and also fracture of his ribs. He has become permanently disabled due to injuries. He spent Rs. 8,000/on his treatment up to the date of filing of the application i.e. 23-11-1984. He further alleged that he had been advised further operations to avoid the fear of paralysis. These operations would be done at Jaslok Hospital, Bombay which would involve. expenditure of Rs. 80000/- . He claimed compensation of Rs. 5,00,000/- including the damages for mental agony, pain and suffering and loss of income. In the application as originally filed the damages claimed were to the tune of Rs. 1,00,000/- only. The application was, however, amended with the leave of the learned Tribunal in January, 1986 and the claim for damages was raised to Rs. 5,00,000/- .
3. In his written statement respondent No. 1 alleged that he was bringing the tempo at a normal speed. In order to avoid the accident he took the tempo to the side of the divider and hit against it. Thereafter the tempo hit the scooter of the appellant. He alleged that the chum made by the appellant was excessive. The Insurance Company-respondent No. 2 also filed its reply to the claim application. It denied its liability, inter alia, on the ground that there is no valid document such as a copy of the Insurance Policy. The claim made in the application was styled as vague and incomplete in material particulars not disclosing any cause of action against respondent No. 2. The claim was also labelled as highly exaggerated arid inflated. The averments in the application that the offending vehicle was insured with respondent No. 2 at the time of accident was admitted but respondent No. 2 denied its liability.
4. On the pleadings of the parties, the learned Tribunal framed the following issues :–
l. Whether the accident took place due to/because of rash and negligent driving by respondent No. 1?
2. If issue No. 1 is proved to what amount if any is the petitioner entitled as compensation and from whom?
3. Relief.
5. Issue No. 1 was decided in favour of the appellant. It was held that respondent No. 1 had caused the accident by rash and negligent driving of the offending vehicle i.e. tempo No. CHW 4257. Under issue No. 2 after a detailed discussion of the evidence on the record the learned Tribunal awarded compensation under the following heads :
(i) damages on account of medical agony, shock, pain and suffering of the appellant. = Rs. 50,000,00
(ii) damages on account of hospitalisation including medicines. = Rs. 20,000,00
(iii) damages on account of loss of income. = Rs. 1,12,000,00
(iv) damages on account of the damage caused to the scooter. = Rs. 1,000,00:
Total : Rs. 1,83,000,00
6. Thus an award of Rs. 1,83,000/- was made by the learned Tribunal in favour of the appellant with proportionate costs and interest at the rate of 12 per cent per annum from the date of the claim application till realisation of the amount so awarded. The liability of respondent No. 2 Insurance Company was, however, limited to Rs. 1,50,000/- besides interest due on that amount. For the remaining liability the owner and the driver of the offending vehicle respondent No. 1 was held liable.
7. In F.A.O. No. 395 of 1986 respondent No. l questioned the limit imposed. on the Liability of the Insurance Company respondent No. 2. It has been urged therein that the Insurance Company respondent No. 2 should be held liable for the entire amount of damages. The quantum of damages was, however not challenged in this appeal. The aid appeal was, therefore, admitted only qua respondent No. 2 and was dismissed qua the appellant.
8. F.A.O. No. 830 of 1986 filed by the appellant makes a grievance about inadequacy of the compensation awarded by the learned Tribunal. It is urged therein that in view of the grievous injuries and permanent disability caused to the appellant and continuous pain and suffering which he is undergoing and repeated hospitalization and operations to remove the defects caused in his body as a result of the accident he should have been awarded full amount of compensation claimed by him i.e. Rs. 5,00,000/- . During the pendency of this appeal respondent No. 2 filed C.M. No. 5875/C. II of 1986 accompanied by Cross-objection No. 88-CII of 1986 with a prayer that respondent No. 2 should be permitted to take over the defence of the case in the name of the insured/owner i.e. respondent No. 1 and be permitted to defend and prosecute the appeal/Cross-objections. This application as also the Cross-objections were dismissed by me vide my order dated December, 18, 1986. I held, inter alia; that respondent No. 2 had never approached the learned Tribunal when the matter was pending trial before it for taking over the defence on behalf of and in the name of respondent No. 1 and in the appeal filed by the claimant, respondent No. 2 could not be allowed to file Cross-objection to dispute the liability fixed as also the quantum of compensation awarded through the award under appeal. Respondent No. 2 being not satisfied filed Letters Patent Appeal No. 4 of 1987 against my aforesaid order which was dismissed by the Division Bench vide judgment dated 19th May, 1987**. Similar I Cross-objection No. 54-C-II of 1986, C.M. I No. 3510-C-II of 1986 and CM No. 3285-C-II of 1986 filed by respondent No. 2 in F.A.O. No. 395 of 1986 which were ordered to be heard with the main case by S.S. Sodhi, J. vide order dated July 21, 1986 are to meet the same fate and are accordingly dismissed.
9. C.M. No. 6181-C-II of 1986 was filed by the appellant under O. 41, R. 27 read with S. 151 of the Code of Civil Procedure for placing on record a medical certificate. It was averted therein that the appellant was under the treatment of Dr. Hardas Singh Sandhu of Siri Guru Teg Bahadur Hospital/Medical College Amritsar. He was operated upon on 23-8-1986 and his cervical rib on the left upper limb was excised His examination showed marked weakness of the muscles supplied by C8-T1 nerves (almost 80 per cent functional loss in these muscles). After the operation he had been running temperature, developed periarthritis of shoulder which subsided with treatment. He was still not completely recovered and continued to be under the treatment of Dr. Sandhu. A notice of this application was given by me to the respondents vide my order dated 15-12-1986 and this C.M. was directed to be heard with the main case. No reply to this application has been filed by the respondents.
10. I shall first proceed to decide F.A.O. No. 395 of 1986 filed by respondent No. 1. In fact the contention raised by respondent No. 1 therein finds authoritative support from the judgment dated 19th May, 1987 of the Division Bench in Letters Patent Appeal No. 4 of 1987 : (reported in (1987) 92 Pun LR 155). I shall do no better than to reproduce the following observations therefrom:–
“In the context of the request for adducing additional evidence in the form of the insurance policy, it deserves highlighting that in the written statement filed on behalf of the Insurance Company, neither a stand had beat taken that in the policy of insurance its liability qua the insured was limited to a certain amount nor it had been averred that it had reserved a right in the policy to take all such defences as were available to the insured. It had also not duly proved and placed the copy of the Insurance policy on the record of the Tribunal.
Further, it also raised no plea before the Tribunal regarding it having reserved any such right in the insurance policy.
The Tribunal held that the driver of the offending vehicle was negligent and awarded the given amount of compensation to the claimant. While fixing the liability to pay the quantum of compensation in question to the claimant, the Tribunal made a reference to the policy of insurance and ordered that the Insurance Company would be Gable to pay only a sum of Rs 1,50,000/- and not more.
The Insurance Company did not file any application before the learned single Judge along with the cross-objection seeking permission to place on the record a copy of the insurance policy by way of additional evidence. It is only before the Division Bench that it is for the first time it has thought of making such a request. If this document is necessary to be placed on the record by way of additional evidence then it is too late for the Insurance Company to think of doing so. The document had been all along with it, whether in its own possession or for instance on the record of the Tribunal as unexhibited document. No case has been made as to why such application could not be moved before the learned single Judge and earlier before the Tribunal. If on the other hand the Insurance Company was satisfied merely with the placing of this document on the record of the Tribunal in the manner it has been done then the present application is superfluous. In either eventuality this application has to be dismissed and we, therefore, disallow the request and dismiss C.M. No. 925-CII of 1986.”
11. It has been held by a Division Bench of this Court in Ajit Singh v. Sham Lal, AIR 1984 Punj and Har 223 that where the statutory provision in the Act merely indicates the requirement about the policy and does not prohibit covering of greater risk by the insurer, it is the policy of the insurance company which could show the extent of the risk that the insurer had sought to cover. Where the insurance company for whatever reasons failed to bring on the record the policy of insurance it cannot be heard to say that it had agreed to indemnify the insured only to the extent indicated in the statutory provision in question. The insurance company having failed to prove on record the insurance policy was held Gable to indemnify the insured in regard to the entire amount awarded against the insured.
12. It would merely be a repetition of the observations of the Division Bench in Letters Patent Appeal No. 4 of 1987 : (reported in (1987) 92 Pun LR 155) but still it bears mention that respondent No. 2 did not prove on the record the insurance policy by which the offending vehicle was insured nor did it establish on the record its terms and conditions or the extent of its liability. Therefore following the view taken in Ajit Singh’s case (AIR 1984 Punj & Har 223)(supra), I hold that respondent No. 2 is liable to indemnify respondent No. 1 in regard to the entire amount awarded by the learned Tribunal through the award under appeal or which may be awarded by me while deciding F.A.O. No. 830 of 1986.
13. Now I take up the claim made by the appellant in F.A.O. No. 830 of 1986 for enhancement of compensation awarded to him by the learned Tribunal through the award under appeal. The appellant himself appeared in the witness-box as P. W. 7 in support of his claim. He stated that when the offending tempo struck against him he fell down on the right side and received multiple injuries. He became unconscious. He was removed to the P.G.I. where at about 2 a.m. he regained consciousness and was X-rayed. He had suffered fracture of ribs 3 to 7 on the right side. He was bleeding from the right side of his head, right eye, right arm, chest. and also from knee. For purposes of treatment he has visited P.G.I. more than 40 times. He also went to General Hospital, Sector 16, where he has been getting treatment from Dr. Gurdarshan Singh, Head of the Department of Orthopedics. He visited General Hospital more than 30 times. In between he was also being attended to by Dr. Gurnam Singh, Senior Medical Officer, Punjab Raj Bhawan, Dispensary, who had been alternatively visiting his place for bandages etc. Throughout this period he underwent great stress and pain and could not move from the bed. His statement was recorded on 20th September, 1985 i.e. more than a year after the accident. He stated that he was still under the treatment of the P.G.I. He was being given traction, diathermy, and U. S. massage. The doctors advised operation immediately if the pain did not subside. He was also advised rich diet on which he had been spending Rs. 20/- per day and this diet is still continuing. During this period his wife, who is working as Valuation Officer, Education Department, remained on leave for 31/2 months to attend on him. Thereafter his mother attended on him. He has engaged one servant also for all this period to look after him at a monthly salary of Rs. 400/- . He also gave an elaborate detail of the expenses incurred by him on medicines, medical treatment, hospitalisation and travelling. He further stated that he has engaged a driver whom he is paying Rs. 700/- per month as salary. He deposed that he is a permanent member of Chandigarh Lake Club and used to play Tennis and do swimming and boating but now he is unable to engage himself in any of these sports. He is having severe pain in his left arm, chest and left shoulder. He cannot sit more than 15 to 20 minutes at a stretch. He also gave a detail of his professional income during the year preceding the date of the accident and the medically reduced income which he earned from the profession during the assessment year in which the accident took place and the subsequent year: He stated that for t he last one y ear he has not been able to do his work and is still not attending the Courts as he used to do earlier. Due to the eye injury the power number of his spects has gone from +2 to +5. He gets severe headache and his memory has also been affected. During his continued treatment he is taking pain killer medicine. He takes calmpose and other tranquilliser. On 21-6-1985, he went to Amritsar. There he had a severe attack of discprolapse and visited Civil Hospital where he remained for ten days. He consulted Dr. R.S. Bawa arid remained under his treatment up to 9-1-1985. The doctor advised him complete rest, traction, diathermy and U.S. massage. He is getting continuous treatment from P.G.I. On 11-6-1985 he had a chest pain and was removed to the Civil Hospital and thereafter to Kakkar Nursing Home and Hospital; at Amritsar. During all this period he remained under great stress and had been suffering pain. The doctor at Kakkar Hospital again referred him to P.G.I. There is a big scars on his right elbow of the size of 1″x 6”. There arc also scars on his chest of the same dimension. He suffers pain from his arm constantly and there remains numbness in his upper arm, which travels to his little finger and due to this he cannot pick up any weight and cannot drive car or any other vehicle. He proved on the record copy of the report dated 10-8-1984 Exhibit PW 7/1 which he sent to Police Station. Sector 34 photostat copy of this driving licence Exhibit PW 7/3, the Out door Ticket of the P.G.I. Exhibit PW 7/4; photostat copy of the out Patient Ticket of P.G.I. Exhibit PW 7/5; and photostat copy of the Out Door Ticket of Saket Hospital Exhibit PW 7/6. He stated that he had been advised to use collar and he is still continuing its use. He produced Exhibits PW 7/7 the receipt of the Hospital at Amritsar and the bills of his treatment Exhibits PW 7/8 to 35. He stated that the injuries on the ribs and the prolapse are of permanent nature and his suffering therefrom will continue. He has been suffering acute and great pain right’ from the date of the accident. To prove marked decrease in his income he produced certificates of his Income-iax Advocate Exhibits PW 7/36 and 37.
14. Dr. J.K. Bhutani, Registrar Medicines. P.G.I. appeared as PW 1, He stated that on 6-8-1984 he was working as Registrar MD in Emergency Department of P.G.I. The appellant was brought to the Emergency Department at about 10-30/11 P.M. He had examined him. The appellant was crying with pain. He registered him as a patient against C.R. No. 623440. He was also bleeding from knee and chest profusely. He was also bleeding from the eye. He was having pain in his chest, neck and knee. He had advised X-ray of neck, chest and knee of the patient. The X ray of the chest showed fracture of 3rd 5th, 6th and 7th ribs of the right side. There was displacement of cervical spine. This could be the result of a road accident. After seeing the original bed head ticket he proved its photostat copy Exhibit P.1 on the/record. Dr. Gurdarshan Singh, Orthopedic Surgeon, General Hospital, Sector 16, Chandigarh, appeared as PW 2. He stated that the appellant had come to O.P.D. of General Hospital on 8-8-1984 with multiple fracture of ribs and cervical spondylosis. He was advised X-ray of O.A. cervical spine and fracture of 3rd to 7th ribs of right side. He was advised tablets and creams. He was complaining of severe pain. Strapping of ribs on right side was done. Later the appellant visited the Hospital on 31-8-1984 and again on 16-11-1984. 1-2-1985 and 28-2-1985:, He was advised complete bed rest. Because of the injuries the appellant was unlikely to attend to his normal chores and profession. He will always have a sense of insecurity because of these fractures, He Can do routine duties but the cannot do exertion He proved photostat copies of bed head. tickets Exhibits PW 2/1 to 5. In cross-examination Dr. Gurdarshan Singh opined that the shortening of muscles in the case of the appellant would remain permanent the bones being otherwise healed up.
15. Dr. Gurnam Singh; Senior Medical Officer, Punjab Raj Bhawan, Dispensary,. Sector 7, Chandigarh appeared as PW 4. He stated that he had examined the appellant on 10-8-1984. He had an accident on 6-8-1984. He was having serious pain on the right side of his chest and had multiple injuries on his body. He had with him X-ray films of the X-ray got done at P.G.I. Thereafter he examined him on 3-9-1984, 7-9-1984, 10-9-1984, 12-9-1984, 11-3-1985, 13-5-1985 and 15-6-1985. After seeing the original Out Patient Tickets he proved on the record photostat copies of the same Exhibits PW 3/1 to PW 3/9. He opined that the recurring pain which the appellant suffers from, may persist for the whole of his life. because the ribs were not only got fractured but displaced also. Due to the injuries there is no scope for angina but due to pain he may have anxiety which may cause angina. As there were injuries on the body of the soft tissues which can later on be a precipitating factor to the developed fibrofascitis which the appellant already has. As on 15-6-1985 when Dr. Gurnam Singh last examined the appellant he stated that he found he above problem with the appellant so he referred him to the P.G.I. The running or driving the car for a long time may cause him pain precipitating it further. He may, however, sit for long time without any problem.
16. Dr. Raghbir Singh Bawa, Orthopedic Surgeon; Orthopedics Nursing Home, Amritsar, appeared as PW 5. He stated that the appellant consulted him on 30th June, 1985 at Amritsar. He was having acute pain in the neck, radiating into the whole of the upper limb with neurological deficit in the left upper limb. The appellant told him that the pain started due to an accident which he had about a year earlier. His neck pain was due to the accident because it started immediately thereafter. He had no such problem prior to that. The appellant remained under this treatment for about a month or so. He was advised compete bed rest, diathermy, cervical collar and other medicines were prescribed to him. He could not get any relief from pain so he was advised operation. He also took the appellant to other consultant Dr. Hardial Singh, Head of the Orthopedics Department who advised him the same operation. During has stay at Amritsar the appellant had acute chest pain so he was taken to the Government Hospital and from there to Kakkar Hospital where he remained admitted for a week for chest problem The operation recommended was of very serious nature as he is to b~ operated upon the neck. Even after operation this neurological deficit may remain. After operation be cured or he may not cure. As the time passes the chances of recovery become less and less. He may be cured altogether but there are chances that he may not be cured. Dr. Bawa was examined before the learned Tribunal on 20th September, 1985. He stated that at that time the chances of success of an operation on the appellant were not more than 50 per cent. He has got pain in the left side of the neck, radiating into the left upper limb. He has also weakness in the grip of the left hand. He has got sensidullness in his left little finger and the ulnar border of the left hand and left forearm. If he sits more than 15/20 minutes he starts having severe pain. The pain is likely to become permanent but for the result of operation. The gripping power is 30 to 40 pa cent and this defect is permanent. The appellant should not drive the car or any other vehicle. The witness had seen the X-ray produced by the appellant and examined him also. The injuries or fracture of the ribs were clear from the X-rays. The X-ray showed the fracture of five ribs which are now united in mal position and as a result of that, he is having pain in the right side of the chest also. He also gave details. of the expenses for his hospitalization at Amritsar. He proved on the record the follow up card Exhibit PW 5/1 issued from Ram Saran Dass Kishori Lal. Charitable Trust, Kakkar Hospital. He also proved photostat copy Exhibit PW 5/2 of the Out Patient Ticket of the unit of Dr. Hardas Singh Exhibit P.W. 5/3 was proved as being the photostat copy of the ticket issued by Bawa Hospital for bone and joint surgery. In cross-examination he stated that he made a statement from memory. As the record was not summoned from him So he did not bring the record. He, however, opined that the problem from which the appellant suffers cans occur even due to some strain or exciting factor or any other type of trauma to the neck.
17. Here it would be relevant to note that vide C.M. No. 6181-CII of 1986 the appellant has sought permission to produce on the record as additional evidence a certificate issued by Dr. Hardas Singh, Professor and Head of Department of Orthopedics, Medical College, Amritsar This certificate is dated 9-12-1986, and has been issued vide despatch No. 217/Prof. and Head/Ortho. No reply to this application was filed. In fact the genuineness of the certificate was riot questioned before me I, therefore, allow this C.M. and bring on record the said certificate as Exhibit HCA/ 1. A perusal of this certificate shows. that the appellant was admitted in Medical College and Hospital, Amritsar with diagnosis of cervical ribs on 22-8-1986 under the care of Dr. Hardas Singh Sandhu. He was operated upon on 23-8-1986 and the cervical rib was excised. The operation became necessary as the appellant was complaining. of pain in the left upper limb which according to him had started after some accident. This shows that even after more than two years from the date of the accident the appellant is still suffering pain and agony and undergoing repeated medical treatment including orthopedics operation of his affected limbs.
18. Rattan Lal PW 6 deposed that he has been working as a driver with the appellant for 9/10 months at a salary of Rs. 700/- per month.
19. Most of the above overwhelming medical evidence as to the state of the appellant and the pain and suffering which he is undergoing was not seriously challenged in cross-examination. Now in this perspective I am required to determine whether the compensation awarded by the learned Tribunal can in any way be said to be inadequate. Damages on account of hospitalization including medicines have been I a warded to the tune of Rs. 20,000/- . In spite, of the fact that complete detail of hospitalization has been given, the detailed vouchers evidencing the expenses incurred on the same have not been produced and proved on the record. Learned counsel for the appellant contended by seeking support from Bharat Premjibhai v. Municipal Corporation, Ahmedabad, 1979 Acc CJ 264 : (AIR 1978 Guj 196) that when there is ample evidence to establish that the injured remained under prolonged treatment it is not necessary to maintain account of expenditure incurred That is no doubt so but it becomes really difficult for the Court to make a reasonable assessment of the expenditure incurred particularly when what has been awarded by the learned Tribunal on this account is complained against to be inadequate and its enhancement is asked for. I am of the considered view that in the given circumstances there is no scope for enhancement of quantum of damages under this head in the absence of conclusive evidence on the record to support the claim for enhancement. I, therefore, uphold the quantum of damages of Rs. 20,000/- awarded by the learned Tribunal to the appellant on account of hospitalization including medicines.
20. The damages on account of the damage caused to the scooter determined at Rs. 1,000/- by the learned Tribunal are what the appellant had in fact claimed The same is, therefore, upheld.
21. As regards the damages on account of loss of income the learned counsel for the appellant tried to persuade me by reference to the certificates of income on the record Exhibits PW 7/36, PW 7/37 and PW 7/38. He contended that the loss of professional income to the appellant as a result of the accident is much more than that on the basis of which these damages have been computed. However, on going through the evidence I find that the damages assessed by the learned Tribunal under this Head are quite reasonable and therefore, deserve to be upheld.
22. The learned Tribunal has award Rs. 50,000/- as damages on account of mental agony, shock, pain and suffering to the appellant. Learned counsel for the appellant vehemently argued that this amount of damages is grossly inadequate. He relied on Dr. K.K. Goyal v. Union of India, F.A.O. No. 425 of 1978 decided on 10th October, 1984 and Punjab State v. Kashmira Singh F.A.O. No. 585 of 1984 decided on 9-5-1985. In both these cases damages under this Head were awarded to the tune of Rs. 1,00,000/- . As against this Mr. L.M. Suri, learned counsel for respondent No. 2 placed reliance on Raghbir Singh v. Harbans Kaur, 1985 Acc CJ 676(Punj & Har) where in the case of a Professor general damages under this Head were awarded at Rs. 50,000/- ; Dilip Keshav Rao Bhonsale v. Harbir Singh, 1985 Acc CJ 784(Punj & Har) where in the case of a Captain in the Army damages under this Head were awarded at Rs. 5,000/- ; Gursharan Singh Sandhu v. State of Haryana, 1985 Acc G 641(Punj & Har) where in the case of an Engineer damages under this Head were awarded at Rs. 10,000/- ; Chander Kumar Pahwa v. State of Haryana, 1985 Acc CJ 500(Punj & Har); where of course damages under this Head were awarded at Rs. 1,00,000/- ; lqbal Singh v. Sohan Singh, 1984 Acc CJ 12 : (AIR 1984 Punj & Har 20) where damages under this Head were awarded at Rs. 10,000/- ; Oriental Fire & General Insurance Co. Ltd. v. M.C. Shashidhara, 1984 Ace CJ 622(Kant) where damages under this Head were awarded at Rs. 16,000/- and Ranjish Chopra v. Ran Singh (1986),1 Acc CJ 481(Punj & Har) where damages under this Head were awarded at Rs. 25,000/- .
23. After going through the above judgments and considering the different aspects of the peculiar nature of cases involved therein I am of the firm view that no particular case can be taken as a guide for determination of general damages on account of pain and suffering caused as a result of accident in another case. It depends on the nature of the injuries caused, subsisting agony, shock, pain and suffering and its duration. In the present case no doubt no particular limb of the appellant has been amputated but he has suffered injuries on the very sensitive parts of his body. 5 ribs on the left side of his chest were fractured. Despite their placement and restoration by operation the medical opinion is that there is a mal adjustment in them. Likewise on the back of his neck the cervical spine has suffered serious damage. Despite repeated operations performed traction, diathermy and other healing treatment, the pain which he suffers from continues to subsist: Amputation of limb may lead to deformity and incapacity to a particular extent but the patient no longer suffers from continuous pain. It would, therefore, be wrong to conclude that continuous agony, shock, and pain which the appellant suffers is less in magnitude than amputation of a limb. As per the medical opinion brought, on the record the pain and suffering due to mal adjustment of ribs and cervical spine shall subsist with the appellant and last with his life. The appellant is a Lawyer by profession. This profession needs unhampered concentration for full devotion to the cases he might handle. When bodily pain and suffering subsist and there is even danger of such pain resulting in attack of angina it certainly amounts to a great incapacity in performance of his, professional duties by the appellant. The agony and suffering on this account which will last with his life is difficult to measure in terms of money but I am decidedly of the view that damages to the tune of Rs. 50,000/- as awarded by the learned Tribunal under this Head are grossly inadequate. Keeping in view all the facts and circumstances brought on the record I shall assess damages under this Head at Rs. 1,00,000/- .
24. Learned counsel for the appellant contended before me that the learned Tribunal has not awarded any damages on account of expenditure being incurred by the appellant continuously on the attendance on him by the members of his family and the servant whom he has engaged for the purpose. Learned counsel for respondent No. 2 on the other hand submitted that there is no credible evidence on the record that the appellant is incurring any expenditure on such an attendance on him. In my view the appellant was entitled to damages on this account. It is in evidence that his wife remained on long leave to attend on him after the accident during the course of his hospitalization and convalescence at home. Later on according to him his mother has been attending on him. He has also engaged a servant at Rs. 400/- per month to attend on him. In Cunningham v. Harrison, 1974 Acc CJ 218, Lord Denning M.R. inter alia, observed thus :–
“It seems to me that when a husband is grievously injured and is entitled to damages then it is only right and just that, if his wife renders service to him, instead of a nurse, he should recover compensation for the value of the services that his wife has rendered It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer…..but she has rendered services necessitated by the wrong doing, and should be compensated for it. If she had given up paid work to look after him, be would clearly have been entitled to recover on her behalf, because the family income would have dropped by so much…..Even though she had not been doing paid work but only domestic duties in the house, nevertheless all extra attendance on him certainly calls far compensation.”
Thus the attendance on the appellant by his wife and later by his mother and the engagement of a servant for continued attendance on him decidedly require to be compensated. Although the claim made is that the servant has been engaged by the appellant to attend on him at a salary of Rs. 400/- per month, I feel over all damages under this Head for the attendance on him by his wife, his mother and the servant should be at Rs. 300/- per month for a period of 16 years which when computed would work out to Rs. 57,600/- . Taking into account the enhancement of compensation directed by me under the aforesaid two Heads the appellant is held entitled to compensation amounting to Rs 2,90.600/- .
25. As a result of the above discussion I allow F.A.O. No. 395 of 1986 and hold that for the entire amount of compensation awarded in favour of the appellant. Insurance Company respondent. No. 2 shall be liable to make payment so ac to indemnify the insured person respondent No. 1. I also partly allow. F.A.O. No. 830 of 1986 and hold that the appellant is entitled to recover compensation amounting to Rs. 2,90,600/- from respondent Nos. 1 and 2 whose liability is held to be joint and several. Since, however, the offending vehicle was insured with respondent No. 2, it shall be liable to make payment of the entire amount of compensation. The appellant shall also be entitled to recover interest at the rate of 12 per cent per annum on the amount of compensation from the date of the filing of the claim application till the date of realisation of the amount so awarded The appellant shall also be entitled to costs which I assess at Rs. 1,000/- and which he shall be entitled to recover jointly and severally from respondents Nos. 1 and 2. There shall, however, be no order as to costs in F.A.O. No. 395 of 1986.
26. Order accordingly.