JUDGMENT
S.C. Mohapatra, J.
1. This is an owner’s appeal under Section 110-D of the Motor Vehicles Act, 1939 (in short ‘the Act’).
2. In this appeal it is not in dispute that on the 14th July, 1976 at about 8.30 a.m. the bus bearing No. ORO 4420 at the appellant was coming from Khurda side towards Nayagarh side. At that time the injured-claimant was coming from the opposite direction negotiating a down gradient. There was accident resulting in the injuries on the claimant.
3. The claimant filed an application under Section 110-A of the Act for compensation of Rs. 70,000/- on account of the pecuniary loss sustained by him as a result of the accident. He distributed the claim of compensation as follows:
(i) Compensation for mental shock and physical pain; Rs. 6,000/-
(ii) Expenses incurred in treatment, special food,
doctor's fees, cost of medicine, wages of the
attendant and other miscellaneous expenses
connected with the treatment : Rs. 3,000/-
(iii) Future probable expenses as such : Rs. 3,000/-
(iv) Compensation for loss of longevity
and pleasure of life : Rs. 8,000/-
and
(v) Compensation for loss of income for at least 20
years after giving discount on various uncer-
tainties and lump sum payment Rs. 50,000/-
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Rs. 70,000/-
4. The owner has disputed the negligence as well as the compensation claimed. It specifically alleged that the accident was invited by the injured for which he is squarely responsible. Some documents were exhibited to prove the injury and the medical treatment undergone by the claimant. The claimant examined four witnesses in support of his claim and the owner examined three witnesses while disputing the claim.
5. In order to receive compensation in a case of motor vehicle accident, the negligence in driving the vehicle which caused the accident is to be proved. The claim for compensation being a branch of the Law of Torts the principle of contributory negligence is also applicable.
5A. The evidence of D.W. 2, the cleaner and D.W. 3, the conductor is that they saw the injured on the cycle negotiating the down gradient being imbalanced from a distance of about 20 to 30 cubits. The driver D.W. 1, however, while accepting to have seen the injured on the cycle from a distance of 20 to 25 cubits noticed his imbalanced riding from a distance of 4 to 5 cubits only. The driver of a heavy vehicle is to be alert to take care of other traffic. The conductor or cleaner regularly travel in the bus and their assessment of behaviour of the traffic cannot be said to be wrong. The driver in his evidence stated that the speed of the vehicle was such that on application of the brake it would instantaneously halt. It was, thus, the duty of the driver to anticipate the result of imbalance to the cyclist. Lack of normal anticipation amounts to negligence in this case. A greater care was necessary when admittedly there was a motor cycle proceeding in front of the bus, since in the event of collision of the cyclist with the motor cycle, the moving bus would not make another accident.
6. The injured was negotiating a down gradient. His over confidence to cross the heavy vehicle and a motor cycle specially while negotiating a down gradient is one of the contributions to the accident. When the injured saw a motor cycle and a heavy vehicle like the bus coming from the opposite direction he should have been very careful and finding himself 144 Accident & Compensation Cases 1987 imbalanced should have got down from the cycle from a distance. Instead of becoming careful, he decided to exercise his fundamental right of freedom of movement on the road and tried to cross the vehicle. I have no hesitation to conclude that the injured claimant contributed on account of his negligence as a result of which he dashed against the rear side of the bus sustaining injuries. The Tribunal has assessed the contribution of negligence of the injured at 50%. I have also the concurrence to such a finding.
7. The injured has claimed compensation both on account of pecuniary loss and non-pecuniary loss. Non-pecuniary loss is also called special damage. Claim for compensation towards pecuniary loss consists of expenses at the time of treatment of the injuries, loss of income during that period and future loss of income resulting from the injuries. The claim for non-pecuniary losses includes mental shock and pain and loss of longevity of life. The expenses at the time of treatment include purchase of medicines, payment to attendant and other ancillary expenses. The claimant was treated in a Government hospital. Normally on account of Government policy there is free treatment in a Government hospital. However, it is well known that a patient in the hospital is to spend some amount towards the attendance, food and other miscellaneous expenses and at times for purchase of medicines since a patient cannot continue the physical pain with tolerance till the red tape is opened at the convenience and wish of the authority. He has also no power to eradicate the red taps behaviour. While recommendation for liberalisation of the financial rule in this regard has the effect of misuse, absence of vigilances by the authorities, if not as a duty, on humantarian point of view cannot at all be appreciated. In such a prevailing situation and in the absence of specific cogent evidence on the actual expenses incurred, is can be assessed reasonably at Rs. 500/-.
8. The claim for loss of income consists of two parts. One part relates to the period of treatment and the other part relates to future loss. For assessing the compensation in this regard, the income of the injured is to be determined. The injured claims to be a mason earning Rs. 10/- per day. Witnesses examined by him have no special knowledge about the fact. The sole testimony of the claimant is not acceptable. There is also no acceptable evidence about the rate at which the masons in that area were paid. In the circumstances, I shall have to make a guess work and conclude that the injured was a daily unskilled labourer. For normal unskilled physical labour the daily wages at Rs. 5/- in rural areas to which the injured belongs can be guessed to be the rate. He lost his earning for about four months on account of plaster. A daily wage of Rs. 5/- would bring the monthly income to be Rs. 150/- and for four months his loss would be about Rs. 600/-, which he is entitled to receive as compensation.
9. The claim for compensation for loss of future income for twenty years is to be assessed at the same rate. The annual income being Rs. 1800/- mathematically calculated the total amount for twenty years would come to Rs. 36,000/-. The claimant is entitled to this amount as compensation.
10. Expenses incurred by the claimant for treatment during the period between the filing of the claim petition and giving evidence have not been proved. When the claimant has not proved any expenditure for treatment between 1976 to 1981, it can be concluded that there is no probability of any future treatment. Accordingly the claim to that extent is rejected.
11. It can safely be presumed that an accident causes mental pain and shock. Apart front the physical pain, the apprehension of being a crippled person is always there causing mental pain and shock. The injured has claimed Rs. 6,000/- as compensation on this count. It is a special damage. A special damage is to be specifically proved. Not a word has been breathed in the evidence about the mental pain. Mental pain and shock being natural in a case of an accident, for causing fracture compensation can be awarded. In the absence of any specific evidence to that extent, a nominal sum of Rs. 500/- as compensation would be reasonable.
12. There is no evidence in support of compensation for loss of longevity and pleasure of life and future probable expanses. In the absence of evidence I cannot assume such loss. Accordingly, the claims on that score are rejected.
13. The compensation payable in this case is thus calculated as follows:
(a) Compensation for mental shock and physical pain Rs. 500/-
(b) Expenses incurred for treatment etc. Rs. 500/-
(c) Future probable medical expenses Nil.
(d) Loss of longevity and pleasure of life; and Nil.
(e) Loss of income
(i) during treatment Rs. 600/-
(ii) future Rs. 36,000/- Rs. 36,600/-
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Rs. 37,600/-
50% out of it is to be deducted towards contributory negligence and the claimant is entitled to Rs. 18,800/-.
14. My determination is corroborated by a letter written by the learned Counsel of the injured before the Tribunal to the appellant offering to settle the claim finally on payment of Rs. 8,000/- within a particular date. This letter was not filed before the Tribunal and was filed in this Court as additional evidence. Although the petition for accepting the document as additional evidence was filed on 15-4-1986 the same has not been disputed and no explanation has been given as to under what circumstances such a letter was written. Mr. B. P. Ray, the learned Counsel for the respondent relied upon the legal position to submit that the said letter should not be accepted as additional evidence since the opposite-party-appellant having opportunity to produce before the Tribunal had failed to produce the same and in this Court at a belated stage it was produced. It some explanation would have been given about the background of such a letter or in case the genuineness of the letter would have been challenged, the submission would have been given importance. When the genuineness of the letter is not challenged and the letter has been written by the lawyer, I can legitimately infer that on instruction from the injured-claimant and after giving him proper advice such a letter has been written. Both in the Tribunal and in appeal, just compensation is to be determined. When an experienced counsel has assessed the compensation to be Rs. 8,000/-, if early payment is made, giving some premium to early payment, the amount can be said to be the reasonable compensation. Since there was no specific evidence, the amount must have been mentioned as a reasonable guess-work giving up the loss of income during treatment, expenses during the period of treatment and the special damages. Knowledge of contribution to the accident is also to be presumed. Thus, my determination is corroborated by this letter and the same can be accepted as additional evidence.
15. In most of the cases a percentage is deducted on account of the benefit of lump sum payment and uncertainties. The amount of compensation in this case being grossly low, I propose not to deduct any amount from the total amount of compensation to be paid. Deduction is not a statutory mandate. It is only a part of determination of just compensation which in just cases can be ignored.
16. So far as interest payable to the claimant under Section 110CC of the Act, the Tribunal awarded 6% interest if the compensation of Rs. 22,180/- would have been paid within three months and directed interest at 9% thereon to be paid in case of default. There was no order for stay of realisation of the amount by this Court. There is no material to show that the steps have been taken by the claimant for realisation of the amount. Now that the claimant is entitled to compensation to the extent of Rs. 18,800/-, I direct to make the payment of compensation within two months from today. In case the awarded compensation is paid within two months it shall carry interest at the rate of 6% from the date of application till the date of payment. In case of default, the entire compensation amount shall carry interest at the rate of 9% from the date of application till the date of realisation or deposit of the amount with the Tribunal, who is to take steps on the application of the claimant for realisation of the amount. Such deposit if made, shall be deemed to be payment in this case.
17. In the result, the appeal is allowed in part. There shall, however, be no order for costs.