GENERAL MANAGER, KSRTC v. KWAJA HUSSAIN SHAIKSAB — 1978 DIGILAW 102 (KAR)

SABHAHIT, J. ( 1 ) THIS appeal is instituted under Sec. HOD of the Motor Vehicles Act, 1939, by original respondent No. 1, the General Manager, Karnataka State road Transport Corporation, Bangalore, and is directed against the judgment and award dated 30-1-1976 passed in Mis. (MVC) NO. 54 of 72 by the Motor Accidents Claims Tribunal, Dharwar. ( 2 ) THE original petitionerkwaja Hussain Shaiksab Bellaryhas filed cross objections raising the plea 'that the Tribunal was not justified in deducting Rs. 7,000, he received as exgratia payment from ESSO Company and has further submitted that the loss of future income calculated by the Tribunal is unreasonably low. ( 3 ) THE facts leading up to the present appeal and cross-objections are these: kwaja Hussain Shaiksab Bellary instituted an, application for compensation under Sec. 110a of the Motor Vehicles Act, 1939, for the personal injuries sustained by him as a result of the Motor accident that occurred on 25-3-1973 on Gadag-Hubli Road, 5 miles away from Hubli. According to him he was driving the tanker belonging to the ESSO Company from gadag towards Hubli when the driver of a K. S. R. T. C. bus coming from Hubli in a rash and negligent manner came on the off side of the road and dashed against his tanker causing him grievous injuries. He has averred in %e petition that he suffered fracture of the chest bone, fracture of the right shoulder, fracture of skull, fracture of right forearm and injury to the left eye. On these averments he has claimed Rs. 25,000 from respondents as compensation. The respondent No. 1 was the General Manager, k. S. R. T. C. and respondent No. 2 was the driver of the K. S. R. T. C. bus in question. Respondent No. 1 resisted the claim by filing statement of objections on 25-11-1972. He denied that the concerned K. S. R. T. C. bus was driven by respondent NO. 2 in a rash and negligent manner. He denied that the accident was the result of rash and negligent driving of the K. S. R. T. C bus driver. He alternatively affirmed that the earning mentioned by the petitioner was not correct and that the compensation claimed by him was excessive and exaggerated. Respondent No. 2 was subsequently given up as unnecessary party. He denied that the accident was the result of rash and negligent driving of the K. S. R. T. C bus driver. He alternatively affirmed that the earning mentioned by the petitioner was not correct and that the compensation claimed by him was excessive and exaggerated. Respondent No. 2 was subsequently given up as unnecessary party. On these pleadings, the Tribunal raised the following issues: (1) Does the petitioner prove that he sustained injuries as a result of the accident that happened on 25-3-1972 on Gadag Hubli road, 5 miles away from Hubli? (2) Does he further prove that the said accident was due to the rash and negligent driving of the K. S. R. T. C. bus bearing No 5057 as alleged? (3) Whether the respondent proves that the petitioner is guilty of contributory negligence in causing the accident in question? (4) To what compensation if any and from whom is petitioner entitled? (5) Does respondent prove that he is not liable to pay the compensation for the reasons in para 4 of the statement of his objection? (6) Does the respondent further prove that the application is not tenable for the reasons stated in para 12 of his statement of objections? (7) What award? ( 4 ) DURING hearing, the petitioner examined four witnesses including himself. PW. 1 is the petitioner. PW. 3 Abinajar Bansod is an eye witness he was travelling in the ESSO tanker. PW. 2 Gosavi Vaman Dattatreya is the Deputy Superintendent of the ESSO Coy who has spoken to the salary of the petitioner. PW. 4 Srini'vasa Bidi is the Asst Surgeon attached to the KMC. Hospital, Hubli, who examined the injured He has issued the injury certificate Ext. P2. Against that respondent-1 examined two witnesses on his behalf. DW. 1 Abdul Rahaman Hebballi is a motor mechanic who claims to be the eye witness to the accident DW 2 Raghavendra venkatarao Koulagi is the photographer who has taken the photos of the KSRTC bus after the accident. ( 5 ) THE Tribunal after assessing the evidence on record found that the accident was the result of rash and negligent driving of the KSRTC bus and that the injuries suffered by the petitioner were directly due to it It rejected all other contentions raised by the contesting respondent and fixed the earning capacity of the claimant at Rs. ( 5 ) THE Tribunal after assessing the evidence on record found that the accident was the result of rash and negligent driving of the KSRTC bus and that the injuries suffered by the petitioner were directly due to it It rejected all other contentions raised by the contesting respondent and fixed the earning capacity of the claimant at Rs. 100 and holding the monthly loss of income at Rs. 40 came to the conclusion that the loss of future income would be Rs. 12,000 and making allowance for lumpsum payment it was reduced to Rs. 9,600. The Tribunal awarded Rs. 6,000 as general damages and Rs. 200 as special damages for trea-ment and medical expenses. From out of this amount, however, the Tribunal deducted Rs. 7,000 which was received by the petitioner from the employer, the ESSO Coy, and in that view the Tribunal awarded Rs. 8,800 together with, interest thereon at 6 per cent per annum from the date of the award till the date of payment with costs to the petitioner by its order and award d/30-1-76. The appeal and cross objections are directed against the said award. ( 6 ) THE learned Counsel for the appellant vehemently urged that the tribunal was not justified in holding that the accident was the result of rash and negligent conduct on the part of the driver of the KSRTC bus according to him, the general damages awarded were unduly high. As agsinst this, the learned Counsel appearing for the cross-objector, submitted that the Tribunal erred in deducting Rs. 7,000 from out of the damages awarded. He further submitted that the Tribunal was not correct in fixing the loss of income of the injured-claimant at Rs. 100 p. m. ( 7 ) THE points therefore that arise for our consideration in this proceeding are : (1) Whether the Tribunal is justified in holding that the accident in question was the I result of rash and negligent driving of the KSRTC bus? (2) Whether the Tribunal erred in fixing the monthly income of the petitioner at Rs. 100 and in awarding pecuniary loss on that basis. (3) Whether the Tribunal was justified in deducting Rs. 7,000 from the award made in favour of the injured-claimant? (4) Whether the general damages awarded at Rs. 6,000 are just and proper ? (2) Whether the Tribunal erred in fixing the monthly income of the petitioner at Rs. 100 and in awarding pecuniary loss on that basis. (3) Whether the Tribunal was justified in deducting Rs. 7,000 from the award made in favour of the injured-claimant? (4) Whether the general damages awarded at Rs. 6,000 are just and proper ? ( 8 ) IT is the case of the claimant that he was driving the tanker from gadag on his left side with moderate speed. When he was about 5 miles away from Hubli the KSRTC bus driven by its driver in a rash and negligent manner, according to the petitioner, came on the off side of the road and hit the front right side of the tanker as a result of which the driver-petitioner sustained several injuries. In support of his case, petitioner has given his own evidence and in addition he has examined one witness who was travelling in the tanker itself. Both of them have given their evidence in support of the petition averments. As rightly pointed out by the Tribunal there is nothing elicited in their cross-examination to detract from the probative value of the evidence. As against this, the contesting respondent did not examine the driver of the KSRTC bus. He examined one witness as DW. 1 - a mechanic - whose evidence is rightly disbelieved by the Tribunal. It was submitted to us by Sri HFM. Reddy, learned Counsel appearing for the original claimant, that the driver of the KSRTC bus was convicted for rash and negligent driving in the Criminal Court and further that the order of conviction was confirmed by the Appellate Court. In the circumstances, the learned Counsel appearing for KSRTC was unable to point out how the finding of the Tribunal that the accident was the result of rash and negligent driving of the KSRTC bus was not justified, the oral evidence of PWs. 1 and 3 is corroborated by the circumstantial evidence. The KSRTC bus had actually gone into the field and stood. That shows that the driver of the KSRTC bus was unable to control the bus because of its speed. The learned Counsel appearing for the petitioner, however, invited our attention to the photos Exhibits P5 to P8 taken by dw. 2. The KSRTC bus had actually gone into the field and stood. That shows that the driver of the KSRTC bus was unable to control the bus because of its speed. The learned Counsel appearing for the petitioner, however, invited our attention to the photos Exhibits P5 to P8 taken by dw. 2. These photos would not be of any assistance in deciding the issue as these photos were taken after the accident when the KSRTC bus was found in the field. ( 9 ) THEREFORE, we find no good ground to interfere with the finding of the Tribunal that the accident was the result of the rash and negligent driving the KSRTC bus. ( 10 ) NEXT, we would advert to the quantum of general damages awarded in this case. It is in the evidence of PW. 4 Dr. Srinivasa Bidi that as a result of the accident the claimant suffered the following injuries : * * * * the Doctor has stated that injuries, 3, 9, 10, 19 and 21 are grievous and the rest are simple in nature. He has further stated that injury NO. 3 has the effect of corneal ulcer and the injured has developed traumatic cataract, in other-words, there is deprivtion of sight in the left eye. He has also suffered fracture of the right arm. These are not challenged 10a. The petitioner has deposed in his evidence that he has lost the left eye sight and his right arm has become inefficient. General damages are to be awarded for these injuries, in addition to pain and suffering. Having these in mind, the Tribunal has awarded Rs. 6,000 as general damages. It is true that in the case of Madras Motor and General Insc Co Ltd v. G. Murthi, 1975 ACJ. 291 has awarded general damages of Rs. 3,000. In the instant case, in addition to the loss of left eye the injured suffered several other injuries including the fracture in the right arm. In the case of dalip Kaur v. Vanguard Insc Co Ltd. , 1975 ACJ. 90 the High Court of Delhi awarded damages of Rs. 3,900 in the case of a house wife who suffered a fracture of the left arm. In the instant case, the injured has suffered the fracture of the right arm. In addition there are other injuries suffered by the petitioner. 90 the High Court of Delhi awarded damages of Rs. 3,900 in the case of a house wife who suffered a fracture of the left arm. In the instant case, the injured has suffered the fracture of the right arm. In addition there are other injuries suffered by the petitioner. Thus, having regard to these injuries and the pain and suffering of the victim due to the accident we hold that general damages awarded at rs. 6,000 are quite reasonable and proper. We confirm the same. ( 11 ) WE would next advert to the damages awarded towards pecuniary loss incurred by the petitioner, as a result of the accident. He has lost the left eye. He has suffered infirmity in the right arm. Having regard to these, the Tribunal has generally taken his loss of earning capacity at 40 per cent. This cannot be disputed and is not disputed before us. ( 12 ) THE next point that arises for consideration is the earning of the petitioner at the time of accident. The petitioner has stated in his evidence that he was working as a driver under ESSO Coy and that he was earning more than Rs. 300 per month. The Manager of the ESSO coy at Hubli is examined as PW. 2. He has stated in his evidence thus : " On 25-3-72, PW. l Khajahussain was in the service of the ESSO coy at Hubli. He was working as a Heavy vehicle driver. PW. 1 Khajahussain was employed as a casual driver" on the daily wages of rs. 12-50. " relying on this, the learned counsel submitted that the monthly income of the petitioner calculated at Rs. 100 by the Tribunal is grossly inadequate. On the Other hand, the learned counsel for the original respondent No. 1 pointed out that the petitioner was engaged as a casual driver under the esso Company and that he was not in the regular service of the Company even making concession for that it becomes manifest that the income taken at Rs. 100 by the Tribunal is very low. Having regard to the fact that the petitioner was a casual driver and having regard to the fact that he might be doing some other work suited to his capacity when not employed under esso, it would be just and reasonable to fix the monthly income of the petitioner at Rs. 100 by the Tribunal is very low. Having regard to the fact that the petitioner was a casual driver and having regard to the fact that he might be doing some other work suited to his capacity when not employed under esso, it would be just and reasonable to fix the monthly income of the petitioner at Rs. 200 and we accordingly fix it at that rate in modification of the finding of the Tribunal. ( 13 ) THE age of the claimant at the time of accident is taken by the tribunal as 35 years. There is no clinching evidence on this point though the learned counsel for the petitioner tried to press into service that the age of the driver at the time of accident was only 30 years. In the petition his age is mentioned as 30 years; before the doctor he has mentioned the age as 29 years and while giving evidence, the age is mentioned as 28 years. That being so, it is obvious that the petitioner himself was not sure about his age. The best evidence on the point should have been the birth extract or the school leaving certificate. They are not produced by him. In the absence of any clinching evidence we are not inclined to interfere with the finding of the Tribunal that he was 35 years of age at the time of the accident. The Tribunal has taken the life of expectancy at 60 years and has calculated the income on that basis. But, it is obvious that even if the petitioner was working as driver in the ESSO Company he would retire in all probability at 55 years of age. Hence, we are inclined to take the working age of the petitioner upto 55 years. ( 14 ) WE have held above that the loss of earning capacity is at 40%. That being so, the monthly average loss to the petitioner as a result of the accident would be Rs. 80 per month. The annual loss would be Rs. 960. Multiplying this by 20 yearsthe difference between 35 and 55we get the lumpsum of Rs. 19,200. We have to tax it down for the fact that a lumpsum payment is made and also for uncertainties of life; reducing it by 20% we get the figure of Rs. 15,360. That in our opinion represents the proper compensation for pecuniary loss. 960. Multiplying this by 20 yearsthe difference between 35 and 55we get the lumpsum of Rs. 19,200. We have to tax it down for the fact that a lumpsum payment is made and also for uncertainties of life; reducing it by 20% we get the figure of Rs. 15,360. That in our opinion represents the proper compensation for pecuniary loss. We fix it accordingly modifying the quantum of damages awarded by the Tribunal. ( 15 ) THE next point that arises for our consideration iswhether the tribunal was justified in deducting Rs. 7000 which the petitioner received exgratia from his employerthe ESSO Company, on compassionate grounds. PW. 2 in the cross-examination has stated that the ESSO Company has paid him Rs. 7,000 as he was unable to continue as a driver of the company. The learned counsel for the appellant (respondent No. 1) relying on the decision gobald Motor Service Ltd. , v. R. M. K. Veluswami, AIR 1962 SC 1 (3) submitted that any amount that the injured received from any source should be given deduction to while awarding compensation. In the case under reference, the Supreme Court has no doubt observed that while awarding compensation in the case of death, any amount received from any source as a result of death should be given deduction. But the case or an injured is entirely on a different footing. In the instant case the Company has given Rs. 7000 to the ex-employeethe petitioneron compassionate grounds, ex-gratia and as rightly pointed out by the learned counsel for the petitioner such amounts paid by the Company cannot be given deduction, to favour the wrong doers. In support of the proposition made by him he relied upon a decision of the Madras High Court in the case of a. P. Dorairaj V. State of Madras, 1974 ACJ. 174. In that, it is observed that where the injured receives payments or other benefits gratuitously which might be equal to his wages, such payments are not to be taken into consideration in assessing the liability of the wrong doer to recompense the injured regarding loss of wages. That is also the observation made in the case of cunmangham v. Harmon, 1974 ACJ. 218 by the Court of Appeal, England. That is also the observation made in the case of cunmangham v. Harmon, 1974 ACJ. 218 by the Court of Appeal, England. Therein it is observed in a para 9 (b) that any ex gratia payment received by the injured cannot be deducted from the compensation due from the wrong deer. We affirm the proposition with a rider that the position would be diffrent if the claimant received the amount from the employer as of right. . ( 16 ) THAT being so, we did that the Tribunal was not justified in deducting Rs. 7000 from out of the compensation amount due from the wrong doer. Such ex gratia payments given on compassionate grounds to tile petitioner would not enure to the benefit of the wrong doer and we hold that the Tribunal erred in making such deduction. ( 17 ) THE special damages of Rs. 200 awarded towards medical charges were not challenged before us. 18 In the result, therefore, the appeal is dismissed and the cross-objections, are partly allowed. The petitionerclaimant is awarded rs. 21,560 as damages from the original respondentk. S. R. T. C. along with interest thereon at 6 per cent per annum from the date of award till payment and also costs of the proceedings throughout. The respondent-appellant shall bear his own costs. --- *** --- .