M. K. SHAH, D. H. SHUKLA, J. ( 1 ) THESE two appeal arise out of the same incident viz. the accident which happened on 23rd July 1972 at about 9-30 p. m. on Highway No. 8 between Kaira and Nadiad near village Ratanpur. . . . . . . . . ( 2 ) WITH regard to the injuries from the evidence of two Doctors viz. Dr. P. R. Thakore Neuro Surgeon attached to the Civil Hospital Ahmedabad Ex. 36 (part) and Dr. M. T. Mehta Orthopedic Surgeon Civil Hospital Ahmedabad EX 36 (Part) it emerges that he was treated at the Civil Hospital from 24-7-1972 to 5-10-1972 that is for two months and 11 days He was unconscious when Dr. Thakore examined him on 24 and was bleeding from left nostril and had swelling on the left eye. Apart from putting him on antibiotics he was put on antiepileptic treatment till he was discharged and he was advised physio therapy and also to continue antiepileptic treatment. tn the opinion of the doctor because of the head injury there was possibility of increased liability to epilepsy. He had the weakness of left side of body (Hemiplegia) and though it had improved to some extent yet clumsiness of finger movements was likely to persist. He was unconscious for three days. ( 3 ) AS per the evidence of Dr. Mehta when he examined him on 24 he found that there was fracture of shaft of femur right side a head injury and there was probably colles fracture. He had a black discolouration of eye. As per the certificate issued by this witness which is at Ex. 37 the patient had injury with hemiplegia on left side colles fracture on right side and a fracture of shaft of femur on the right side. On the basis of these three ailments he assessed the permanent disability at 45%. He was operated and nailing of shaft of femur was done. He could not say whether there was any shortening of the log but he added that probably he had shortening by half an inch and the patient will have probably some difficulty in riding vehicles and difficulty in walking climbing a staircase and running. He was operated and nailing of shaft of femur was done. He could not say whether there was any shortening of the log but he added that probably he had shortening by half an inch and the patient will have probably some difficulty in riding vehicles and difficulty in walking climbing a staircase and running. ( 4 ) AS Kharawala says after the accident he was taken to the Kaira Civil Hospital but as the injuries were very serious he was removed to the Civil Hospital at Ahmedabad where he was admitted in a special room. His right arm was put in plaster. His right leg was operated and nail was inserted therein and his injuries on the head were dressed. He was kept in the airconditioned room because of the head injury. Even after the discharge he was required to undergo exercise and electric shock treatment and he had to attend everyday the Physio Therapy department of the Civil Hospital upto 5-2-1974 He also took treatment in the private nursing home of Dr. K. G. Mehta for about three months and as he says his right leg has been shortened by half an inch and he gets pain in winter. He gets pain in walking and he cannot run. He has got prepared special shoes for his legs and because of the fracture to his right arm he gets pain. His left hand cannot hold anything therein. He cannot even button his shirt by his left hand and he cannot drive the scooter. He often gets head ache because of his head injury and he is unable to read and write because while reading he gets headache. ( 5 ) ON the basis of the nature and extent of the injuries the prolonged treatment as also the nature of the treatment the pain and suffering undergone by the claimant after the accident for quite a long time as also looking to the nature and extent of the permanent disability which the orthopaedic surgeon assesses at 45% in our opinion the amount of Rs. 10 0 awarded as compensation is inadequate and requires to be raised. One can imagine the pain and suffering this patient must have undergone with fracture of shaft femur on right side as also colles fracture and with hemiplegia. 10 0 awarded as compensation is inadequate and requires to be raised. One can imagine the pain and suffering this patient must have undergone with fracture of shaft femur on right side as also colles fracture and with hemiplegia. His mental condition also can be visualised from the fact that right from the beginning till he was discharged he was put under antiepileptic treatment and he was asked to continue that treatment even after discharge. He was operated for his injuries His treatment of physiotherapy continued for about 15 months and he has still handicaps and disabilities as are referred to by him in his evidence as also by doctor Mr. Mehta in his evidence. In our opinion Rs. 15000. 00 would be reasonable amount awardable on the count of pain shock and suffering and loss of amenities and enjoyment of life. He will therefore be entitled to an additional amount of Rs. 5000. 00 on the first count. [his Lordship further awarded additional amount of Rs. 4 0 as medical expenses. His Lordship further observed: ]. . . . . . . . . . . . . . . . . . . . . . . ( 6 ) THAT would take us to the last item. Mr. Oza the learned Advocate appearing for the claimant has not seriously challenged the figure of income fixed by the Tribunal at Rs. 500. 00. But the Tribunal only awarded loss of six months income on the ground that in the business his three uncles and father were also partners and the business might not have suffered a substantial loss because the claimant could not attend to the same for some period that he was under the treatment. The Tribunal therefore assessed the loss at Rs. 251. 00 per month for six months. In our opinion the Tribunal was patently in error in estimating the economic loss. The Tribunal has not taken into consideration the future economic loss at all inspite of the fact that as the medical evidence showed the claimant has 45% disability of a permanent nature. As the evidence showed because of the after effect of hemiplegia and the fractures he would not be able to drive the scooter. The Tribunal has not taken into consideration the future economic loss at all inspite of the fact that as the medical evidence showed the claimant has 45% disability of a permanent nature. As the evidence showed because of the after effect of hemiplegia and the fractures he would not be able to drive the scooter. The new business which was started was exclusively attended by him and he could attend to the business because he himself was going on the scooter to get the cloth for printing purpose and to deliver the same to the customers after getting the same printed. With the disability which he has he cannot attend to this business and the business had to be closed. It is true in a systematic and scientific manner precise evidence needed in such a case showing as to what was the business or avocation which the claimant was pursuing at the time of the accident; what was the nature of business or avocation or profession and what was the nature and extent of disability and what was the extent of the impact of that disability in the future earning capacity of the claimant has not been properly brought on record. But the evidence does show that physical integrity of the claimant is broken. He has got increased chances of epilepsy. Not only antiepileptic treatment was given to him while he was in the hospital but he was advised to continue this treatment even after his discharge. He had hemiplegia and he is still suffering from the after effect of the hemiplegia. He had also fractures. Now hemiplegia and increased susceptibility to epilepsy are the direct result of the head injury. It is evident from the fact that at the time when he was admitted in the Civil Hospital he was bleeding from the left nostril. He had a fracture of shaft of femur of the left leg as also colles fracture. Because of the head injury he had to be kept in an air conditioned room for one month. It is difficult to follow as to how a person carrying such handicaps and disabilities would not be handicapped in the labour market or in the business world. He would not be the same man as be was before after the accident. Because of the head injury he had to be kept in an air conditioned room for one month. It is difficult to follow as to how a person carrying such handicaps and disabilities would not be handicapped in the labour market or in the business world. He would not be the same man as be was before after the accident. His efficiency to run the business to take decisions and to act on the spur of moment is bound to be affected and that in turn is bound to be reflected in his earning capacity. It is true this may not necessarily be coextensive with the percentage of a disability as assessed by the expert viz. 45%. But this is bound to reflect on his capacity to attend to any business or avocation. It would be interesting to note that the orthopaedic surgeon while assessing the percentage has not taken into consideration a very important factor viz. increased susceptibility to epilepsy as also the fact that he was put under the antiepileptic treatment right from the very beginning and that he was advised to continue the said treatment when he was discharged on 5-10-1972 from the Civil Hospital. An epileptic suffers from many disabilities as are enumerated by Arnold Mann in `the Medical Assessment of Injuries for Legal purposes 1966 Edition. They are: (1) As the epileptic fits occur suddenly often without any preceding aura the epileptic is very prone to sustaining injuries. He may fall over and sustain lacerations or even fractures he cannot engage in hazardous occupations such as building construction; (1) he may fall into a fire; and he cannot hold a motor car drivers licence; (2) He suffers from many social and psychological disadvantages as the condition is still viewed by the majority of the public with a certain degree of horror. An epileptic is at a distinct disadvantage when it comes to matrimony and the securing of responsible jobs. The fact that he has epilepsy frequently undermines his confidence and he may suffer from psychological disturbances as the result of this. The precise disability suffered by an individual patient depends largely on the frequency of the attacks and whether they are controllable by medical means. Where control is perfect disability is very slight but nonetheless hazardous occupations and motor car driving are denied him. This may very seriously affect his ability to earn a livelihood. The precise disability suffered by an individual patient depends largely on the frequency of the attacks and whether they are controllable by medical means. Where control is perfect disability is very slight but nonetheless hazardous occupations and motor car driving are denied him. This may very seriously affect his ability to earn a livelihood. It is true when the accident happened he was engaged in the business where his family members were partners and that way inspite of the handicaps to may not necessarily suffer so far as earnings are concerned for sometime. But that would be till his relations with the other members of the family remain cordial which may deteriorate at any time in future. There is no guarantee that he would remain in the same business. Again we also have to look to the future prospects of this young man on the threshold of his career. Here is a man who started the new business though as a sister concern of the joint family business on his own responsibility to attend to the business exclusively and was in fact attending to the same. He was therefore a man with initiative ideal and push and was bound to progress in life. But because of the handicaps he will be at a disadvantage and is therefore bound to suffer so far as his earning capacity is concerned. In our opinion it would be reasonable to assess the economic loss on the basis of 25% adopting the finding that his income was Rs. 500/_ as found by the learned Judge of the Tribunal. He was a young man of 24 years and therefore the proper multiplier would be 15. Working out on that basis taking the economic loss on the footing of 25% the loss of earning capacity will come to Rs. 125. 00 x 12=1500x 15= 22 500 while what is awarded to him is Rs. 1500. 00. He would thus be entitled to an additional amount of Rs. 21 0 on this count. The total amount to which he will be entitled additionally would therefore come to Rs. 30 0 ( 7 ) THAT will take us to the next appeal viz. appeal No. 1454 of 1975 Rangwala. As deposed by Dr. 1500. 00. He would thus be entitled to an additional amount of Rs. 21 0 on this count. The total amount to which he will be entitled additionally would therefore come to Rs. 30 0 ( 7 ) THAT will take us to the next appeal viz. appeal No. 1454 of 1975 Rangwala. As deposed by Dr. M. T. Mehta in his evidence he had examined Rangwala on 24-7-1972 at the Civil Hospital and he found (1) fracture midshaft right femur; (2) compound comminuted fracture tibia and fibula on right side; (3) fracture shaft humerus on left side and (4) fracture collis left side. Apart from the treatment given by drugs and intravenous fluid his lower limb was put in traction. Upper limb fractures were reduced and were also put in plaster. He was discharged from the hospital on 10-10-1972. In August 1972 he was operated and nailing was done on the shaft femur and the rest of the lower limb was put under plaster. After his discharge from the hospital he took treatment for about three months in the private nursing home of Dr. Mehta where he was operated twice and at the time when he was discharged from the nursing home his limb was put in plaster. On 15-10-1972 an operation was performed by which removal of loose piece of bone and cleaning up was done. On October 29 1972 intramedullary nailing of tibia was done and even after discharge from the nursing home he used to come for regular treatment and was still under the treatment of the doctor when he gave evidence which was on 12-3-1974. As the certificate Ex. 39 issued by Dr. Mehta shows his permanent disability is assessed at 55%. As deposed to by the witness he has equinus deformity of the ankle shortening of the leg stiffness of the knee and some stiffness of the hip. He has also weakness of grip and slight stiffness of the shoulder and he will limp while walking. Climbing a stair case would be difficult and in the opinion of the doctor he would not be able to drive scooter nor will he be able to run. . . . . . . . . . . . . . . . . . . . . . ( 8 ) TAKING up the first count viz. Climbing a stair case would be difficult and in the opinion of the doctor he would not be able to drive scooter nor will he be able to run. . . . . . . . . . . . . . . . . . . . . . ( 8 ) TAKING up the first count viz. pain shock and suffering the learned Judge of the Tribunal it seems when he awarded a sum of Rs. 12 3 or this count was guided by the fact that the nail which was inserted when the said operation was done had to be removed because the fractured injury had become septic and in the opinion of the Tribunal the prolonged treatment in the private nursing home of Dr. Mehta was due to either negligence of the doctor treating him or of himself and if any injury had become septic torfeasor cannot be saddled with the extra cost of such treatment. In our opinion the learned Judge of the Tribunal was clearly in error in this approach. In the first instance the inference of the learned Judge is not based on any material on record and the Tribunal has indulged in the process of imagination and assumption without any data in this conclusion The view of the Tribunal that when a wound at the seat of the fracture becomes septic it must be the result of neligence of the medical treatment or negligence of the patient is without any foundation. In such a case it is not open to the tortfeasor to say that prolonged treatment was unnecessary that in a normal course it would not have been resorted to if the injury had not become septic and that the injury must have become septic either because of the negligence of the doctor or because of the negligence of the patient and therefore the tortfeasor is not liable for any expenses incurred for such prolonged treatment. The settled law is that tortfeasor will be liable for the consequence of his act if it was foreseeable that as a result of the wrongful act given consequence would follow. Mow in the instant case when such fractures and injuries are caused in a motor accident likelihood of infection is one of the probabilities and it cannot be said that it is not the direct result of the tortfeasors wrongful act. Mow in the instant case when such fractures and injuries are caused in a motor accident likelihood of infection is one of the probabilities and it cannot be said that it is not the direct result of the tortfeasors wrongful act. In the absence of novus actus interveniens tortfeasor must always continue to be liable for all the consequences which result from an injury wrongfully caused by him. ( 9 ) MR. Oza the learned Advocate appearing for the appellants drew our attention to the case of Robinson v. The Post Office and Another (1974) 2 All England Law Reports 737 This was a case in which the plaintiff who slipped while descending the ladder from one of the postoffices tower wagon and sustained a wound to his left shin visited his doctor who gave him injection of antitetanus serum (ATS) on 21-2-1968 that is the day on which the accident happened. He got reaction on 24-2-1968 and was admitted to the hospital when he was found to be suffering from encephalitis and suffered brain damage in consequence of encephalitis. He brought action both against the post office as well as against the doctor and it was held that the post office was exclusively liable and not the doctor. The facts of the case disclose that the plaintiff had to the knowledge of the doctor been given a dose of ATS following an accident in 1955 Where a patient had a previous dose of ATS it was essential because of the risk of reaction to give a test dose before administering a full dose. The recognised test procedure in 1968 entailed waiting half an hour after injecting a small quantity of ATS to see whether the patient showed any reaction. The doctor did not follow that procedure but followed one of his own waiting only a minute for a reaction before administering the balance of the full dose and the result was as aforesaid. The recognised test procedure in 1968 entailed waiting half an hour after injecting a small quantity of ATS to see whether the patient showed any reaction. The doctor did not follow that procedure but followed one of his own waiting only a minute for a reaction before administering the balance of the full dose and the result was as aforesaid. Following the well recognised principle applicable in such cases the appeal court held that : The post office was bound to take the plaintiff as they found him i. e. with an allergy to a second does of ATS and if it was foreseeable that as a result of the wrongful act he might require medical treatment they were in the absence of a novus actus interveniens liable for the consequences of the treatment applied even though they could not have reasonably foreseen those consequences or that they could be serious. ( 10 ) THE ratio of this case applies to the case at hand a fortiori particularly when in the instant case no attempt has been made by the opponents to show that infection developed on account of any negligence or want of care by the said doctor who was treating the claimant and the observations would therefore apply with fuller force in the instant case. As Dr. Arnod Mann observes in his aforesaid book on Medical Assessment of Injuries at page 172 :"infection of a fracture can occur if the fracture is open (compound) or if surgical treatment is undertaken for its treatment. In either case the fracture Site is opened to invasion by microorganisms. Any organisms normally found in the atmosphere or in road dust may gain entrance to the body in this way common ones being Streptococci and Staphylococci. Contamination of the wound in compound fractures is of course almost inevitable but infection of the fracture site is not deemed to have taken place until there is some clinical evidence of it. When this occurs the wound edges become red and pus sooner or later discharges from the wound which then remains open often revealing the fracture. When this state of affairs has arisen great delay in union is frequently seen with the destruction of areas of bone due to osteo myelitis. Operations such as bone grafting to stimulate union cannot usually be undertaken under these circumstances and frequently lead to further delays in treatment". When this state of affairs has arisen great delay in union is frequently seen with the destruction of areas of bone due to osteo myelitis. Operations such as bone grafting to stimulate union cannot usually be undertaken under these circumstances and frequently lead to further delays in treatment". This therefore shows that the learned Judge constituting the Tribunal was patently in error in assuming that prolonged treatment in the private nursing home of Dr. Mehta was necessitated due to either negligence of the doctor or of the claimant himself. Taking this aspect into consideration in our opinion on the count of pain shock and suffering as also 103 of amenities and enjoyment of life the claimant would be entitled to the amount of Rs. 15 3 as claimed and the additional sum therefore of Rs. 3 9 will have to be awarded on this count. [ For medical expense the Honble Lordship further awarded the amount of Rs. 7000. 00]. ( 11 ) THAT will take us to the last item with regard to the economic loss. As the claimant deposes after 1966 he started his own business in the name of I. G. Dyechem and he was earning Rs. 1100. 00 per month But he has not produced any books of account or any documentary evidence in support of his say that his earnings were Rs. 110. 00 per month. The Tribunal therefore assessed his earning at Rs. 300. 00 per month. We will therefore proceed on the basis that he was earning Rs 300 per month and in this background we have to assess the extent of the loss of earning capacity by virtue of his disability. The Tribunal has awarded a sum of Rs. 1 800 on the basis of loss of income for six months at the rate of Rs. 300. 00 per month as aforesaid. The Tribunal has awarded a sum of Rs. 1 800 on the basis of loss of income for six months at the rate of Rs. 300. 00 per month as aforesaid. Curiously enough the Tribunal has lost sight of the settled law that in such cases the Tribunal has to assess the extent of loss of earning capacity and then evaluate the economic loss so far as future earnings are concerned; while in the instant case the Tribunal only applied its mind to the question with regard to the special damages to which the claimant would be entitled by virtue of his disability to attend to the business and follow his avocation and the Tribunal fixed this loss of income at Rs. 1800. 00 on the basis that the claimant was entitled to such loss on the basis of his earnings at the rate of Rs. 300/- per month for a period of six months. The evidence on record establishes that the claimant had a permanent disability which was assessed at 55% as per the evidence of Dr. Mehta supported by his medical certificate Ex. 39. The evidence also shows that there was shortening of left leg by 2 and he had additional permanent defect of equinus deformity of the ankle stiffness of the knee stiffness of the hip and weakness of grip and slight stiffness of the shoulder. As the doctor says the patient will limp while walking and will experience difficulty in climbing staircase and would not be able to drive scooter nor will he be able to run. These are all permanent defects. As the claimant himself says in his evidence he has still pain in his left arm and is not able to lift anything by it. He is not able to do any work properly by that arm. While walking his right leg gets swelling. He has got special shoes prepared. He cannot sit bending his legs and he finds difficulty in sitting while answering call of nature. Consequently he had to close down his business which involved the work of moving on a scooter for taking orders and collecting dues. Now these disabilities have to be evaluated to find out the reduction in his earning capacity in terms of money. He cannot sit bending his legs and he finds difficulty in sitting while answering call of nature. Consequently he had to close down his business which involved the work of moving on a scooter for taking orders and collecting dues. Now these disabilities have to be evaluated to find out the reduction in his earning capacity in terms of money. It is true future loss of income is not necessarily coextensive with the extent of permanent disability and on the basis of the evidence as to the permanent disability whether complete or partial assessment has to be made with regard to the fact that such disability would be affecting the entire functioning of the body to a certain extent and it has to be ascertained how it would consequently affect his earning capacity. The process of reasoning to be followed while assessing the same is: (1) Has the accident saddled the claimant with any defects disabilities or handicaps temporary or permanent total or partial ? (2) What is the nature and the extent (including precise percentage if ascertained) of such disablement? (3) What would have been the expected yearly earnings of the deceased had he not met with the accident? (4) Will the said disablement affect the earning capacity of the claimant in future ? (5) If so what is the extent that is percen tage of reduction in the said earning capacity of the claimant as reflected by the said disablement and (6) What is the multiplier to be adopted to assess the said expected loss of earning Adopting this process of reasoning in our opinion the claimant in this case has been saddled with the defects disabilities and handicaps as earlier enumerated the percentage whereof is assessed by the orthopaedic surgeon at 55%. In view of the finding of the Tribunal which is net challenged in this appeal we have to take the expected yearly earnings of the claimant had he not met with the accident at Rs. In view of the finding of the Tribunal which is net challenged in this appeal we have to take the expected yearly earnings of the claimant had he not met with the accident at Rs. 3 600 His bodily integrity has been affected and consequently he will not be able to word with the same efficiency and concentration and will not be able to put in the same efforts which he was putting in to attending to his business or whatever avocation he might pursue in future; and in our opinion taking into consideration all these factors the percentage of reduction in earning capacity as impacted by the said disabilities should be taken at 33 1/3% and taking into consideration his age which was 32 and other relevant factors proper multiplier in the case to be adopted to assess the expected loss of future earnings should be taken at Rs. Calculating on that basis the loss of future earnings will come to Rs 3600 x 1/3 = 1200 x 15= Rs. 18 0 He would be entitled to this amount as and by way of loss of future earnings by virtue of reduction in the earning capacity. over and above the amount of Rs. 1800 already awarded as special damages for the loss of past earnings. The additional amount which he will be entitled on this count will thus be Rs. 18 0 So far as the amount of Rs. 1800-/ which is awarded on account of loss of earnings as special damages is concerned though the claimant would have been entitled for damages for a larger period the Tribunal has restricted the period to six months on the assumption that the injury became septic on account of negligence either of the doctor treating the claimant or the claimant himself. This is no warrant for such an assumption as earlier observed. However we do not enter into the question whether the claimant will be entitled to additional amount on this count in view of the error committed by the Tribunal in this assumption because the claimant does not claim more on this Count. The claimant will thus be entitled to an aggregate amount of Rs. 28 0 as additional compensation. Both the appeals allowed. .