Judgment :- The challenge is made to the award of Rs.3,76,000/-., passed by the Motor vehicle Accident Claims Tribunal (Fast Track Court – I) Coimbatore, dated 25.07.2003 as against the claim of Rs.5 lakhs for the injuries sustained by the appellant/claimant in a road traffic accident, said to have been taken place on 08.04.1999. 2. The facts which absolutely necessary for the disposal of this memorandum of civil miscellaneous appeal are recapitulated in brief as follows; 2.1. The first respondent/claim petitioner was working as a labourer in Kumaran metal works, in Kuniamuthur, at Coimbatore at the relevant period. He was earning a sum of Rs.3,500/- per month towards his monthly salary. That on 08.04.1999 at about 08.15p.m., near Vijayalaxmi Mill located at Palakkad Main Road, a bus bearing registration No.TN 37 N 0098, driven by the first respondent had hit against the back of the petitioner when he was pushing the tricycle loaded with metallic materials and subsequently, proceeded further and had fallen into a ditch on the extreme left side of the road and then come to halt, as a result of which, the petitioner had sustained the following injuries; 1.There is degloving injury over Right leg extending the whole leg from knee to ankle and degloving of right heel present. 2.Right Anterrior tibial artery cut at the level of middle third of leg. 3.Sensation absent over the dorsum of right foot, Right Medial melleolar fracture present with dislocation of right ankle, telonavicular joint and right lateral tubercle of calcaneum. 4.Laceration of 5x2 extending transversely over the middle of dorsum of left foot degloving including the little to eith eorsalis pedis artery cut. 5.There is tenderness, swelling over left side chest. Immediately the petitioner was taken to the CMC Hospital to first aid and subsequently admitted in the Ganga Hospital for further treatment. Hence, the petitioner came forward with a claim of Rs.5 lakhs on various heads. 2.2. The first respondent being the driver of the bus did not contest the claim petition as he remained ex parte. The second respondent alone had contested the claim petition on innumerable grounds. Hence, the petitioner came forward with a claim of Rs.5 lakhs on various heads. 2.2. The first respondent being the driver of the bus did not contest the claim petition as he remained ex parte. The second respondent alone had contested the claim petition on innumerable grounds. On appraising the oral and documentary evidences adduced on behalf of both sides, the Motor vehicle Accident Claims Tribunal (Fast Track Court – I) Coimbatore had proceeded to pass an award of Rs.3,76,000/- directing the respondents 1 and 2 to pay the award jointly, and severally with interest at the rate of 9% per annum from the date of claim petition till the date of its realisation. Being aggrieved by the impugned award the second respondent has approached this Court by way of this appeal. 3. Heard both sides. 4. The learned counsel for the appellant/second respondent has based his arguments on the following grounds. 1.The accident was taken place only because of the negligent act of the first respondent/claimant. 2.The Motor Accident Claims Tribunal ought to have come to a conclusion, that the first respondent/claimant had contributed his part of negligence to the accident. 3.The evidence of PW 3 Doctor, ought to have been discarded for the simple reason that he had not treated the first respondent/claimant and that the disability certificate, issued by him ought not to have been relied upon to estimate the disability which is said to have been suffered by the first respondent/claimant. 4.The method of multiplier adopted by the Motor Accidents Claims Tribunal was wrong, which has resulted in the wrong calculation of the quantum of compensation. 5. In so far as the claim petition is concerned the first respondent/claimant had examined himself as PW 1. One Mukandi, who had set the law in motion by lodging a complaint in respect of the occurrence has been examined as PW 2 and besides them one Dr.Harivenkata Ramani, who had examined PW 1 and issued Ex.P9 disability certificate, has been examined as PW 3. On the other hand one Rajendran, who was on duty as conductor at the material time in the bus bearing Registration No. TN 37 N 0098 has been examined as RW 1. The witnesses examined on behalf of both sides i.e., PW 1, PW 2 and RW 1 have spoken to about the accident as well as negligence. On the other hand one Rajendran, who was on duty as conductor at the material time in the bus bearing Registration No. TN 37 N 0098 has been examined as RW 1. The witnesses examined on behalf of both sides i.e., PW 1, PW 2 and RW 1 have spoken to about the accident as well as negligence. It is apparent that the accident was taken place near Vijayalaxmi Mill located at Palakkad Main Road on 08.04.1999 at about 08.15 p.m. It is revealed from the evidence of PW 1 that at the time of occurrence, PW 2 Mukandi was driving the tricycle laden with plastic pots from south towards northern direction i.e., towards Kuniyamutur. Whileso, the second respondent herein, who was on the steering wheel of the bus had driven the same in a rash and negligent manner on the same direction and rammed against the first respondent/claim petitioner and as a result of which both of his legs were crushed and he had also sustained injury over his head. 6. On coming to the evidence of PW 2, he would say that he had witnessed the occurrence and that the second respondent had driven the bus bearing registration No. TN 37 N 0098 and hit against the first respondent/petitioner and after the occurrence he himself had removed the first respondent/petitioner to the hospital and that the second respondent/driver alone was the wrong doer. In his cross-examination he has corroborated with the evidence of PW 1. 7. On the other hand the conductor, who was examined as RW 1 on behalf of the appellant/second respondent, would depose that when the bus was passing Vijayalaxmi Mills, a triwheeler was proceeding in front of the bus i.e., 100ft., away from Vijayalaxmi Mills. He has also deposed that the triwheeler was found heavily loaded and when the driver of the bus had swerved the bus towards left side, the triwheeler had also come to the left side and on account of this, the said accident was taken place. 8. It is obvious to note here that the second respondent herein, who was the driver of the offending vehicle has not been examined on behalf of the appellant/second respondent, to prove the negligence on the part of the first respondent/claimant. 8. It is obvious to note here that the second respondent herein, who was the driver of the offending vehicle has not been examined on behalf of the appellant/second respondent, to prove the negligence on the part of the first respondent/claimant. The learned counsel appearing for the appellant would submit that the occurrence was taken place due to the contributory negligence on the part of both the first respondent as well as the second respondent. 9. This argument could not be countenanced because it appears from the testimonies of PW 1 and 2 and RW 1 that at the time of occurrence, the triwheeler laden with plastic pots was ridden by PW 2. The bus was coming behind the triwheeler, and the driver who was on the steering wheel had swerved the bus towards left side, while PW 2 was swerving his tricycle towards the left side in order to give way to the bus. 10. The second respondent if at all wanted to over take the triwheeler he should have over taken on the right side, as per i.e., the driving code and principle. Instead the driver of the bus was trying to overtake the triwheeler on its left side and in this process, the bus happened to hit against the petitioner from behind which resulted in grievous injuries. Hence as adverted to by the learned counsel for the appellant/second respondent, the issue of contributory negligence does not arise in this case and that the driver of the bus who is the second respondent herein, alone was the reason for the accident. 11. PW 3, Dr.Hari Venkataramani who is working as Plastic, Hand & Micro Surgeon, in Ganga Medical Centre & Hospitals Private Limited; has stated that the first respondent/claimant was treated in their hospital. It is also evident from his testimonies that he had also treated the first respondent/claimant and that totally 10 surgeries were performed over his legs and during the course of surgery skin crafting and muscle crafting were also done. After his examination he had issued a disability certificate under Ex.P9, stating that the petitioner is suffered with disability which is estimated at 45%. Ex. P9 reveals thus; 1. Loss of range of motion of foot and ankle complex – 30%. 2. Loss of stability of ankle joint – 10% 3. Pain and deformity right ankle – 5%. Totally it comes to 45%. 12. Ex. P9 reveals thus; 1. Loss of range of motion of foot and ankle complex – 30%. 2. Loss of stability of ankle joint – 10% 3. Pain and deformity right ankle – 5%. Totally it comes to 45%. 12. In his cross-examination PW 3, has admitted that the disability which is being suffered by the petitioner is partial and permanent. In this connection, the learned counsel appearing for the first respondent/petitioner has submitted that since, the petitioner had sustained fracture over his both legs as detailed in the claim petition and as nearly as 10 surgeries were performed as evident from the testimony of PW 3, Dr.Hari Venkataramani and since he used to drive triwheeler for the purpose of loading and unloading the products of his company, the percentage of disability ought to have been assessed at 100% instead of 45%. This piece of argument does not contain any force because it goes without any supportive documentary evidence, as the first respondent/ claimant has not challenged the award passed by the Tribunal. 13. The medical evidence shows that the first respondent/petitioner has been suffered with only partial and permanent disability that too at 45%. 14. As observed by the Honble Supreme Court in Ramprasad Balmiki vs. Anil Kumar Jain and Ors. reported in 2008(9) SCC 492 . "Sufferance of fracture by itself resulting in shortening of leg to some extent does not come within the purview of the permanent total disablement". 15. Keeping in view of the above circumstances, the contention of the learned counsel for the first respondent/petitioner that the disability suffered by the first respondent/petitioner should have been estimated at 100% instead of 45%, cannot be accepted and hence, it is rejected. 16. It appears that the first respondent/petitioner was aged about 23 years at the time of occurrence. It is claimed that he was earning a sum of Rs.3,500/- per mensum, towards his salary. But it has not been supported by any documentary evidence and therefore, in order to ascertain the quantum of compensation, his monthly salary can be taken into account at Rs.2,500/-. 17. A full bench of this Court headed by his Lordship Honble Mr.Justice A.P.Shah Chief Justice as he then was, has laid down certain guidelines as, how to compute and categorise the pecuniary losses and non-pecuniary losses. 18. 17. A full bench of this Court headed by his Lordship Honble Mr.Justice A.P.Shah Chief Justice as he then was, has laid down certain guidelines as, how to compute and categorise the pecuniary losses and non-pecuniary losses. 18. While penning down the judgment his Lordship Honble Mr.Justice A.P.Shah in Cholan Roadways CorporationLtd., rep. by its Managing Director, Kumbakonam vs. Ahmed Thambi and others reported in 2006 (4) CTC 433 has held that; "the Motor Accident Claims Tribunal should itemize the award under each of head namely Pecuniary Losses and Non-pecuniary Losses. Under the head of Non-Pecuniary Losses Tribunal shall consider - (a) pain and suffering (b) loss of amenity (c) loss of expectation of life, hardship, mental stress, etc., and (d) loss of prospect of marriage. Under the head of Pecuniary Losses, Tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earning if any from date of accident till date of trial. His Lordship has also observed that, when loss of earning capacity is compensated the non-pecuniary losses under (a) to (d), permanent disability need not be separately itemized." 19. This Court has concluded that the first respondent/claimant is entitled to get the compensation under the following manner; under the head of Non-Pecuniary losses, towards (a) pain and suffering=Rs.20,000/- (b) loss of amenity =Rs.15,000/- (c) loss of expectation of life, hardship,mental stress, etc., =Rs.25,000/-Under the head of Pecuniary losses, (a) Prospective loss (45% x 2000)=Rs.90,000/- (b) Medical expenses=Rs.1,30,000/- (c) Extra Nourishment =Rs.10,000/- (d) Loss of earning from 08.04.1999 to 29.07.1999 (4 months) =Rs.10,000/- Totally the petitioner is entitled to get a sum of Rs.3,00,000/- ============= 19. Having regard to the above circumstances, this Court is of the considered view that the first respondent/petitioner is entitled for a sum of Rs.2,80,000/- since, the occurrence was taken place by the negligence of the second respondent/driver of the bus during he course of his employment under the appellant/second respondent. The appellant/second respondent is vicariously liable to pay this amount to the first respondent/petitioner with interest at the rate of 9% from the date of the occurrence till the date of realisation. 20. The appellant/second respondent is vicariously liable to pay this amount to the first respondent/petitioner with interest at the rate of 9% from the date of the occurrence till the date of realisation. 20. This Court at the time of admission of the appeal while granting interim stay in CMP.No.1515 of 2005, has directed the appellant/second respondent to deposit a sum of Rs.2,50,000/- to the credit of MCOP.No.349 of 2000, on the file of Motor Accidents Claims Tribunal (Additional District Judge Fast Track Court-I), Coimbatore. On such deposit the first respondent/claimant was permitted to withdraw a sum of Rs.2,00,000/-and the remaining balance was directed to be invested under fixed deposit in State Bank of India, Coimbatore. Now the award of the Motor Accident Claims Tribunal is reduced to Rs.3,00,000/- from Rs.3,76,000/-. Hence the second respondent is directed to deposit the balance of award amount i.e., Rs.50,000/-with accrued interest at the rate of 9% p.a. to the credit of MCOP.No.349 of 2000 on the file of Motor Accidents Claims Tribunal (Additional District Judge Fast Track Court-I), Coimbatore within a period of one month from the date of receipt of a copy of this judgment and the petitioner is also permitted to withdraw the entire amount. With this observation, the appeal is disposed of.