Andhra HC (Pre-Telangana)
Vemireddy Bhaskara Reddy vs Boddu Narendra Kumar And Ors. on 25 September, 1996
Equivalent citations: 1996(4)ALT778, 1997 A I H C 2767, (1997) 1 ANDHLD 420 (1996) 4 ANDH LT 778, (1996) 4 ANDH LT 778
JUDGMENT B.K. Somasekhara, J.
1. These two appeals arise out of the award passed by the Motor Vehicle Accidents Claims Tribunal, Krishna at Vijayawada in M.V.O.P. No. 403 of 1989 dated 26-4-19%. C.M.A. No. 975 of 1996 is by the claimant, whereas C.M.A. No. 1151 of 1996 is by the insurer, who is the 3rd respondent in the O.P. The matters being between the same parties involving common questions of law and fact have been heard together and being disposed of by means of this common judgment. The reference to the parties will be in accordance with the seriatim in the O.P. and also in C.M.A. No. 975 of 1996.
2. The claimant, an Advocate aged 26 years at the relevant time, having suffered injuries during the motor vehicle accident, which occurred on 7-5-1989 at about 8.15 a.m. at Padavalarevu bus stop opposite to his house at Vijayawada, and having suffered certain consequences thereof according to him, laid a claim under Section 110-A of the Motor Vehicles Act, 1939 (for short 'the Act') for recovery of the compensation of Rs. 1,54,214/- under various heads as against the 1st respondent, the driver of the vehicle AHH 1932 which involved in the accident, the 2nd respondent, the owner of the vehicle and the 3rd respondent, the insurer. It was resisted only by the 3rd respondent, whereas the 1st and 2nd respondents remained ex parte. Here also only the 3rd respondent insurer has resisted the appeal of the claimant, inasmuch as it filed its own appeal as above. The Tribunal having found that the accident was due to the rash and negligent driving of the vehicle, fixed the age of the claimant at 26 years, his income at Rs. 2,000/- per mensem and awarded Rs. 3,000/- towards extra nourishment, Rs. 3,000/- towards transportation to the Hospital, Rs. 7,604/- towards medical expenses and Rs. 50,000/- towards pain and suffering, continuing disability and loss of earning powers etc., and as a whole the Tribunal awarded Rs. 64,000/- with costs and interest at the rate of 12 per cent per annum from the date of petition till the date of payment. The 3rd respondent as the insurer had raised a defence that as the 1st respondent, the driver of the vehicle did not possess valid driving licence, it is not liable to pay the compensation. This was held in the negative by the Tribunal. Thus the claimant having been aggrieved by the quantum of compensation so much awarded and the 3rd respondent for having been put to the liability to pay the compensation under the award suffering the finding on issue No. 3 in the negative, have come up with the present appeals.
3. The claimant himself being the Advocate argued the matter along with Mr. Govinda Reddy, another learned Advocate and contended that in whatever manner the compensation must be assessed, it is unjustifiably low, particularly when he suffered very serious injuries leading to permanent disability which has affected his Advocate's profession and that the Tribunal in spite of the clear evidence on record has awarded the compensation under the items stated above arbitrarily without due consideration of the admitted and proved facts and also the law operating upon them. Mr. K.L.N. Rao, learned Advocate for the 3rd respondent in his appeal has contended that in spite of the evidence in Exs.B-1 and B-2 showing that the 1st respondent, the driver of the vehicle, himself had pleaded guilty to the accusation that he did not possess valid driving licence and suffered the conviction for such an offence, the Tribunal was not justified in mulcting the liability on the 3rd respondent to pay the compensation under the award. The learned Advocates on both the sides have tried to support themselves with the precedents.
4. Therefore, the following four questions arise for consideration in these appeals:-
1. (a) Whether the amount of compensation awarded by the Tribunal to the claimant at Rs. 64,000/- is inadequate?
(b) If so, what should have been the just compensation which the Tribunal ought to have awarded to the claimant with the materials on record?
2. Whether the Tribunal was right in rejecting the defence of the 3rd respondent, the insurer, that the 1st respondent, the driver of the vehicle, pleaded guilty before the criminal Court to the accusation that he did not possess the valid driving licence and suffered the conviction for such an offence?
3. Whether the Tribunal has considered the contention of the 3rd respondent regarding the defence under Section 96(2) of the Act correctly and properly?
4. (a) Whether the award of the Tribunal warrants interference by this Court?
(b) If so, to what extent? and
5. What order?
5. The finding of the Tribunal that the claimant sustained certain injuries and the disabilities due to the accident occurred as a result of the rash and negligent driving of the vehicle by the 1st respondent has become conclusive. That is not challenged by the 3rd respondent, the insurer, even in its appeal. The learned Advocate for the 3rd respondent has fairly conceded this aspect of the matter. In view of the evidence on record, the Tribunal found as a matter of fact that the claimant was aged 26 years at the relevant time and an Advocate by profession earning Rs. 2,000/- per mensem, which was declared and disclosed even in the Income-tax return submitted by him for the relevant year. It is also rightly found by the Tribunal that the claimant sustained certain injuries leading to disabilities as disclosed through the medical evidence in addition to the testimony of the claimant. The claimant testified that the injuries suffered by him are that his left ear was cut, he sustained the fracture of the left fore-arm bone, fracture of the ribs, injury to the right eye which affected the vision of his right eye partly, he sustained several minor injuries all over the body, he was treated as an in-patiant from 7-5-1989 to 18-5-1989 in the Government Hospital at Vijayawada and thereafter in Parvathi Nursing Home at Vijayawada and thereafter, he was visiting the Govenrment Hospital for six months for regular check-up and treatment and he was advised to take complete bed rest for six months. While giving the details of the compensation as claimed in his testimony, he stated that the amount claimed by him was to be granted due to his suffering permanent disability and the loss of hearing powers, etc. However he never stated as to how such disabilities or the injuries came in the way of his profession. But, there is medical evidence in regard to the injuries, the treatment and the consequences to corroborate the testimony of the claimant with regard to certain matters. There are also documents in support of it. The relevant documents in regard to the injuries, treatment, etc. are Ex.A-4, the certificate issued by the Nursing Home at Vijayawada, Ex.A-5, the bills of investigation and the charges issued by Medinova Hospital, Exs. A-21 and A-22, the X-Rays, Exs. A-23 and A-24, the opinion of the Doctors, Exs. A-25 to A-27 the X-Rays with opinion and Ex.A-28, the original accident register and also the wound certificate Ex. A-2. P.W.4, the Civil Assistant Surgeon in the University General Hospital at the relevant time, who saw the claimant on 7-5-1989 at 8.45 A.M. and who examined him at that juncture, found the following injuries on the claimant:-
1. Lacerated injury on the upper part of left pinna torn and cartilage exposed, bright red, fresh.
2. Contusion 2" x 2" on left lower parietal scalp, tenderness present.
3. Lacerated wound 1" x 1/4" scalp deep on left occipital based bright red and fresh.
4. Abrasion 3" x 1" on left upper back, bright red, fresh and contusion lumbar spine, and
5. Sub-conjunctive lacerated injury on right eye.
It is also testified by him that during the course of the treatment, the following injuries were detected:-
1. Sub eye sub-conjunctivial haemorrhage present.
2. Patient complain pain on left hand wrist.
3. X-ray dated 12-5-1989 confirmed left hand fracture of base of 4th metacorpal bone.
4. Fracture of spine wedge compression fracture of L-1 vertebra.
5. Fracture of base of left 4th metacorpal bone.
P.W.2, the Radiologist, who took X-rays on the claimant as stated above, has testified and confirmed that there were fractures of rib on the right side on the chest, wedge compression fracture of L-1 vertebra and fracture of 4th metacorpal bone. This Doctor testified that such a fracture of vertebra requires constant treatment and it gives recurring pain. Beyond this, there is no medical opinion about any other permanent disability suffered by the claimant except the recurring pain due to the injury to the L-1 vertebra requiring constant treatment. With these materials, it is certain that the claimant suffered three fractures as stated above with the disability as above in addition to other injuries. The claimant/appellant is right in pointing out that since his left ear was torn, although it is cured, it has left a scar after it was sutured during the treatment. Although the Doctors who examined him have not said anything about it, the consequences as stated need not be over-emphasised.
6. The appellant has pointedly argued that with the material stated above and by adopting the correct method of assessment, the compensation could have been as he had claimed. But the learned Advocate for the 3rd respondent insurer has with equal pointedness argued that the compensation so awarded is not inadequate although there may be always scope for reconsidering it provided the materials justify that. Having due regard to these contentions, this Court has chosen to reassess the compensation in the proper perspective to find out whether the compensation so awarded by the Tribunal is adequate or inadequate, and in particular whether it is just compensation within the meaning of Section 110-B, sub-clause (1) of the Act.
7. It is true that the claimant sought compensation under particular heads and also testified about it viz., Rs. 10,000/- towards loss of earnings from 7-5-1989 to 7-10-1989, Rs. 3,000/- towards extra nourishment, Rs. 500/- towards damage to clothing and articles, Rs. 6,400/- towards hospital bills, Rs. 1,204/- towards cost of medicines, Rs. 50,000/- each for pain and suffering and towards compensation for continuing and permanent disability, and Rs. 30,000/- towards compensation for the loss of earning powers. The Tribunal, as already pointed out, conceded some items out of the amounts claimed as detailed above.
8. The appellant has mainly depended upon the three pronouncements of this Court in P. Satyanarayana v. I.B.R. Prasad, 1987 (2) ALT 328, Islavath Nama v. S.A. Raheem, 1987 (2) ALT 378 and K. Sapana v. B. Appa Rao, 1988 ACJ 113 (A.P.) in support of his contention about the inadequacy of the compensation so awarded. All the three precedents of this Court are un-exceptionable in relation to the erudition, exhaustiveness and laying down certain guidelines in assessing the compensation in a personal injury claim case and other cases arising out of the claims under Section 110-A of the M.V. Act. Sapana's case, 1987 (2) ALT 328 also supports the appellant in regard to the general damages to be awarded atleast at Rs. 35,000/- under the head of non-pecuniary damages. A careful reading of the three pronouncements lead to an inference that while laying down the items of compensation to be awarded in a personal injury claim case, the stress is on the item of pain and suffering and the permanent disability towards the non-pecuniary damages. The general principles laid down therein apply to the facts and circumstances of the case before this Court for providing the guideline to deal with such matters. But this Court feels that the law laid down and implied therein is something more than what is understood by the concerned persons. It cannot be forgotten that in India even now the compensation claim cases are being guided or atleast pursued by the principles of law of torts settled by the Courts of the countries like England, America, Australia, etc. etc. It appears that the law of torts in India is developing from stage to stage depending upon the facts and circumstances of each case in the process. It may not be correct to say that there is a finality in the matter, the reason being not all the opportunities to deal with such matters being exhausted uptil now. Such a development in law of torts applicable to Indian conditions has been through the precedents and very little part of the law of torts in this regard has become the subject of codification, except to some extent like M.V. Act of 1988. That is why, the popular saying is that there is no law of precedent in compensation cases, except to have a persuasive value or to lay the general guideline ('Damages for Personal Injuries and Death' by John Munkman, of the Middle Temple and North Eastern Circuit, Barrister, 7th Edition at Page ). But by adopting the rules from the precedents as per the accepted basis of the comparable cases, consistency, certainty to some extent and guidance to the Tribunals in particular would be ensured in addition to projecting the transparency in such awards rendered by the Tribunals and the Courts. At the same time, no precedent unless the law is declared in accordance with the rule of precedents can be taken as a binding precedent, and each case has to be decided on its own facts and circumstances with such guidelines. The conclusion is to impress, and not to impose, that such guidelines in the precedents supra still require to be explained and elaborated with known and settled law through precedents.
9. All the similar precedents including the above concede the fundamental and the basic rule that the compensation being the amount of money as reperation for the results of tortious conduct for which the law holds the wrong- doer responsible is determined by applying, as far as possible, the general principle of 'Restitutio in Integrum'. In British Transport Commission v. Gourley, 1956 AC 184, it was emphasised that particularly in cases of personal injury, the criterion of 'Restitutio in Intergrum' can and should be applied to the pecuniary elements of the plaintiff's loss such as his loss of earnings, etc. However, in regard to the non-pecuniary elements such as pain, suffering, etc., the doctrine of 'Restitutio in Integrum' was found to be little difficult. The broad heads of damages by restitution are the general damages and special damages. This was pointed out in pre-19th century in Ratcliffe v. Evans, 1892 (2) QB 524 at 528. The heads of general damages broadly stated are:-
(a) Injury itself,
(b) Pain and suffering,
(c) Shock,
(d) Neurosis,
(e) Loss of amenities of life,
(f) Shortened expectation of life,
(g) Future pecuniary loss
(i) Total incapacity and
(ii) Reduced capacity.
The general damages for personal injuries were formulated in the leading case of Phillips v. South Western Railway Company, 1879 (4) QBD 406 at 407, by Cockburn C.J. and it reads:-
"We think that a jury cannot be said to take a reasonable view of the case unless they consider and take into consideration all the heads of damages in respect of which a plaintiff complaining of personal injury is entitled to compensation. Those are the bodily injuries sustained, the pain undergone, the effect on the health of the sufferer, according to its degree and its probable duration as likely to be temporary or permanent, the expenses incidental to attempt to effect a cure, or to lessen the amount of injury, the pecuniary loss."
To these items, the House of Lords in Rose v. Ford, 1937 (3) All E.R. 359 added the item 'damage in respect of prospective shortening of life subsequently'. The special damages which are proper and easy to be established are enumerated as hereunder:-
(a) Medical expenses,
(b) Cost of conveyance,
(c) Nursing and attendance,
(d) Extra-nourishment,
(e) Loss of, or damage to, property, clothes, etc.,
(f) Expenses incurred by third party - spouse, parents, etc.,
(g) Loss of consortium, and
(h) Loss of earning till the date of judgment.
While dealing with the items of general damages as above, Cockburn C.J. in Phillips case (6 supra) followed the observations made by Sellers L.J. in Wise v. Kaye, 1962 (1) All E.R. 257 and it reads:-
"The first element is the physical injury itself..........The physical injury itself has always been a head of claim which is justified and required in law, an award of damages according to the extent of gravity and duration of injury."
Cockburn, C.J. declared with certainty that the first head of damages is the injury itself, which involves impairment of bodily integrity. This view is being reiterated by almost all the subsequent precedents of the English Courts and elsewhere. Likewise, the other items of general damages as above are also being consistently accepted. Our own Supreme Court in R.D. Hattangadi v. Pest Control (India) Private Limited, AIR 1995 SC 755 laid down the items of general damages in Para 9 as follows:-
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
It was also an accident involving an Advocate. The conclusion in this regard to treat the injury itself as one of the items of compensation can be found in paragraph No. 10 and it reads:-
"It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a life long handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by Courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame."
The concept of classification of items of compensation in a personal injury claim case is well laid down in catena of pronouncements of the Karnataka High Court based on the above principles. To particularly include:-
1. Shock, pain and loss of amenities of life,
2. Injury itself with or without disability, either permanent, temporary, partial or complete,
3. Loss of earning capacity,
4. Shortened expectation of life,
5. Loss of prospects of marriage,
6. Loss of prospects of education, avocation, opportunities, etc.,
7. Loss of beauty by disfigurement,
8. Medical and incidental expenses,
9. Any other expenses justifiably to be met during the period of treatment and later,
10. Loss of income during the period of treatment and later,
11. Loss of future income or loss of earnings at various stages, and
12. Any other loss like loss of property, loss of honour, prestige, reputation etc., including the social status due to the social disability.
The above items of compensation are laid down in some of the judgments of the Karnataka High Court and they include the decisions in Prabhavathi's case, 1981 ACJ 445 (Karn.), Shivangowda v. Muthayya, 1982 ACJ 224 (Karn.), Pochappa v. Anantharamaiah, 1984 (1) Kar. Law Journal 41, M.S. Rayta v. Gowramma Chennabasappa, 1986 ILR 3211(Karn.) and Basavaraj v. Shekhar, 1987 ACJ 1022 (Karn.). It can be safely said that similar view is taken in several precedents in general. Adopting such a principle, this Court in Depot Manager, APSRTC, Hyderabad v. Commissioner/or Workmen's Compensation, Hyderabad and another, 1996 (2) APLJ 45 (SN) has laid down such items of compensation. So, now in addition to depending upon the three pronouncements of our High Court and also the guidelines as above supported by the settled law in various precedents including the Supreme Court which the Tribunal did not adopt, this Court will deal with them independently. The safety valve ultimately is that even in adopting individual items of compensation for assessment as long as the total compensation is just and reasonable, there cannot be any legal error to ensure for the purpose of fixing the just compensation in law.
10. Now, in the nature of the injuries suffered by the claimant which include three fractures involving the treatment for six months and the follow-up for six months later and further to continue constant treatment for the pain due to the injury to the spine or the vertebra, the shock suffered by the claimant at the time of the accident in addition to pain, the pain and discomfort during the period of treatment and the loss of amenities of life like proper posture, movement, food and bed, other normal activities both in profession and otherwise were practically restricted, if not totally impaired. The Manner in which the appellant being an advocate argued his own case demonstrated that the injuries suffered by him have not affected him in his profession perpetually. Notwithstanding the assessment of just compensation depending upon the facts of this case, it must be said to the credit of the claimant/appellant that it is not complementary to feel the consequences of such injuries without any justification. But still he will be suitably compensated in accordance with law to mitigate and ameliorate what all he suffered due to the injuries. Therefore, for this item of compensation, having due regard to the facts and circumstances of this case, Rs. 10,000/- appears to be a reasonable sum.
11. Barring three fractures, all the remaining injuries, although may not be always classified as minor or simple injuries, can be taken as completely cured, except the ear injury possibly leaving some scar regarding which a separate consideration may be made. For lacerated injury on the upper part of left pinna Rs. 5,000/-, for contusion on the left lower parietal scalp Rs. 3,000/-, for lacerated wound on scalp region Rs. 3,000/-, for abrasion on the left upper back Rs. 1,500/- and for subconjunctive lacerated injury on right eye Rs. 3,000/- would be reasonable and adequate and the total of them would be Rs. 15,500/-.
12. The appellant depended upon the decision in Rajasthan State Road Transport Corporation v. Dr. O.P. Gupta and others, 1988 ACJ 527 (Raj.) in support of his contention that the compensation in this case for the fracture, for the ribs and cervical spine should be almost Rs. 1,00,000/-. He has also depended upon the decision in Tejinder Singh Gujral v. Inderjit Singh and others, 1988 ACJ 407 (P&H), wherein for the fracture of cervical spine although different items of compensation were calculated it was styled as general damages to grant itatRs.3,00,000/-. He has also strongly relied upon Sapana's case (3 supra) to get atleast Rs. 35,000/- towards the general damages for the major injuries and the pain and suffering. Although such precedents may support him to some extent, this Court is not prepared to accept them in the manner the contention is presented. If all the three fractures are taken into consideration together, the result may be neither legal nor logical because each bone in each limb has different functions to perform although the sum total may have the totality of the functional consequences. Provenly, the fracture to rib and metacarpal bone have not left any permanent disability but it can be taken to have temporary disability for a period of two to three months during the period of treatment. There is no medical opinion that either due to the fracture of the rib or the fracture of the metacarpal bone the functional performance for moving, etc. For use of the right hand for the claimant as an advocate is impaired to any extent in future. Rib is a major bone, whereas metacarpal bone is not one. It is also not very clear in the evidence whether more than one rib was fractured. Therefore, this may be a case of fracture of one rib and one metacarpal bone leading to temporary disability. Normally for major bone without disability Rs. 5,000/- at minimum and maximum depending upon the proof may be awarded, for a rib taken independently not more than Rs. 5,000/- are awarded for such a temporary disability. For the fracture of a bone like the ribs in the right hand leaving no permanent disability Rs. 5,035/- were awarded in Darshini Devi v. Sheo Ram, 1987 ACJ 931 Even where a spleen was removed in addition to the fracture of Ribs Rs. 20,000/- as global compensation were awarded in Pepsu Road Transport Corporation v. Satinder, 1984 ACJ 316 (P & H). For the fracture of five ribs which got maladjusted during replacement operation and cervical spine giving serious pain even during the entire life in addition to permanent treatment, Rs. 50,000/- were originally awarded and it was enhanced to Rs. 1,00,000/- in appeal in Tejinder Singh's case (17 supra). This precedent is distinguishable on the facts of this case. In Rajasthan State Road Transport Corporation's case (16 supra) for multiple injuries to head, neck and ribs originally Rs. 60,000/- were awarded and it was enhanced to Rs. 1,20,000/- in appeal as a global compensation considering all the items. That cannot guide this case. In these considered concepts, not more than Rs. 10,000/- can be awarded for the fracture of the ribs having due regard to the passage of time and the loss of money value after the previous decisions were rendered in the precedents supra.
13. Normally speaking, for the fracture of metacarpal bone leaving no disability being a minor bone not more than Rs. 3,000/- can be awarded as compensation as per the comparable cases. In Krishna Kishore Kar v. Calcutta Tramways Co., 1982 ACJ 290, for the fracture of metacarpal bone of the right hand and for permanent deformity to the ring finger and for head injury Rs. 40,000/- were awarded towards general damages. A break up of the compensation in such a case rendered therein for metacarpal bone could not have been more than Rs. 5,000/-. In view of the same reasons of loss of money value due to inflation and passage of time, even assuming that the fracture of metacarpal bone of the claimant was not worth more than Rs. 2,000/- to Rs. 3,000/- in compensation, Rs. 5,000/- appears to be a reasonable sum.
14. The vertebrae in a human-being is popularly called as backbone, although it is not strictly a bone. The anatomy of a human-being discloses that vertebrae has several segments from the first cervical vertebra called Atlas upto the bottom-most column. In this case there appears to be only fracture of one column which is described as spine. The permanent disability proved is only recurring pain in future requiring constant treatment. There is no medical opinion that even that pain would become chronic. In the modern World of scientific and technological progress, no ailment is beyond cure. Atleast by proper treatment it can be ameliorated. Treating it as a major bone leaving partial disability although permanent, this Court is not able to compensate it beyond Rs,10,000/-, the reason being the very precedent depended upon by the appellant/claimant did not bear out the compensation more than that, if fracture to vertebrae column is taken into consideration separately. Now, if we take all the three fractures together for the purpose of assessing compensation, the total would be Rs. 25,000/- which is not far low, if classified as the compensation for pain and suffering following Sapana's case (3 supra) to call it justifiably a just compensation.
15. The injury to the ear, which the claimant class it as deformity leaving a scar, is not strictly proved. But any scar on any part of the body not because of the voluntary act of an individual, who is aged 26 years at the relevant time to bring within the age group of youngman, would be a social disability. The psychic syndrome to the person and the observational topic for the watchers or the viewers is a mental torture and suffering. Bearing that in mind, under this item of compensation, Rs. 5,000/- are awarded. That concludes the item of general damages amounting to Rs. 55,500/-.
16. The Tribunal has awarded Rs. 7,604/- towards the medical expenses, Rs. 3,000/- for extra nourishment and Rs. 3,000/- towards transportation. The total of that would be Rs. 13,604/-. The appellant has a grievance that for such a long treatment and the further treatment required in future the Tribunal has awarded such a low amount. The learned advocate for the 3rd respondent has contended that with the material nothing more could have been done. This Court is in agreement with him barring incidental expenses and the future treatment expenses. Since there is no material in support of the same, a fixed amount of Rs. 5,000/- is awarded to total the compensation for medical expenses and incidental expenses Rs. 18,604/-.
17. The declared income of the appellant/claimant as an advocate is proved to be Rs. 2,000/- per mensem. He was regularly under treatment for about six months and the loss of income for that period can be taken as full and it comes to Rs. 12,000/-.
18. Regarding the loss of future income, there may be difficulty in assessing it. The claimant, as already pointed out, has demonstrated that in spite of the disability suffered by him, his competence and capacity as an advocate has not so much impaired, and it can be recorded to his credit that although he argued his own case, he did it quite satisfactorily. It is not unlikely that with his efforts and the support of the providence not only his income can increase but also he may grow up to heights in the profession and otherwise. Therefore, his future loss of income cannot be assessed in that background. The impairment of vertebra to any extent due to pain should normally affect the performance of an advocate physically and also mentally. Any pain which is subjective is bound to obstruct the normal functions. The converse of pleasure being pain is the antethesis of natural comfort. It is bound to detract the concentration which is required for such a professional individual. The medical opinion did not confirm the degree of disability. The recurrence of pain, perhaps analogestically treated may give relief, but any negligence or over-strain is bound to repeat it, if not aggravate. This is the natural experience of a reasonable, prudent and normal human being. Nothing less than 10 to 20 per cent disability as a whole may not be improbable. Whether it is Rs. 2,000/- per mensem or more the reduction in the income as a whole may be 10 to 20 per cent. In the absence of any data regarding the future income, which is not known as yet, taking Rs. 2,000/- per mensem as proved income and reducing it to 20 per cent as Rs. 200/- per mensem or Rs. 2,400/- per annum applying the multiplier method and to call Rs. 2,400/- as multiplicand and with the multiplier of 15 as the normal one for the age of 26 years, the loss of income for the remaining span of life of the claimant can be fixed at Rs. 33,600/-. In view of the approximation, it can be rounded of to Rs. 30,000/- and that can represent a reasonable sum towards the loss of future income.
19. Since no other item of compensation can be awarded in this case, the appellant/claimant is entitled to recover the compensation as follows:-
1. For shock, pain and loss of amenities of life Rs. 10,000-00
2. For minor injuries:
(a) Lacerated injury on the upper part of left pinna Rs. 5,000-00
(b) Contusion on the left lower parietal scalp Rs. 3,000-00
(c) Lacerated wound on scalp region Rs. 3,000-00
(d) Abrasion on the left upper back Rs. 1,500-00
(e) Subconjunctive lacerated injury on right eye Rs. 3,000-00 Rs. 15,500-00
3. For major injuries:
(a) Fracture of ribs Rs. 10,000-00
(b) Fracture of metacarpal bone Rs. 5,000-00
(c) Fracture to vertebra Rs. 10,000-00
(d) Ear injury Rs. 5,000-00
Rs. 30,000-00
4. Towards medical and incidental expenses Rs. 18,604-00
5. Loss of income during the period of treatment Rs. 12,000-00
6. Loss of future income Rs. 30,000-00
Total Rs. 1,16,104-00
20. Now we come to the appeal of the 3rd respondent to consider whether the Tribunal was wrong in mulcting the liability on the 3rd respondent insurer to pay the compensation under the award; the reason being, according to the contention, that the 3rd respondent took a defence of the driver, 1st respondent, having not possessed the valid driving licence being one of the defences available under Section 96(2) of the Act and the 1st respondent having pleaded guilty thereby conceding that he did not possess the driving licence and having suffered conviction at the hands of the Criminal Court, the liability of the Insurance Company was no longer in existence. The Tribunal, as already pointed out, rejected such a contention on the ground that as per the settled law in New India Assurance Co. Ltd. v. C.B. Shankar, 1986 ACJ 82, notwithstanding the driver not possessing the valid driving licence, the burden of proving such a defence is still on the Insurance Company. The learned advocate for the 3rd respondent herein contends that in view of the clear expressions in Exs.B-1 and B-2, they being the admissions are the best pieces of evidence in proving the guilt. The dictum in Shankar's case, 1986 ACJ 82 was neither relevant nor applicable to the facts of the case, and on the other hand prima facie and patently such a plea had been established in view of the admission of the driver. The claimant/appellant has repelled this contention by arguing that in the first place the 3rd respondent did not raise such a defence in the written statement and secondly, did not produce the copy of the insurance policy to initially plead that there was a stipulation in the insurance policy, the breach of which absolved the Insurance Company from the liability of paying the compensation to the claimant. Now, it is settled by the Apex Court of the country in Sohanlal Passi v. P. Sesh Reddy and others, (1996) 5 SCC 21, following its earlier ruling in S. Kandia Insurance Company Limited v. Kokilaben Chandravadan, (1987) 2 SCC 654 that the Insurance Company should not only plead such a defence permissible in law under Section 96(2) of the Act but also prove it by producing copy of the insurance policy and any other material and should also clearly plead that it was the insured person who committed the breach of any terms of the policy and not merely saying that the driver of the vehicle did not possess the valid driving licence. The implication of such precedent of the highest Court is that even assuming that the driver of the vehicle did not possess the valid driving licence, that itself is not sufficient as it must be established that although the owner of the vehicle entrusted the vehicle to a driver having valid driving licence, it was being driven by a person without valid driving licence to the knowledge of the owner and such a violation had occurred due to the misconduct of the owner himself. There may be several instances where a vehicle may be driven by somebody with or without the licence and with or without the knowledge and consent of the owner himself. The original records are not before this Court as the matters are taken up for hearing on some priorities. But the appellant has produced a copy of the written statement, the correctness of which is not disputed by the learned advocate for the 3rd respondent and paragraph No. 5 of it reads as follows:-
"The petitioner must further prove that at the time of accident the driver i.e., 1st respondent was having valid driving licence and the accident occurred during his course of employment under the 2nd respondent and the accident occured due to only purely negligence driving of the first respondent and that the crime vehicle was insured with this respondent."
On the face of it, this cannot amount to raising a defence since the claimant was not expected to plead that the driver of the vehicle possessed the valid driving licence nor the burden to prove it was on the claimant. There was no occasion for the Insurance Company, the 3rd respondent, either to deny it or to call upon the claimant to prove such a thing. It was totally out of context. The defences open to the insurer under Section 96, sub-clause (2) of the Act are not only statutory but also part of the factual situations like the policy, the terms of the policy, the breach of it, and consequently, the insurer not becoming liable to pay the compensation. Even according to the spirit of the fundamental rules of pleadings to be borrowed from Order 6, Rule 2 of the Civil Procedure Code, the pleading, which includes written statement, shall contain a statement in concise form of the material facts on which the party pleading relies for his claim or defence as the case may be. In that sense, all material facts in relation to such a defence by the insurer should find a place in the written statement. Merely calling upon the claimant to prove such a fact will not tantamount to setting up a defence. Moreover, a copy of the insurance policy has not been produced by the Insurance Company which is mandatory as laid down by the Supreme Court in National Insurance Co. v. Jugal Kishore, 1988 (1) ACJ 270 (SC) and, therefore, neither the Tribunal nor this Court is in a position to examine the correctness or otherwise of such a defence with reference to the stipulation and the breach therein. In that view of the matter, there is no merit in this appeal and it deserves to be dismissed.
21. In the result, C.M.A. 975 of 1996 is allowed. The award of the Tribunal is set aside and it is substituted with the following order:-
The claimant/appellant shall be entitled to recover Rs. 1,16,104/- from the respondents with costs of the proceedings and interest at the rate of 12 per cent per annum from the date of the petition till the date of payment, and in the peculiar circumstances of the case, having due regard to the compensation fixed as above with other reliefs, there shall be no order as to costs in this appeal. This shall be subject to depositing the amount and to release it in terms of the directions of the Supreme Court in Susamma Thomas and Ors. v. General Manager, Kerala State Road Transport Corporation, and U.P. State Road Transport Corporation v. Trilokchandra, 1996 (4)Supreme 479 = 1996 (2) ALT 36 (D.N.) and others.
22. C.M.A. No. 1151 of 1996 is dismissed. There shall be no order as to costs.