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Judgment
P.D. Desai, J.—x x x
On March 25, 1973, the claimant, aged about 54 at the time of the accident and about 56 at the time of the trial, boarded the bus in question from Ahmedabad in order to go to Matar. He was occupying a seat behind the driver''s cabin. At about 9-30 p.m., when the bus was running on the highway between Jetalpur and Bareja, the truck in question approached from the opposite side. There was a collision between the two vehicles. The right side of the truck dashed against the right side of the bus. The driver of the bus lost control as a result of the impact The bus left the road and it hit against a tree and then came to a sudden stop. The claimant received various injuries as a result of the accident, two of which were a fracture of the right acetabulum (the cup shaped socket in the side of the pelvis into which the head of the femur bone of the thigh is fitted) and a fracture of the head of the right femur (see Ex. 136, certificate issued by Dr. N.R. Patel, Ex. 135). The claimant underwent prolonged treatment and was thrice operated upon consequent to the accident. There is a serious dispute between the parties on the question whether or not the prolonged treatment and surgical operations are attributable to the accidents injury and we shall dwell on that aspect a little later.
While the claimant was still undergoing treatment, he instituted the claim application out of which the present appeal arises. The initial claim was for a compensation in the sum of Rs. 40,000/-. Subsequently, however, an application for amendment, Ex. 44, was submitted by the claimant for enhancing the claim for compensation to the sum of Rs. 95,000/-and the amendment was allowed. The amount claimed was split up under the various heads in the application as follows:
Rs. 50,000/- Loss of income.
Rs. 5,000/- Pain, shock and suffering.
Rs. 40,000/- Cost of medical treatment, transportation and diet charges, cost of attendance, etc.
Rs. 95,000/-
Be it stated that so far as compensation under the head of medical treatment, etc., is concerned, the claimant''s case in the application was that he had incurred actual expenditure of Rs. 26,000/- and that a further expenditure of Rs. 9,0C0/- to Rs. 10,000/- was likely to be incurred in future. The claimant, however, claimed a round sum of Rs. 40,000/- under the said head. The Tribunal awarded total compensation in the sum of Rs. 7,000/- under the following heads:
Rs. 3,000/- Actual cost of medical treatment.
Rs. 1,000/- Loss of income for a period of two months.
Rs. 3,000/- Pain, shock and suffering.
Rs. 7,000/-
The claimant has challenged the award on the ground that it is grossly inadequate and he has claimed enhanced compensation in the sum of Rs. 68,000/- in the appeal. The claim in cross-objections is confined to the amount awarded, namely, Rs. 7000/.
X X X X
I. Bio-Data of the Claimant:
As earlier pointed out, the claimant was a man in his middle fifties at the time of the accident. He was a businessman residing in the town of Matar in Kaira District. He was a partner in a firm carrying on business in textiles at Matar in the name and style of M/s. Popatlal Parsottamdas Shah. The extent of his share in the said business was 60 paise in a rupee. There was only one other partner in the said firm and his share was 40 paise (See Exhs. 86 and 89: assessment orders). The claimant was also a partner in another firm carrying on business at Matar in the name and style of "Ekaj Bhav Vastu Bhandar". In the said firm his share was 45 paise in a rupee. There were two other partners in the said firm and the extent of their share was 35 and 20 paise in a rupee (See Ex. 88: assessment order). In both the said firms, the claimant had not only invested funds but he also used to attend to the business. In fact he appears to have been the main working partner attending to purchases and sales. The books of account of M/s. Popatlal Parsottamdas Shah for Samvat Years 2028 to 2031 which are produced in this case are also admittedly written by him. It appears that in addition to attending to the businesses of the aforesaid two firms, the claimant used to manage a shop of his son at Kaira where business was carried on in the name and style of ''Mahavir Vastra Bhandar''. It is the case of the claimant that his annual income-prior to the accident was about Rs. 20,000/-. There is evidence on the record to show that in S.Y. 2028-- (20.10.1971 to 5.11.1972) his share in the profits of the two firms in which he was a partner was computed for the purposes of income tax at Rs. 13,300/-. (See Ex. 87: assessment order).
II. Pre-Accident Physical Condition:
According to the claimant (Ex. 71), he had a defect in his right leg since the age of three. His right leg was short by 1/2" or 3/4" since that age. Inspite of the defect, however, he could sit cross-legged and attend to all the work. A suggestion made to him in the cross-examination that since his birth his leg was short by 2" to 2 1/2" and that he used to limp considerably was denied by him. After the accident, Dr. M.T. Mehta, Ex. 131, Orthopaedic Surgeon had examined him. At that time, on the basis of the claimant''s statement that he had a prior disability in the right hip joint, he had noted that there was "an old deformity of right lower limb which is kept flexed, adducted and internally rotated at the right hip". Dr. Mehta stated that on account of the said disability his leg was shortened. However, he has made no note about the extent of shortening. Two witnesses examined on behalf of the first Respondent have also referred to this preaccident disability. B.S. Patel, Ex. 181, who is employed as a Depot Manager under the said Respondent and who claims to have stayed at Matar for one to one and a half year about eighteen years ago, has deposed that on account of the defect in the right leg, the claimant used to bend on one side to the extent of 1" or 1 1/2" R.P. Desai, Ex. 183, another Depot Manager in the employment of the first Respondent and who was posted at Matar since about five years, has deposed that the claimant had a defect in the leg and that he used to carry a stick while walking. According to both those witnesses, the claimant was seen by them attending to the business at the shop. According to witness Desai, the claimant also used to attend to income tax and sales-tax offices and he used to move out everywhere before the accident.
On an analysis of the evidence with regard to the abovementioned pre-accident defect in the right leg of the claimant, it would appear that it was an old deformity as a result of which the leg was flexed and shortened to some extent; there was internal rotation and limp in the said leg which required him to carry a stick while walking. However, there is no precise evidence as to the extent of shortening and the versions differ. Be that as it may, the said physical disability did not come in his way in pursuing the day to day activities of life. He could attend to his business. He could move about everywhere. He was not confined to his home town and could undertake journey. He could sit cross-legged. There is no evidence to suggest that he suffered any pain on account of the said defect.
III. Injuries and disability noticed after the accident and the history of medical treatment.
X X X X
To summarise, the medical treatment-- administered to the claimant and his physical condition from the date of the accident till the date of trial, and thereafter period-wise was as follows:
Period
Medical Treatment
Physical condition
1.
25-3-1973
First aid treatment on the spot.
Unconsciousness after accident; injuries on various parts; increased pain at night; inabi. lity to move in bed.
2.
26-3-1973
At the Civil Hospital, Kaira and at the Civil Hospital, Ahmedabad.
Unable to walk.
3.
26-3-1973 to 9-4-1973
As an indoor-patient at the Surgical Home of Dr. M. T. Mehta at Ahmedabad; tablets, tonic etc.; operation not advised.
Pain continued; not cured till discharge; unable to walk and bed-ridden.
4.
10-4-1973
to 19-6-1973
At Matar at his residence under the supervision of Dr. R. H. Parikh according to the prescription of Mr. M. T. Mehta ; Mr. Mehta saw him at Matar during this period and advised physiotheraphy.
Pain continued; right leg could not be stretched; walked only on crutches.
5.
20-6-1973
to 10-9-1973
As an indoor-patient at the T. K. Polio Clinic at Ahmedabad for physiotheraphy treatment; treatment continued. Dr. Prabodhbhai was consulted during this period ; he advised operation.
No improvement; pain persisted ; unable to walk.
6.
11-9-1973
to October 1973.
At Matar; no specific evidence regarding treatment.
No specific evidence. ''
7.
November 1973 to May 1974.
At Baroda five months Hospitalisation at Dr. Bhagat''s Hospital.
Hospitalisation.
(a)25-12-1973
First operation by Dr. Merchant.
(b) 30-1-1974
Second operation by Dr. Merchant.
(c)13-5-1974
Discharged from the Hospital of Dr. Bhagat at Baroda
8.
14-5-1974
to 5-10-1974
At Matar where exercises were resumed. Dr. Merchant was consulted once again during this period. Fresh operation advised.
Tried to walk with two sticks; bone disunited again.
9.
October
1974 to December 1974
At Bombay where Dr. Dholakia performed "total hip operation." Hospitalisation in the Bombay Hospital from 6-11-1974 to 19-12-1974.
Hospitalisation.
10.
December
1974 to February
1975
At Matar, treatment as per the prescription of Dr. Dholakia.
Rest.
11.
February 1975 to July 1975
Dr. Dholakia consulted again ; advised walking with crutches and with assistance.
Unable to sit cross-legged or to walk without crutches; pain experienced while walking; special commode and shoes used; unable to attend business at shop.
12.
August 1975
Proposed consultation with Dr. Dholakia at Bombay
13.
3/4-9-1975
Consultation with Dr. M. T. Mehta at Ahmedabad ; "no further treatment possible".
Still some disability; cannot sit cross-legged or squat.
It might be stated for the purpose of record that the Tribunal has observed in paragraph 26 of its judgment that after his evidence was recorded, the claimant was often seen visiting the Court and "moving with a sort of walking stick having a handle and not using crutches".
Against the aforesaid background, the relevant findings recorded by the Tribunal may be examined. The Tribunal held that the claimant had a pre-accident deformity in the same joint of the right leg where the accident injury came to be inflicted. The pre-accident injury was substantial. In the Tribunal''s opinion, however, it would not be right to say that the injury caused by the accident did not result in further pain or suffering to the claimant. On account of the said injury, the claimant must have undergone pain and discomfort "atleast for some time". The Tribunal then posed the question whether the treatment taken by the claimant at various places and whether the disability which the claimant alleged that he was now suffering were connected with the accident injury or not. While considering this question, the Tribunal took note of the evidence of Dr. M.T. Mehta to the effect that he had not advised any surgical operation at the time when the claimant was discharged from his hospital and that he expected the claimant to be well in about two months'' time after the discharge. The Tribunal also emphasized the circumstance that during the period of the said hospitalization, the claimant was administared only some tablets and tonics and that he was advised to move about gradually. The Tribunal then adverted to the circumstance that none of the doctors who subsequently treated the claimant, namely, Dr. R.S. Parikh, Dr. Prabodhbhai, Dr. Merchant, Dr. Bhagat and Dr. Dholakia, were examined as witnesses by the claimant to prove that the surgical operations were considered necessary for the treatment of the injury caused by the accident and that they were not undertaken at the instance of the claimant himself for remedying the earlier disability. The Tribunal observed:
The evidence in the case and the conduct of the Applicant leave no doubt that he took the opportunity afforded by this accident to make an attempt to get rid of the earlier defect, and in a craze to remove the defect, he consulted a number of doctors and got himself operated upon more than once contrary to the advice of the expert Orthopaedic Surgeon, Dr. M.T. Mehta, whom he had consulted earlier and who was the first medical expert to treat the Applicant after the accident.
X X X X
The final conclusion of the Tribunal was in the following terms:
Therefore, it must be held that the disability now suffered by the Applicant is not due, directly or indirectly, to the injuries sustained by him as a result of the accident but it is due to his anxiety to get his earlier defect removed and of his having undergone total hip operation.
On the basis of the aforesaid findings, the Tribunal proceeded to assess damages.
X X X X
At the trial of a claim petition, what the claimant must, no doubt, prove is that the loss for which he claims damages was caused by the Defendant''s negligent act. The evidence to prove the loss and the negligent act may be direct or circumstantial or both. Such evidence must be tested by the yard stick of probabilities and its intrinsic worth. In considering the question as to whether the direct evidence given by the claimant and his witnesses should be accepted or not, the primary duty of the Tribunal is to ascertain whether it is consistent with itself and with the rest of the evidence and the circumstances of the case. It is hardly necessary to add that it would be unsafe to discard such evidence, if it appears otherwise to be reasonable and probable, merely because of some suggestions made to the witnesses without those suggestions being proved to be true. While dealing with circumstantial evidence the Tribunal must be satisfied on preponderance of probability whether the circumstances established prove the loss and negligence. Every case in the final analysis would have to depend upon its own facts, but the Tribunal should be slow to reject evidence which is ex facie trust-worthy on grounds which are fanciful or in the nature of conjectures.
It cannot be overlooked also that the trial of a claim petition is concerned with the fate of a person who had met with an accident or with the dependants of an unfortunate victim of an accident. Accident is an event in real life, its impact is sudden and its immediate effect is to arouse the instinct of the preservation of life or the affected limb. The collection and preservation of meticulous particulars which may be required to be proved at the trial of a claim petition to be instituted and tried months or years hence would obviously be the farthest consideration present to the mind of the persons involved in the tragedy. Besides, it might not be possible in all cases to lead the evidence of the experts or all of them who might have been consulted or who might have administered treatment to the injured or deceased person. It is a matter of common knowledge that for diverse reasons it may not be possible in every case to produce such evidence and that if otherwise trustworthy evidence led by the claimant with regard to the nature and consequences of the injury and the course and cost of treatment were to be disregarded merely on the ground of non-examination of an expert, there would be miscarriage of justice.
It is also well to bear in mind two related aspects in this connection. First, there is an essential distinction between "burden of proof" and "onus of proof"; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence (see Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, ). Reference may be made in this connection to the following observations of the Supreme Court in T.K. Gangi Reddy v. M.C. Anjaneya Reddy (1960) 22 E.L.R. 261:
Burden of proof has two distinct meanings, viz., (i) the burden of proof as a matter of law and pleadings, and (ii) the burden of proof as a matter of adducing evidence. Section 101 deals with the former and Section 102 with the latter. The first remains constant and second shifts. In the present case, the burden of proof, in the first sense, certainly lies on the first Respondent, but he has examined himself. A court of first instance or an appellate court is entitled to accept his evidence. If so, the onus shifts on to the Appellant to prove those circumstances, if any, dislodge the assertions of the first Respondent. The Appellant has failed to put before the court any facts. In the circumstances, the court is entitled to say that the burden of proving the necessary facts had been discharged by the first Respondent.
It would thus appear that the legal burden-- the burden as a matter of law and pleadings --remains constant, but the burden as a matter of adducing evidence changes often times, as the trial progresses. Secondly, in an action for damages, the claimant is not compensated for the physical injury, he is compensated for the pain and loss which he suffers as a result of that injury. His loss is not in having a stiff or a shortened leg ; it is in his requirement to undergo medical treatment, in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned if there had been no accident. If, therefore, the claimant proves the injury and the loss and reasonably connects them with the accident, either by direct or circumstantial evidence, he has proved his claim for damages.
Another aspect we mention it because it has a direct bearing on the decision of this case-is that the Defendant (wrong-doer) is entitled, as the saying goes, to take the Plaintiff "as he finds him" ; that may be to his advantage or disadvantage. Therefore, if it is proved that prior to the accident the claimant was not a fit or-able-bodied man but had some pre-exi sting disability or weakness which had caused his "devaluation", in the sense that it had produced a general reduction or his capacity to do things, to earn money and to enjoy life, that would be a relevant factor in assessment of damages when he claims them after suffering the accident-injury. The tortfeasor would be responsible for the additional devaluation caused to him, he would only have to pay for the additional loss to the claimant by reason of the accident-injury. When such a question arises, however, it has to be answered on a consideration of all the circumstances and by taking a comprehensive and unitary view of the damage caused by the pre and post accident-injury. It is common place that the law regards many events as having two causes. Even if a claimant''s present disability can be regarded as having two causes and as flowing from two injuries, it will have to be ascertained whether the later injury has reduced or enhanced the disability. If it has made him more lame, more disabled, more deprived of amenities of life, the wrong-doer who inflicted the later injary cannot escape responsibility on the ground that there are concurrent causes for the disability.
X X X
Dr. Mehta was, therefore, called to Matar and he advised physio-therapy. Thereupon, the claimant procured admission as an indoor patient at the T.K. Polio Clinic, at Ahmedabad, in the middle of June for physio-therapy treatment and he was confined there till the second week of September, 1973. Even during this period, there was no improvement. Pain persisted and he could not walk. Dr. Prabodhbhai was, therefore, consulted and he advised operation. Still, however, the claimant did not jump at the suggestion. He went back to Matar and was there until October, 1973, hoping for improvement. It is only when no improvement was found that he went to Baroda in November, 1973, that is to say, nearly seven months after the date of the accident and five months after the expiry of the period within which he should have been cured, according to the opinion of Dr. Mehta. Even after going to Baroda, he does not appear to have been in any hurry to undergo a surgical operation. The first of such-operations was performed on December 25, 1973 and the second on January 30,1974. There was a prolonged period of hospitalization for five months and the discharge from the hospital at Baroda came only in the middle of May, 1974. The claimant then went back to Matar again and resumed exercises. He tried to walk with the aid of two sticks. From May, 1974 to October, 1974, the claimant stayed at Matar hopefully and patiently looking forward to improvement but to no avail. The bone got disunited again and when there was fresh consultation with Dr. Merchant during this period, he advised another operation.
The course of events set out above which has been proved beyond doubt shows that Dr. M.T. Metha''s advise against surgical operation at the initial stages of the treatment for the accident-injury has turned out to be wrong in retrospect and that it cannot be held out against the claimant. This is apart from a very relevant consideration, namely, that merely because there is a difference of opinion amongst experts with regard to the advisability of undergoing surgical operations, it would not be right to hold that the surgical operations were not necessary or that they were not connected with the accident injury or that the present disability was not the result of the accident injury but was a post-surgical disability not connected with the accident. There has been hardly any break, any interval, any hiatus to snap the link between the accident-injury and the treatment including surgical operations undertaken. The whole period from the date of the accident till the date of the trial has been one of continuous pain and suffering and disability in varying degrees and each course of treatment undertaken is chronologically and intrinsically interconnected. Merely because several doctors who gave different treatment from time to time were not examined as witnesses at the trial, the unimpeachable evidence led by the claimant which establishes connection between the accident injury and the medical treatment and the present disability cannot be brushed aside. Be it emphasized at this stage that the fact that the treatment was taken and that there was some disability even upto the date of trial is not in dispute. The only dispute centres round the question whether the connection between the accident-injury and the medical treatment and the present. disability is established. Non-examination of all the medical witnesses, some of whom are eminent and busy medical practitioners, is not a factor which can be pressed into service against the claimant in the context of the facts and circumstances of this case. He has sufficiently discharged the onus which lay upon him to prove all the essential facts, and in order to rebut the evidence led on his behalf, it was for the Respondents to take necessary steps such as, for example, to examine expert witnesses of their own to disprove those facts. Not only that was not done but questions were also not put to Dr. M.T. Mehta whom the claimant examined to prove his condition at the time of the trial, with a view to eliciting from him clearly and unequivocally that the claimant underwent the entire gamut of treatment including three surgical operations with the end in view of curing his pre-accident defect and that the present disability was the result of such exercise.
Even if the Tribunal had tested the evidence on the touchstone of probability and its inherent worth, it could not possibly have come to the conclusion that it reached. The claimant had the pre-accident disability since the age of 3. It was, therefore, an old deformity with which he had lived for over half a century with all its unsightliness, inconvenience and the resultant reduced capacity if any, to do things and enjoy life. It would be stretching one''s imagination too far to hold that in his mid-fifties the claimant would think of getting rid of the said deformity by seizing the opportunity presented by the accident. Having covered the two-thirds span of his life and having married and raised the family and having made a fairly successful career, he could hardly have thought of experimenting in his old age for an uncertain outcome. He could hardly have regarded it a profitable experience to undergo three surgical operations and to remain hospitalized for nearly 6 1/2 months at two different places away from his home. It must be remembered that he was not in an impecunious condition and it was not as if he could not have undertaken the treatment for curing his original deformity for nearly half a century. There is no evidence to show that he was a miser who was reluctant to spend even on his own self and for his own comfort. It must also be remembered that the evidence shows that as a consequence of the original deformity, the main handicap which the claimant experienced was a limp. Dr. M.T. Mehta has deposed that when he first examined the claimant, he had noted, on the basis of what the claimant had stated, that on account of the old defect in the leg, it was "kept flexed, adducted and internally rotated". The claimant has deposed, however, that inspite of such deformity, he could sit cross-legged and do all the work. There is nothing to show that the said deformity was painful. Dr. Mehta''s evidence is that the claimant complained of the pain only after he received the accident-injury. The old deformity is not shown to have handicapped the claimant in attending to his day to day work. The evidence, in fact, is to the contrary. Dr. Mehta''s evidence is that the claimant was unable to squat or sit cross-legged even when he examined him last. He does not say that the claimant had told him that that also was an old disability. Under such circumstances, one will have to go to the extent of holding that the long course of treatment, undertaken by the claimant, if he really intended to get cured of the original deformity, was more or less for asthetic purposes. That would be hardly a relevent consideration at his advanced age. And above all is the glaring fact that though the original defect and the accident-injury were on the same leg and in the same joint, both were distinct disabilities as deposed to by Dr. Mehta. The treatment for one could not automatically have been the treatment for another and one would have to go so far as to hold that the treatment for the old deformity was taken while the effect of the accident injury persisted, as it is shown to have persisted, upto the time the claimant went for treatment to Baroda and even thereafter.
xxx
We have no hesitation in coming to the conclusion that the findings of the Tribunal on the point under consideration, which have been extracted above, are manifestly unreasonable and that the same have caused gross miscarriage of justice. We, therefore, disagree with those findings and hold that the claimant has successfully established that the prolonged medical treatment including the three surgical operations were the direct and proximate result of the accident injury and that the disabilities to which he has deposed at the trial and which are borne out from the evidence of Dr. M.T. Mehta are also the direct and proximate consequences of the accident injury, subject to what we might have to later say on the aspect of the shortening of the leg.
XXX
It might be mentioned at this stage that the aspect of shortening of leg is not to have much relevance in this case because we do not propose to take that factor into account for the purposes of adjudging the disability of the claimant flowing from the accident and the resultant loss. It is an admitted position that shortening of the leg was a pre-accident deformity. The claimant''s version is that it was to the extent of 1/2" to 3/4". His further version is that there was further shortening of the leg to the extent of 2" as a result of the accident injury. On the record of the case there is no clear and reliable evidence to establish the extent of the shortening prior and subsequent to the accident, under such circumstances it would not be safe to hold that there was any further shortening of the leg as a result of the accident. Even if that aspect is altogether ignored, there is evidence still to reach the conclusion that the claimant, who had some devaluation prior to the date of the accident on account of the limp in the leg, suffered further devaluation as a result of the accident injury and that he underwent a prolonged period of pain and suffering and suffered further loss of those amenities of life which depend upon freedom of movement for all of which he is entitled to be compensated. He also sustained economic loss, both positive and negative, as a result of the burden of expenditure thrown upon him consequent upon the accident injury and the loss of income flowing from his inability to attend to the business. We, therefore, do not propose to take the factor of shortening of leg into account in the assessment of damages.
We now proceed to deal with the question of assessment of damages under different heads.
(1) Medical Treatment & Transportation & Diet Charges:
As earlier pointed out, the claim under this head in the application was in the sum of Rs. 40,000/-. At the trial, the claimant deposed that by that time he had spent in all Rs. 30,000/- to Rs. 32,000/-. The claimant has brought voluminous documentary evidence on record to sustain and prove his claim. At Ex. 82 is the statement of expenditure in the handwriting of the claimant himself. The statement shows that the total expenditure in the sum of Rs. 31,398. 76 p. was incurred by the claimant. Then there are entries from ledger account at Exs. 83, 84 and 85 in the handwriting of the claimant. Ex. 83 shows an expenditure of Rs. 5,004.99 p. Ex. 84 shows an expenditure of Rs. 18,460.38 p. and Ex. 85 shows an expenditure of Rs. 31,424.81 p. The last one seems to be the entry which takes into account the previous expenditure reflected in the earlier entries. Besides there are note-books in which expenses incurred from day to day were entered and they are at Exs. 143 to 147. There are also several vouchers supporting the various items of expenditure reflected in Ex. 82 and they are all listed in the list, Ex. 132. As many as 29 vouchers which total up to Rs. 15,984.75 p. have been produced and proved by the claimant. It would thus appear that the claimant is shown to have incurred an expenditure of Rs. 31,398.76 p. as shown in the list, Ex. 82. Even the Tribunal has observed that looking to the detailed evidence produced by the claimant on this point and looking to the extensive treatment taken by him at various places, it was likely that he might have spent a substantial amount. The Tribunal, of course, observed that the figure of Rs. 30,000/- appeared to be exaggerated.
On behalf of the Respondents it was rightly pointed out that not all the items of expenditure included in Ex. 82 were attributable to the medical treatment required to be administered to the claimant for the accident-injury. Seven items totalling up to Rs. 1,326.20 p. were pointed out to us which appeared to be wholly unconnected with the medical treatment. On behalf of the claimant it was not disputed that those items could not be related to medical treatment. Under those circumstances, the amount of Rs. 1,326.20 p. will have to be deducted from the total sum of Rs. 31,398.76 p. which is the aggregate expenditure mentioned in the list Ex. 82. That leaves the net amount of Rs. 30,072.56 p. To round up, the expenditure incurred by the claimant on medical treatment comes to Rs. 30,000/-.
The Tribunal has awarded a sum of Rs. 3,000/- only under this head because of its findings on the other issue with which we have disagreed above. The Tribunal allowed the cost of medical treatment upto the point of time the claimant took treatment at the T.K. Polio Clinic at Ahmedabad because it found that the treatment taken from that point onwards was eritirely in order to get rid of the original deformity. Once that finding is displaced and it is shown that the expenditure in the sum of Rs. 0,000/- was, in fact, incurred by the claimant in the course of medical treatment, there is no option but to allow the whole of it. Under the circumstances, we enhance the award under this head from Rs. 3,000/- to Rs. 30,000/-.
(2) Pain, Shock and Suffering and Loss of Amenities and Enjoyment of Life:
We start with the undisputed legal position that the Respondents must take the claimant in the physical condition in which he was at the date of the accident. The claimant on that day was a person having a deformity in his right leg which was short and which caused the limp. We have held above that there is no precise evidence to show as to what was the extent of shortening prior and subsequent to the accident. We have further held that, that factor has to be ignored in the assessment of damages. Therefore, while assessing damages under this head, we shall ignore that factor altogether.
The claimant''s physical condition right from the date of the accident till the date of trial has been traced by us in ample detail in the earlier part of the judgment. We need not repeat or reiterate the same at this stage. Suffice it to say that from March 25, 1973 till December 1974 the claimant underwent continuous medical treatment during the course of which he was thrice operated upon and hospitalized for a period of nearly 6 1/2 months away from his home. During the intervening period he was either confined to bed or was on crutches. Pain continued practically all throughout and the injured leg could not be stretched. Even at the date of the trial, he was unable to sit cross-legged or squat. On the date of his deposition he was on crutches, although subsequently the Tribunal had noticed him visiting the Court with the support of something like a stick. As earlier pointed out, these disabilities were not the product of his original deformity. His evidence on the point is clear and specific that prior to the accident he could sit cross-legged and do all the work. Even Dr. M. T. Mehta has deposed that when he first saw the claimant, all that he noted on the basis of what the claimant told him was that there was old deformity of right lower limb which was "kept flexed, adducted and internally rotated at the right hip". Dr. Mehta, however, clarified that the pain came on only after the accident. Besides, the further inability to squat or sit cross-legged was not noted by Dr. Mehta at that stage. It is a fact which has been proved even by the evidence led by the Respondents that prior to the accident the claimant used to attend to all the work relating to his business and that he used to move about everywhere and that he even used to attend income tax and sales-tax offices. The evidence on record shows that the disabilities that the claimant is now suffering will stick to him for the remainder of his life because Dr. Mehta''s opinion in clear terms is that no further treatment is possible.
It would thus appear that the accident-injury, far from rendering the claimant less lame, less disabled and less deprived of amenities of life, has made him more disabled and more deprived of amenities. It has also imposed upon him greater pain and suffering. For this the claimant must be compensated and adequately compensated, for he has still to live, by normal standards, atleast for 15 more years.
XXX
A number of cases have been decided by this Court wherein damages have been awarded to claimants in varying age groups for pain, shock and suffering and loss of amenities and enjoyment of life on account of disability resulting from accident injury on one or two legs. Those decisions provide a provisional guide and indicate the bracket of damages into which this case might fall. A brief summary of the awards made in those cases is set out in a tabular form hereinbelow:
Sr. No.
Claimant''s Name
Age & Sex
Pre-accident occupation
Nature of injury and disability
Award
Reference
1.
BabuMansa
15 Yrs. Male
Manual work of excavating sand
Fracture of right leg and arm--nail inserted in leg--shortening of leg to the extent of 1/2 cm.-- Wasting of thigh and fixed flexion deformity of hip--unable to sit cross-legged--squatting with support only-- leg could not be bent.
Rs. 15,000/-
1978 A.C.J. 485
2.
BharatPremji
15 Yrs. Male
Trainee mechanic
Crack fracture on the right leg--contused lacerated wounds on head and right foot--two periods of hospitalization-per-sistent ulcerations at the site of injury on account of skin grafting--permanent limp--stiffness in right toe--running not possible.
Rs. 15,000/-
1979 A.C.J. 264
3.
AmulRamachandra
12 Yrs. Male
Study
Bones, muscles and tissues of the right foot crushed--right foot amputated from above the ankle-- required to use crutches --artificial leg with special shoes used.
Rs. 25,000/-
1979 A.C.J. 460
4.
BhaskarKhandubhai Desai
12 Yrs. Male
Study
Constused lacerated wound of large size on each leg exposing the mucle and other parts below the injuries-the right forefoot hanged with help of some of the muscles --viability of the foot doubtful--fracture dislocation-- several operations during the four periods of hospitalization--stiffness of right ankle and foot movement only of few degrees--even on the date of trial extensive painful scar over the left leg with mild killoidfor-mation-- shortening of leg and possibility of further shortening'' in future-- permanent limp-- difficulty in normal walking -- required to wear special surgicial boot.
Rs. 22,500/-
: AIR 1978 Guj. 158
5.
MohmedHanif
25 Yrs. Male
Cleaner
Amputation of both legs above the knee-- completely crippled.
Rs. 35,000/-
1980 A.C.J. 333
6.
Dushyant Patel
25 Yrs. Male
Bank employee/ business
Four fractures, one each on right frontal bone, shaft of left femur, right tibia and left ulna--hospitalization for three months --dent and scar on the right side of the fore-head--partial loss of memory and lack of control of movements--disability in the left arm and both the legs --disability in right leg of a higher order --difficulty in walking--sitting cross-legged and squatting possible but with pain--difficulty in walking fast--deformation of left forearm which also had no rotation and could not be raised upto the shoulder-- disturbed sleep-- wasting of thigh.
Rs. 22,500/-
F.A. Nos. 832/76 with F.A. No. 865/76 decided by this Bench on January 29/30, 1981 & February 2, 1981.
7.
FirozBharda
32 Yrs. Male
Bank cashier
Severe injuries on right knee--gross dislocation of right knee joint--two hospitalizations of total period of 41 days-- nail inserted--prolonged treatment at home--Even attrial trembling and inability to run and bend legs--light limping.
Rs. 18,000/-
F.A. No. 838/76 decided by this Bench on February 25/26 and March 2, 1981.
The above survey of decided cases indicates that for different kinds of injuries on one or two legs, awards in different sums have been made under this head, depending upon comparative severity of different injuries. The awards have varied from Rs. 15,000/- for a single fracture in the right leg coupled with other injuries to Rs. 35,000/- for amputation of both legs above the knee. These awards, as earlier stated provide a safe guide for determining the amount of compensation awardable in the present case under this head.
We are herein concerned with a person in his middle fifties at the time of the accident, who had a pre-accident deformity in the same limb. This factor will have to be borne in mind while assessing damages under this head because in the cases referred to above, the injured claimants were adolescents or youths and there was no evidence to show that they had any pre-accident deformity in the same or any other limb. The age of the injured person would necessarily make a considerable difference because the claimant herein would have to live with the post-accident disability for a fewer years than the claimants in the above-mentioned cases. At the same time, however, it cannot be overlooked that the claimant herein has suffered pain and inconvenience for a prolonged period and has undergone extensive medical treatment including three surgical operations, the last of which must be considered as major. The total period of hospitalization was about 6| months. He was confined to bed for long months. Then followed a prolonged period of walking with crutches and at or after the trial, with the aid of a stick. The pain persisted for almost the whole of the period. The medical opinion about his condition at or about the time of trial shows that he was unable to sit cross-legged or squat. The condition was incapable of any improvement. Even on a conservative estimate, it would not be unreasonable to expect the remainder of his life to be 15 years. Taking into consideration all the relevant aspects of the matter and bearing in mind the guidance furnished by the decided cases dealing with injuries on leg, we are of the view that an award in the sum of Rs. 15,000/- would be just and proper on the facts and in the circumstances of the case.
x x x
The claimant has deposed that his income was about Rs. 20,000/- per annum. His version is that after the accident he was unable to go to the shop, he was unable to attend to the business and that as a result thereof, the sales decreased.
x x x
The claimant''s oral evidence regarding economic loss is amply supported by the aforesaid documentary evidence. The comparative sales figures for S. Ys. 2028,2029 and 2020 of one of the firms with which he was connected show that the sales had gone down by about Rs. 22,000/- in S.Y. 2029 as compared to the sales of the previous year and that in the year following the sales had picked up a little but not to the same extent as before the accident. Similarly, the income of the claimant from the said firm had gone down in the year of accident by Rs. 988/-, that is to say, by about 33%. This unimpeachable evidence establishes beyond doubt that as a result of the accident, the claimant suffered economic loss in one of the businesses run by him. There is no precise documentary evidence with regard to the comparative loss, if any, suffered by him in the other business. However, it would not be unreasonable to assume that his income from the other business must also have been affected to some if not similar extent. Apart from the precise documentary evidence dealt with above, the very fact that the claimant was away from Matar for a fairly long period and that almost all throughout the period of his prolonged treatment he was unable to freely move about would justify the conclusion that he must have sustained economic loss upto the date of trial. Furthermore, the evidence relating to his physical condition on the date of trial leaves an impression that even sometime thereafter, he may not be able to devote the same time, attention and labour to the several businesses in which he was interested. For the economic loss thus sustained and to be sustained by him on account of the accident, he must be adequately compensated.
On a consideration of the entire evidence, it appears to us just, proper and reasonable to assess the economic loss sustained by the claimant at Rs. 225/- per month for a period of about 21 months from April 1973 to December 1974. The loss computed accordingly works out to Rs. 4,725/-, say, Rs. 4,700/-. For the remainder period, that is, for the period from January 1975 onwards for which future economic loss has to be computed, the loss cannot be taken to be of the same magnitude or on the same scale. From January 1975 until the date of trial and for the remainder period of his life, it appears to us to be just and proper to evaluate the total or aggregate economic loss at exactly half the abovesaid amount, that is to say, at Rs. 2,375/-. Be it noted that the said amount includes both the positive and - negative loss as explained in Bharat Premji''s case 1979 A.C.J. 264 (Guj.). Even on a very conservative basis, that would be a just and proper estimate. The global assessment under the head of economic loss, therefore, work out to Rs. 7,125/-. To take a round figure, the loss may be assessed at Rs. 7,000/-.
We may now summarize the effect of our award which under the various heads is as under:
Rs. 30,000/- Cost of medical treatment, transportation and diet charges, cost of attendance, etc.
Rs. 15,000/- Pain, shock and suffering and loss of amenities and enjoyment of life.
Rs. 7,000/- Economic loss.
Rs. 52,000/-
The Tribunal has awarded a total sum of Rs. 7,000/- to the claimant under the abovesaid various heads. The said amount will have to be deducted from the amount which we have determined above. Accordingly, the claimant will be entitled to an additional compensation in the sum of Rs. 45,000/-.