B.K. Sangalad, J.-These appeals arise against the award passed in MVC Nos. 25 of 1988 and 26 of 1988.
2. The respondent in both appeals has filed cross-objections for reduction of compensation and also challenged the negligence.
3. In MVC No. 32 of 1988, the claimant was the rider of the scooter. The appellants in these appeals were travelling as pillion riders on the scooter on 19-7-1987. At about 9.00 a.m. the accident took place near Mani on Mangalore-Bangalore National Highway. While the driver of the scooter was going slowly on the left side of the road near the said spot, a KSRTC bus bearing No. MEF 618 came from the opposite direction in a high speed on the wrong side driven rashly and negligently and dashed against the scooter. As a result, all of them got injuries.
4. For the claimants, P.Ws. 1 to 4 are examined and Exs. P. 1 to P. 22 are marked. For the respondents, no witness is examined much less any document is marked.
5. At the very outset, the contention of Mr. Dabali, learned Counsel for the respondent, in respect of negligence, is taken up for consideration. There is some delay in filing cross-objections in these appeals. However, it is pertinent to note that the respondent has not preferred any appeal against the award passed in MVC No. 32 of 1988. It is pertinent to note that all these MVC Nos. 25 of 1988, 26 of 1988 and 32 of 1988 arise out of the common judgment. When the respondent has not chosen to prefer the appeal in MVC No. 32 of 1988, it goes without saying that the respondent has accepted the negligence. The respondent cannot afford to challenge negligence in some cases and keep quiet in some case. When there is a common judgment, the respondent ought to have filed appeal against the award passed in MVC No. 32 of 1988 also. Hence, in my opinion the contention of Mr. Dabali that there was contributory negligence on the part of the rider of the scooter also, cannot be accepted.
6. Mr. O. Mahesh, learned Counsel for the appellants now canvassed that the compensation awarded is very meagre. On the other hand, Mr. Dabali submits that the compensation awarded is on the higher side and it is liable to be reduced. In view of these submissions, perused the judgment of the Tribunal.
7. Let us take first what compensation should be awarded in MVC No. 25 of 1988. The claimant is a minor girl aged about 11 years. Ex. P. 1 is the wound certificate which would show that she sustained the fracture of left femur and frontal parietal region. The claimant is examined as P.W. 1. These injuries are grievous in nature. In addition to these injuries, she also sustained other injuries. Ex. P. 2 is the case sheet which would show that she was in the hospital from 19-7-1987 to 3-9-1987. Ex. P. 3 is the x-ray. It is observed by the Tribunal that no medical bills are produced. Mr. Mahesh, learned Counsel for the appellants submitted that the evidence of the father of this minor child namely P.W. 2 has gone unchallenged in the cross-examination. However, the Tribunal has awarded a sum of Rs. 5,000/- towards medical expenses. The Tribunal has also awarded a sum of Rs. 15,000/- towards pain and sufferings on account of the injuries. Mr. Mahesh submitted that the injured was taken to the Government Venlock Hospital, Mangalore. But unfortunately no Doctor is examined. On the basis of the evidence on record, now it is to be seen what is the just and reasonable compensation. It is in the evidence of P.W. 2 that he spent Rs. 6,000/- for the treatment of his daughter and has spent Rs. 15,000/- for the treatment of his son. It is also on the record that the girl was in-patient from 19-7-1987 to 3-9-1987. Almost for more than one and half months she was in-patient. It is noted that the girl is of tender age. She got the fracture of left femur and frontal parietal region. If something had been very serious and severe, she could have suffered to the larger extent and these injuries certainly affect her future life. However, the Doctor is not examined. Nevertheless there is no impediment to assess and award reasonable compensation since claimant sustained two fractures and other injuries and she has taken treatment for more than 11/2 months. Hence I am inclined to award a sum of Rs. 30,000/- towards pain and sufferings and for the loss of amenities in the life. It is in the evidence of P.W. 2 that he has spent Rs. 1,000/- towards taxi charges for attending the hospital on four occasions. This is also awarded. He has further stated that he has spent Rs. 6,000/- for medical expenses. This has gone unchallenged in the cross-examination. There is no impediment to award this amount towards medical expenses. The girl was being attended by the parent for more than 11/2 months. Naturally, he had incurred expenditure towards conveyance, boarding, lodging and other expenses. I am inclined to award a sum of Rs. 2,000/- for that purpose. Hence the total compensation comes to Rs. 39,000/-.
8. The story of the petitioner in MVC No. 26 of 1988 is very pathetic. He is tender aged boy attending the primary school. To his misfortune, after the accident, he has become deaf. He lost 100% hearing power. Exs. P. 9 and P. 10 are the certificate and x-ray of the claimant. Ex. P. 15 is the out-patient chit of NIMHANS. Ex. P. 16 is the prescription chits issued by Dr. Sathyasundar of Puttur. Ex. P. 17 is the certificate issued by Dr. Mallya and Ex. P. 19 is the Audiogram report.
9. Mr. Mahesh, relied upon a decision in the case of Baladev Krishan and Others v Chanderdeep Jain, 1984 ACJ 163 (P and H). It is difficult to get the support from this decision to arrive at just and reasonable compensation in this case. The boy is studying in 8th standard in the Physically Handicapped School. Now there is 100% deafness. He has lost all the pleasure in the world to hear good music, good dialogue and other aesthetic enjoyments in his life. Even if he gets married, he cannot talk with his wife. When he walks on the road, he always faces dangers as he cannot hear the sounds of the vehicles plying on the road. In short, the petitioner has to suffer from innumerable impediments in his life.
10. With all this, the big question before us what would be the reasonable compensation. In the absence of any specific injuries, I am inclined to look into the provisions of the Workmen''s Compensation Act just to know what is the normal loss of working capacity and the earning capacity. 100% deafness is covered in Schedule I of Item 6 of this Act. According to this Schedule, deafness means 100% loss of earning capacity. If the boy is 16 years and if he suffers from this impediment, the factor that is to be applied is 228.54. Even assuming that the boy at the age of 16, would be capable of earning only Rs. 1,000/- even then the loss of earning capacity comes to Rs. 2,28,540/-. But is to be borne in mind the uncertainties and contingencies in the life. The petitioner will not be totally disabled from taking up any other avocation. But he has lost one of the important sensitive organs. Now we have to strike the balance between these two things. In my opinion, the ends of justice would be adequately met with if a sum of Rs. 1 lakh is awarded for the loss of 100% hearing of both ears inclusive of pain, sufferings, enjoyment, loss of amenities and earning capacity. In addition to this, a sum of Rs. 10,000/- is awarded towards medical expenses, conveyance, nourishment and other miscellaneous expenses. In all the petitioner is entitled to Rs. 1,10,000/-. Hence the following order.
In the result, both the appeals are allowed in part. The compensation of Rs. 39,000/- is awarded in MVC No. 25 of 1988 and Rs. 1,10,000/- is awarded in MVC No. 26 of 1988 with 9% interest p.a. and the proportionate costs from the date of the petition till the date of payment.
