K. Sapana vs B. Appa Rao and Others

Jagannadha Rao, J.—In this appeal, it has become necessary to refer to the various heads of pecuniary and non-pecuniary losses in injury cases. Incidentally, I shall refer to the method of arriving at the multiplicand while computing future pecuniary losses and the deductions therefrom.

The Appellant who is a young girl met with a serious accident on 24.4.1978 at Kakinada. The right front wheel of the Respondent''s lorry belonging to the 2nd Respondent and driven by the 1st Respondent ran over the right leg. The right leg below the knee had to be amputated. She was in the Government Hospital, Kakinada for a prolonged period, i.e., 24.4.1978 to 5.8.1978. At the time of accident, she was 12 years old and was in the 6th Class and had a good future scholastic career, her father being a lecturer in the M.S.N. Degree College, Kakinada. Her mother was working as a Health Supervisor in P.H.C., Pandur. The chances of good education and marriage were shattered. She suffered and will suffer physical and mental agony throughout her life. Soon after the operation, the parents were corresponding with an artificial limb centre at Poona. A total compensation of Rs. 80,000/- was claimed comprising of Rs. 30,000/- for medical expenses, treatment and artificial limb; Rs. 40,000/-for loss of prospects of marriage and loss of future earnings and Rs. 10,000/- for physical and mental agony.

The Respondent Nos. 1 and 2 remained ex parte before the Tribunal and the matter was contested by the 3rd Respondent, insurance company. On a consideration of the evidence, the Tribunal, in its judgment dated 26.11.1979 held that negligence of the driver was proved and it passed a decree for Rs. 20,000/- for general damages and awarded Rs. 8,000/- as special damages towards expenses for replacement of artificial limb, and travelling expenses, in all Rs. 28,000/-. Against the said judgment, the claimant, represented by her father, has filed this appeal.

In this appeal, the learned Counsel for the Appellant, Mr. K. Srikrishna has contended that the award is grossly inadequate, that the learned Tribunal has not considered the matter in the context of the relevant heads and sub-heads for pecuniary and non-pecuniary compensation. On the other hand, Mr. LA. Naidu, the learned Counsel for the insurance company, has tried to support the decree.

The Petitioner has since become a major and is so declared and the next friend/ guardian is accordingly discharged.

Unfortunately, these days, lawyers do not seem to be bestowing as much attention as is necessary to pleadings and evidence in accident cases. In cases of serious injuries, adequate sums are not claimed under the required heads of damages and even if claimed, the necessary evidence is not led. A tendency has grown to treat accident claims as matters which can be disposed of almost summarily. Lack of attention to pleadings, evidence and principles of law has resulted in accident victims becoming victims of an inadequate trial. Awareness of these deficiencies is the need of the hour. I have, therefore, thought it necessary to refer to the principal heads and sub-heads of non-pecuniary as well as pecuniary damages so as to guide lawyers and lower Tribunals for dealing with these questions in a proper and effective manner.

We have adopted the English law of Torts in our country, except to the extent modified by any special law. Judgments of our courts in India have generally drawn the principles from leading cases in England in this field. If one has to refer to the Indian rulings, one has to refer to quite a lot of them because of the existence of a large number of High Courts. Instead, it will be sufficient to refer to the source from which all the High Courts have drawn inspiration, namely, the cases in England. It is of course, necessary to mould them to suit Indian conditions.

With these preliminary remarks, I shall come to the subject proper.

In my judgment in P. Satyanarayana v. I. Babu Rajendra Prasad 1988 ACJ 88 (AP), I have dealt with the computation of quantum of non-pecuniary damages, while in the other judgment in Bhagawan Das v. Mohd. Arif, 1987 ACJ 1052 (AP), I have dealt with the computation of the quantum of pecuniary damages.

HEADS OF DAMAGES

(A) Non-Pecuniary

(B) Pecuniary

Damages are awarded for non-pecuniary losses such as mental and physical distress including pain and suffering, shock. loss of amenities of life, loss of expectation of life, disfigurement, discomfort and inconvenience etc. Damages are also awarded for pecuniary losses such as loss of earning capacity (or earnings), other specific harm relating to property or business and reasonable expenses for medical aid and special diet, and expenses for employing attendants and other expenses. I shall explain these expressions in detail, a little later.

There is no controversy that for a victim who is conscious, ''full compensation'' has to be awarded in respect of damages for ''loss of expectation of life'', ''loss of amenities of life'' and ''pain and suffering''. But, there is a controversy in the case of unconscious Plaintiffs with regard to the need for awareness on his part as a condition for granting damages.

I have pointed out in my judgment in P. Satyanarayana v. I. Babu Rajendra Prasad, 1988 ACJ 88 (AP), that in England the theory of'' full compensation'' is applied (as opposed to the theory of ''functional compensation'') for awarding non-pecuniary damages for ''loss of expectation of life'' and for ''loss of amenities of life''. This was on the basis that, even in the cases of unconscious Plaintiffs, the above two heads of non-pecuniary losses have to be compensated ''substantially''. However, the English courts awarded, in the case of ''pain and suffering'' only moderate damages on the theory that an unconscious Plaintiff could not feel ''pain and suffering''. In Australia and Canada, unfortunately for all these three types of non-pecuniary damages, the award is made on a ''functional'' basis and not on a full compensation basis, the theory being that the money must serve a useful function and is not meant to enrich the victim''s legal representatives at the end of his life. In my judgment in P. Satyanarayana v. I. Babu Rajendra Prasad, 1988 ACJ 88 (AP), I have accepted the English approach of awarding substantial damages for ''loss of expectation of life'' and ''loss of amenities of life'' and of awarding moderate damages for ''pain and suffering'' in case of unconscious Plaintiffs.

Of course, it goes without saying that if the Plaintiff is conscious and is in a position to experience all these three types of losses (both past and future), substantial damages have to be awarded for all these three types of non-pecuniary damages.

Non-pecuniary damages for ''loss of expectation of life'', ''loss of amenities of life'' and for ''pain and suffering'' are awarded both in cases of injured Plaintiffs as well as in cases by dependants of a person dying in a fatal accident. In the latter type of cases, i.e., fatal cases, the damages awarded for these non-pecuniary losses go into the award towards loss to the ''estate''.

HEADS OF NON-PECUNIARY DAMAGES

(a) Pain and suffering

Everybody agrees that these words ''pain and suffering'' do not mean the sum which the Plaintiff--or anyone else--would be willing to suffer the injury for. Alabam Freight Lines v. The Venot (1949) 68 Ariz 260. Pain and suffering have no exchange value and there is no attempt to equate them to anything like that. Damages are allowed not only for past pain and suffering but also for that which is reasonably likely to result in the future from the injury. Further, there is no clear line of distinction between physical and mental suffering, nor does the law insist on drawing one. Where there is no physical impact or trauma, the problem of liability itself may become complicated. Given a bodily injury, however, damages will be allowed for many forms of mental distress which result from or accompany the injury, such as fear, worry, humiliation and functional mental disturbances. Questions may even arise where the court has to consider distress from inability to pursue vocations which enrich life spiritually but not materially. (Vide Damages in Accident Cases, by Fleming James Jr; Cornell Law Quarterly, Vol. 41, p. 582 at pp. 603 to 605).

The expression ''pain and suffering'' is almost a term of Article The court will rarely distinguish between them. Indeed, there is a tendency to lump all non-pecuniary losses together under the compendious title ''pain and suffering and loss of amenities''. In fact, the elements are different. According to Kemp & Kemp, Quantum of Damages, 1982, Vol. 1, p. 1009, para 1.007, the word ''pain'' is used to describe the physical pain caused by or consequent upon the injury while ''suffering'' relates to the mental element of anxiety, fear, embarrassment and like.

Now, pain and suffering may occur in a variety of ways. A few examples may help in understanding the scope of these words. In Rourke v. Barton 1982 The Times June 23, the Plaintiff was a woman whose husband was suffering from terminal cancer. She sustained an injury to her hip which prevented her from caring for her husband when he was at home. That inability distressed her. McCullough, J. took the ''distress'' into account in assessing damages for the injuries received by the wife. Nextly, it is to be noted that the duration of the pain is equally important. Allowance must also be made for some unpleasant surgical operations, especially where there is a series of skin-grafting operations or where there is an awkward fracture of a bone which necessitates more than one operation to set it properly. If nervous shock accompanies physical injuries, it too qualifies for damages as a part of ''pain and suffering''. The shock may give rise, at a later stage, to adverse physical effects, such as the premature termination of pregnancy. This cannot be treated as a matter of'' remote'' damage. In Wilkinson v. Dounton (1897) 2 QB 57, there was a false report that the Plaintiffs husband had been involved in an accident. More recently, the House of Lords held in McLoughlin v. O''Brian 1984 ACJ 410 (HL England), that there was liability towards a Plaintiff who suffered shock on being told of an accident to her husband and children and then seeing them in distress in the hospital. Action will be for injury by shock sustained through the medium of the eye or the ear without direct contact. (Bournhill v. Young 1943 AC 92). This is an injury to the nervous system, and it passes through the brain to the centre of the nervous system, and affects the glands and other chemical controls of the body, producing well recognized symptoms. Large damages have been granted for shock and consequent neurosis when a wife saw her husband killed. (See Hinz v. Berry (1970) 2 QB 40). Recently, a Plaintiff who had a general pre-disposition for neurotic illness and who developed severe neurosis as a result of a relatively slight shock, was awarded damages in Brice v. Brown 1984 (1) All ER 997. (See Munkman: Damages for Personal Injuries and Death, 7th Edn. 198).

Regarding the quantum awarded for ''pain and suffering'' it varies from injury to injury. Courts have been giving different amounts depending upon the nature of the injury. These amounts are updated on basis of inflation. I have dealt with this aspect in detail in my judgment in P. Satyanarayana v. I. Babu Rajendra Prasad 1988 ACJ 88 (AP).

(b) Loss of Amenities of Life

''Loss of amenity'' is a broad and amorphous category, and embraces a hotchpotch of disabilities, such as the interference with or prevention of the pursuits of former activities and it goes further. This head of non-pecuniary damages embraces every thing which reduces the Plaintiffs enjoyment of life considered apart from any material or pecuniary loss which may be attendant upon the Plaintiffs injuries. The words ''loss of amenities'' have been explained in a vivid manner in the oft-quoted unreported case Manley v. Rugby Portland Cement Co. Ltd. C.A. No. 286 of 1952, referred to in Kemp & Kemp, 1982, para 3.001, page 3001 by Burkitt, L.J. as follows:

There is a head of damage which is sometimes called loss of amenities, the man made blind by the accident will no longer be able to see the familiar things he has seen all his life; the man who has had both legs removed and will never go upon his walking excursions--things of that kind-- loss of amenities.

Several High Courts in India have followed Manley''s case, C.A No. 286 of 1952.

This head of damages can be understood better by reference to a few examples. Loss or impairment of any of the five senses arguably falls under this head of damage as does interference with the victim''s sex life; reduction in or loss of prospects of marriage of a young woman, fall under this head; loss of the pleasure and price a craftsman takes in his work and particularly the loss of having to replace such craft by ''humdrum work'' is loss of an amenity. Loss or impairment of enjoyment of a holiday as a result of personal injuries is compensated under this head. (See Ichard v. Frangoulis 1977 (1) WLR 556). Inability of a wife to care for her husband (because of an accident to her) as much as she would have wished to look after her husband who was terminally ill with cancer, particularly since the husband was looking to her for support, was a loss of amenity. (See Rourke v. Barton 1982 The Times June 23). Likewise, a Plaintiff whose serious injuries led to the breakdown of a marriage was forced to make a financial provision for his family when his wife divorced him Jones v. Jones (1984) 128 Sol Jo 470 (CA). Loss of amenity also includes impairment of housekeeping ability.

So far as the amounts awarded under this head of damages are concerned, they vary from injury to injury. Brain damages, paralysis, loss of eyes etc. are given higher amounts. Loss of legs, spinal injuries etc. belong to other categories. The courts have attributed particular values to the loss of amenities arising out of each type of disability and these are upgraded from time to time depending on the inflation. I have dealt with this aspect in detail in P. Satyanarayana v. I. Babu Rajendra Prasad 1988 ACJ 88 (AP).

(c) Loss of Expectation of Life

Damages are also given for the loss of expectation of life, that is, for the actual shortening of life by a certain number of years, and damages. Damages under this head are awardable not only in cases of injured victims but also in cases of death but in the latter case, the damages devolve on the estate. Lord Atkin decided in Rose v. Ford (1937) 3 All ER 359, that loss of enjoyment of life over the ''lost years'', i.e., life shortened by the accident, is of real value. Finally in Benham v. Gambling 1941 AC 157, it was declared that a conventional figure is to be awarded for loss of expectation of life on an ''objective'' basis and not on a ''subjective'' or awareness basis. There, Lord Simon, L.C. said:

...the thing to be valued is not the prospect of length of days, but the prospect of a predominantly happy life. It would be fallacious to assume, for this purpose, that all human life is continuously an enjoyable thing, so that the shortening of it calls for compensation -- The ups and downs of life, its pains and sorrows as well as its joys and pleasures--all that makes up life''s ''fitful fever''--have to be allowed for in the estimate....

Though at that time a conventional figure of � 200 was adopted towards the damages for loss of expectation of life, in course of time it has been increased to � 1,250 till it was altogether abolished in England by Section 1(1)(a) of the Administration of Justice Act, 1982. But in India, damages are still awardable under this head of loss of expectation of life. Conventional amounts are awarded by various courts for this loss, if there is evidence of shortening of life due to the accident, the amount depending upon the extent to which life is shortened. One has to look to the amounts awarded in India in earlier cases and increase the same periodically on the basis of the fall in money values.

(d) Disfigurement

Disfigurement has always been regarded as an important element in assessing damages, especially where a young woman is disfigured and her prospects of marriage impaired. It is often difficult to decide how much of the damages is awardable for injuries and how much for the disfigurement. In Farley v. North East Metropolitan Regional Hospital Board 1954 The Times, 9 Nov., a married woman, aged 30, had both legs badly burnt and scarred while in hospital, and had to have a skin-grafting operation which still left a scar on her thigh. She was unable to walk far or dance. She was awarded � 3000 for disfigurement. Munkman (7th Edn., p. 119) says that in Victorian times, a woman''s career was mostly as a housewife and large awards were made for disfigurement but now they are not so large because today, in England, it may not result in loss of a career. However, I may state that in India conditions have not yet changed and for most women, the career of a housewife is common.

(e) Discomfort and inconvenience

Discomfort and inconvenience may be regarded as a slight form of pain and suffering. Cases, for example, of traffic accident disrupting a holiday, fall under this category. In Ichard v. Frangoulis 1977 (1) WLR 556, the holiday in France was disrupted.

HEADS OF PECUNIARY LOSSES

Under this head come (a) past and (b) future pecuniary losses. They have to be estimated not only on the basis of what the Plaintiff has lost in the past and future on account of the injury (called the negative side of the picture) but also the extra expenses incurred or to be incurred, i.e., past and future, (called the positive burden) which the victim has come to bear on account of the disability. I have dealt with the method of computation of past and future pecuniary losses in my judgment in Bhagawan Das v. Mohd. Arif 1987 ACJ 1052 (AP).

I shall now deal with the various heads of pecuniary damages.

One of the main items of pecuniary losses is ''loss of earnings'' both past and future. Under the head of other expenses come items such as medical expenses, conveyance, special diet, etc. to which I shall deal in detail.

(a) Loss of Earnings or Earning Capacity (Total or partial)

The simplest case is that of a claimant who was earning wages or a salary when he was injured. If injury has resulted in total or partial incapacity to work, Plaintiff is entitled to recover the amount of earnings lost for this reason upto the date of trial (actuals) but so far as the probable future earnings are concerned, he recovers their ''present value'' at the date of trial. If the Plaintiffs incapacity is or is likely to be partial for the whole or part of the duration, the Defendant is entitled to have deducted the amounts which Plaintiff earns or reasonably could earn during the period of partial disability.

In determining the past or future loss of earning capacity, the question is not whether the Plaintiff would have worked, by choice. He is entitled to compensation for his lost capacity to earn, whether he would have chosen to exercise his choice to work or not

(b) Loss of Past Earnings (Upto date of trial)

Where a Plaintiff who is injured is paid wages or salary, the loss of earnings upto date of trial (the actuals) can be easily determined. The Gujarat High Court has held the ''date of trial'' in injury cases means the date on which evidence for the victim is commenced at the trial. (Per P.D. Desai, J. in Bharat Premjibhai Vs. Municipal Corporation, Ahmedabad and Another, . Such special damage must be specifically pleaded. The point that, as a fact, the Plaintiff was not working is not relevant. It is his capacity to earn that is relevant. It was his choice to work or not. But, at the same time, the chances that, apart from the injuries, the Plaintiff might not have been able to earn, has to be taken into account. Sometimes, though the Plaintiff is incapacitated, his employer might have paid him a sum equivalent to wages upon an understanding that the sum would have to be paid back on receipt of damages. But even then, the tort feasor cannot claim a deduction of that amount, for it is the choice of the employer to recover the sum or not (per Lord Denning in Dennis v. L.P.T.B. 1948 (2) All ER 779). The position is different if the wages are paid or become payable according to rules, as of right and they are not refundable. (Metropolitan Police Receiver v. Croyden Corporation (1957) 2 QB 154).

Loss of past earnings upto date of trial have in case of long delay between the date of accident and date of trial to be increased to offset ''inflation'' in that period. But because the petitions have to be filed within six months of the accident and now interest at 12 per cent per annum is being granted from date of petition as per recent decisions of the Supreme Court, the need for increasing the actual losses upto date of trial to compensate for inflation from date of accident is not generally arising.

(c) Prospective Loss of Earnings

Unlike past financial loss, future financial loss is not certain in the sense that no one can say definitely, at the time when the assessment of damages is made, that loss of any particular amount will be suffered or even, perhaps, that a certain type of loss will be suffered at all. Whether with regard to the future earnings or the future medical expenditure, one cannot be as certain as he is about the past losses upto date of trial. The future losses-in earnings or medical expenses may either go up or go down. The court has to estimate the future losses by considering various important and rational factors. I have referred to these aspects in my judgment in Bhagwandas Vs. Mohd. Arif, and have computed a Table on a ''real rate of interest of 4% and on the basis of the mortality rates published by the Government of India (1976-80).

Future (and past) loss of earnings have to be estimated on a ''full compensation'' basis. Loss of future net earnings are to be arrived at by computing the difference between--

(i) what would have been earned if there had been no injury, and

(ii) what (if at all) will be earned after the injury; and

(iii) duration of disability.

The first aspect, prima facie, includes the lost earnings by the (a) interest method, (b) lump sum method, (c) the actuary''s multiplier. I have dealt with these methods at length in my judgment in Bhagwandas Vs. Mohd. Arif, and stated that the multiplier method advocated by Lord Diplock in Mallett v. McMonagle 1969 ACJ 312 (HL, England), is the simplest and that it has been approved by the Supreme Court in M.PS.R.T.C v. Sudhakar 1977 ACJ 290 (SC).

(i) Probable Future Earnings (if there was no accident)

This has to be estimated on the basis of the earnings or earning capacity at the time of accident. If the rate varied, or the work was of a casual nature, the practice is to take an average over a reasonable period of one year. If large special fees or other windfalls have accrued in the past, as in Philips v. London and South Western Rly. Co. (1879) 5 CPD 280, the chances of similar gains in the future may also be considered- The court must also provide for the chances of increase or reduction in the rate of earnings. A professional man who is not earning much in his present appointment may have prospects of getting better paid in the future. For example, a one-third allowance was made for the chances that a teacher with a good academic record would pass a promotional examination, though he had failed previously and had only one more chance. (See Ratnasingam v. Kow Ahi Dek 1983 (1) WLR 1235). On the other hand, allowance may have to be made for chances of early retirement from profession due to other factors or possibility of a business man going bankrupt. In cases of casual employment, the chance that for some time there may be absence of employment, can be considered. If the claimant''s earnings depend on earnings of a partnership or a company, the earnings and future prospects of the firm are relevant. The court can see whether the claimant''s absence has brought down or is likely to bring down the profits of the firm or company. (See Vaughan v. Greater Glasgow P.T. Executive, 194 SLT 44). Income tax must be deducted from future earnings. (See British Transport Commission v. Gourley 1956 AC 185). Similarly, the contribution towards insurance premia have also to be deducted. (See Cooper v. Firth Brown Ltd. 1963 (2) All ER 31).

(ii) Potential Future Earnings (after the accident)

These may also have to be ascertained, for the purpose of being deducted from the earnings estimated as if there is no accident under (i) above. Of course, when there is a total disability, the court can proceed on the basis that the claimant has nil potential or deductible earnings after the accident. But, where there is partial disability, the position is different and in that event, we have to see what he can now earn. It happens that a skilled- worker may still be able to do some unskilled or semi-skilled job. On the other hand, a man who is suited only for heavy work and has no talents for anything else, and that case is to be treated as a case of total loss of earning capacity. (See Blair v. F.J.C. Lilley (Marine) Ltd. 1981 SLT 90).

(iii) Duration of the Incapacity

The court has to estimate the duration for which the disability will last. There may* be a total incapacity for the rest of the life or it may be only for a particular period in the future. It may also be a case of partial disability even from the beginning. Much depends on the medical evidence.

Where there is a total disability for life, the average expectancy of the victim can be determined from the Tables prepared by the Registrar General, Government of India, New Delhi, based on national statistics. While in case of fatal accidents one would look for the years of expected life of the deceased with reference to his age at his death, the position is slightly different in cases of injuries. It is the age of the victim at the trial (on the day when the evidence starts) that is criterion. With reference to the age of the victim at the trial, his future expected span of life can be computed based on national averages stated above. This is because the victim''s past earning upto the stage when he (or his witness) is in the witness-box can be computed with certainty because the victim is very much alive at the trial. In fact, the damages upto the trial are awarded as ''special damages'' which can be ascertained with certainty. The difficulty arises only with regard to the future, from the day the claimant or his witnesses step out of the witness-box.

Munkman on Damages, 1985 Edn., points out a basic fallacy in certain popular conceptions. He says (at p. 65):

It has been contended that Tables of expectation of life are a poor guide to life expectation in any particular case. However, Tables give the average. Some will have a higher expectation, roughly as many as that have a lower one. It is, therefore, absurd to suppose that prima facie expectation is less than the Tables. The correct approach is surely to take the Plaintiffs average for his or her age according to the Table, but then to increase or reduce the amount if the evidence indicates better or worse prospects than average. This is certainly more accurate than a guess without using Tables at all.

In my opinion, this represents the correct position. Those who have some knowledge of modern statistics and the theory of mathematical probability will understand that in nature, deviations from the average either on the positive side or on the negative side are uniform. That is one of the great curiosities of nature discovered by science.

As to how the annual estimated future loss has to be converted into a present money equivalent, I have dealt with it in detail in Bhagwandas Vs. Mohd. Arif, .

(d) Value of Perquisites including Free Board and Lodging

In certain employments, apart from salary, there are large perquisites, including boarding and lodging. The monetary value of these items has to be included in the loss of future earnings. Other benefits in kind, such as the value of a motorcar or house, must also be valued as part of the net earnings.

(e) Loss of Housekeeping Capacity

In the case of a housewife, the loss of housekeeping capacity, the cost of home help is considered to be a fair measure of future loss even if she did not intend to employ anyone. (See Daly v. General Steam Navigation Co. Ltd. 1980 (3) All ER 696).

(f) Loss of Career

Where a claimant has not yet left school, the loss of an academic year or two have to be compensated by awarding some conventional amounts. The effect the injury has permanently on the career (say) of a school boy, or an actress or a craftsman has to be evaluated. Where a boy sustained head injury at school which diminished his ability to learn and concentrate, the same is liable to be compensated. (See Jones v. Lawrence, 1969 (3) All ER 267).

(g) Unused Earning Capacity

What is, as already stated, important is not the actual earning of the claimant on the date of accident but his ''earning capacity''. Reserve earning capacities are well-known. As pointed by Munkman.

Among High Court Judges have been, e.g., a doctor, a pharmacist, a sea-captain and a mathematician.

and it is pointed out that a member of a religious order, for example, may take a vow of poverty or do social work for nothing. Some others give up the salary offered to them to the charitable or medical organisation for which they work. The fact that the arrangement consists of not receiving remuneration is wholly collateral so far as the Defendant is concerned. (See the American case in McLauglin v. Chicago RR, (1966) 143 NW (2d) 32). An artist who might have been spending his time on some unremunerative but ''satisfying'' work was to be paid compensation on the basis of what he could have earned as a commercial painter. (See Keating v. Elvan Reinforced Concrete Co. Ltd, 1967 (3) All ER 6111. A loss of prospect of marriage may also lead to a loss of the prospect of being maintained by a husband. Such loss is akin to loss of future earnings. (See Moriarty v. McCarthy 1978 (1) WLR 155).

(h) Medical and Hospital Expenses & Transport

The claimant is entitled to recover fee for medical advice and for surgical operations, the cost of treatment and care in a hospital or nursing home, and the cost of artificial limbs (say leg or eye) and of medicines. The expense for medical advice is admissible even if the diagnosis proves to be wrong.

Our High Courts have accepted that medical expenses or related expenditure can be compensated for, even though the claimant is not able to file bills or vouchers either fully or partly provided there is other acceptable evidence of the reasonable expenditure that must have been incurred. The claimant is not bound to go in for free medical aid, even if the same was available for him. But, in case he receives free treatment under the Health Scheme available as per his service rules, he cannot claim the expenses.

Where however, the claimant is so seriously injured (as in the case of brain damage) that he has to be cared for in an institution, and is claiming the cost of his care as well as his lost earnings, there should not be any duplication. The living expenses must be deducted from the cost of nursing and care in the institution. (See Lim Poh Choo v. Camden and Islington Area Health Authority 1980 ACJ 486 (HL, England)).

It is also permissible to allow all the reasonable cost of transport to and from the hospital or other place where medical treatment is given, and also provide for the expense of visits by parents or others in the compensation. (See Donnelly v. Joyce 1974 ACJ 305 (CA, England)).

If the artificial leg or eyes or other parts are to be replaced or surgery is to be done at a later point of time again, the expenses therefor have also to be provided for.

(i) Nursing Services at Home

Expenses other than medical and hospital treatment come under this subheading. In cases of very serious injuries, the claimant may require nursing either by members of his family or by a skilled nurse for a period or for the rest of his life. In cases of paralysis or loss of hands or legs, constant attendance may be necessary. The expense for such nursing or attendant''s services are permissible. They have to be capitalised in the same manner as loss of future earnings. It is not necessary that there should have been any agreement between the injured and the family member (such as wife or mother etc.) (See Cunningham v. Harrison 1974 ACJ 218 (CA, England)). Lord Denning said:

When a husband is grievously injured-- and is entitled to damages--then it is only right and just that, if his wife renders services to him, instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them.

Of course, he should hold the amount in trust for her. If the wife gives up employment for this purpose, the earning she has lost may be a fair measure of the services. Donnelly v. Joyce 1974 ACJ 305 (CA, England), was a case of a child allowed to recover wages lost by his mother. An allowance may be given for the cost of specially adapting a house or car to the needs of an invalid but not for the basic cost of the house or car. (See Moriarty v. McCarthy 1978 (1) WLR 155).

In Cunningham v. Harrison 1974 ACJ 218 (CA, England), a tetraplegic was allowed to include remuneration for his wife''s services. In Croke v. Wiseman 1981 (3) All ER 852, the mother of a handicapped child had to give up her career as a teacher and the court allowed not only the value of her future loss of earnings but also of her pension rights.

(j) Extra or Special Diet and Nourishment

The value of the special diet or nourishment, that had to be provided to the injured or will have to be provided, can be included in the damages.

The cost of a holiday for convalescence would appear to be admissible, if taken on medical advice and at reasonable expense. The cost of a companion is also admissible if the injured is not fit to go alone. (See Munkman, p. 79).

(k) Employment of Substitute

If the Plaintiff is (say) a professional like a doctor or craftsman, the expense of obtaining the services of another to run his establishment will be admissible. Similarly, a housewife who is injured and disabled, can claim the cost of employing somebody to run the household.

(1) Damage to Property

Damage to property or loss thereof can be claimed as part of special damages. Loss of personal belongings or damage to car or bicycle can be claimed. If the article is repairable, the cost of repairs can be claimed and the cost of a hired vehicle (during the repair period) can also be included. (See Munkman, p. 84-85).

DEDUCTIONS AND SET-OFFS AGAINST

PECUNIARY LOSSES

(a) Voluntary Assistance by Friends, Relations, etc.

Voluntary charitable assistance rendered to the injured cannot be claimed as a deduction by the tort-feasor. The generosity of the public or of other donor, is an independent factor which has arisen subsequently to the accident and the wrong-doer cannot claim any deduction thereof. (See Peacock v. Amusement Equipment Co. Ltd. 1954 (2) All ER 689).

(b) Contributions to Insurance

In arriving at the net income before the accident or the net income afterwards, contributions of premia liable to be made towards insurance have to be deducted. (See Cooper v. Firth Brown Ltd. 1963 (2) All ER 31).

(c) Income Tax

The income tax payable for the sum covered by the loss of earnings or loss of future earnings, has to be deducted. The special damages (upto date of trial) will be the net earnings lost, after deduction of income tax payable thereon. Likewise, the general damages for the future loss of earnings will be on basis of net earnings after deduction of income tax payable thereon. (See British Transport Commission v. Gourley 1956 AC 185). However, if by reason of the accident, the Plaintiff suffered partial disability and his income got reduced in part, the deduction towards income tax must be related to the top part of the earnings alone which he has lost. (See Lyndale Fashion Manufacturers v. Rich 1973 (1) All ER 33).

(d) Collateral Benefits

It is now well settled that benefits received by the claimants from life insurance or other similar insurance, gratuity or provident fund cannot be deducted from the ultimate compensation. This position is made clear both in cases of compensation for fatal as well as other injury cases.

MULTIPLICAND

(For computing future pecuniary losses)

(a) Mode of Computation

This question arises in accidents resulting in death as well as those resulting in injuries, the difference being that in fatal cases the multiplicand will be the loss to the dependants while in injury cases, it will be the loss to the injured. Another aspect of the matter is that, in cases of fatal accident, the multiplicand is multiplied by multiplier (from Table), which is appropriate to the age of the deceased at his death while in injury cases, it will be the age at the trial, for the compensation upto the date of trial can be exactly computed in injury cases without any estimation.

In fatal accident cases, the multiplicand is arrived at by computing the annual loss to the dependants. For this purpose, the annual income of the deceased is computed and a deduction for his personal expenses is made--which, depending on the facts of the case may range from 1/3 or 1/2. (See Chairman, A.P.S.R.T.C. v. Shafiya Khatoon 1985 ACJ 212 (AP). The resultant amount is called the ''basis'' figure or ''datum'' which has to be multiplied by the appropriate multiplier to arrive at the loss of future earnings.

If the multiplier is chosen as on date of death for a person who is in service and is liable to retire, say at 60 years, on the basis of a Table of multipliers appropriate to those who retire at 60 years, it may become necessary to consider the future increases in the scales of pay also. In some cases, it is stated that the multiplicand computed on the basis of the salary on the date of death, may be slightly increased to give credit to the future increases in the salary. In some cases the multiplicand is further slightly increased to take into account the pension from (say) 60 years to end of life. This method will set at rest any controversy of discrimination in computing multiplicands for salary (plus pension) earning persons and professionals. Thus for these chances of future increases (or even decreases) the multiplicand is suitably adjusted. (See McGregor, 13th Edn., 1972, para 1105; Munkman, 1985, page 62). Kemp & Kemp (1982) alternatively suggest (21.002) increasing the multiplier slightly to give effect to the future increases in salary.

Similarly, in the case of injured persons, the multiplicand has to be first computed. Here it will comprise of the annual loss of earnings of the injured at the date of trial. Here also, the chances of higher earnings or pension can be taken into by first arriving at the multiplicand based on earnings at time of accident and increasing it to take into account these factors. (See Kemp & Kemp, 1982, para 6,005/1).

(b) Deduction from Multiplicand for Other Contingencies

In Chairman, A.P.S.R.T.C. v. Shafiya Khatoon, 1985 ACJ 212 (AP), this Court referred to Prof. Street''s estimate of losses due to other negative contingencies, e.g., marriage or remarriage, falling sick, loss due to holidays, strikes, unemployment, sickness, industrial disablement, etc., as ranking between 2% to 6%. As pointed out by Prof. Harold Luntz in his ''Damages for Personal Injury, Rhetoric, Reality & Reform, an Australian Perspective'', 1985 Current Legal Problems, p. 29 at pp. 35-36, there is no clear statistical evidence for this deduction. Deduction for these other contingencies is doubted in England while in Australia, it was totally put down in 1981 saying:

why count the buffets and ignore,the rewards of fortune?

In Canada, however, it is unfortunate that the deductions for these "other contingencies" has gone upto 25% or more and has been criticised by jurists like Prof Baverly McLachlin in ''What Price Disability, A Perspective on the Law of Damages for Personal Injury'', 1981 Can. Bar Rev., p. 1 at p. 31. As there is not much factual material for our conditions in India, in my opinion, it may not perhaps be necessary to deduct even this 2% to 6% for our purposes.

COMPUTATION OF NON-PECUNIARY LOSS

Amputation of leg

As the present case is one of amputation of one leg, firstly, it is necessary to compute the damages towards pain and suffering and loss of amenities. The accident occurred on 24.4.1978 and the trial took place in September, 1979. An estimate of non-pecuniary damages has to be made for loss of one leg as on 24.4.1978. The method of assessment by adopting conventional figures for such losses and upgrading the same from time to time, keeping in mind past inflation from dates of previous accidents in the given case, has been explained in P. Satyanarayana through his wife P. Mahalakshmi Vs. I. Babu Rajendra Prasad and Another, .

After making a broad survey of cases of amputation of leg, I have thought it useful to arrange the decided cases in the chronology of the date of accident, so that, if there are no cases at or about the time of the accident in this case, an upgradation of previous awards can be made by resort to the Tables of Wholesale or Consumer Price Index set out in P. Satyanarayana through his wife P. Mahalakshmi Vs. I. Babu Rajendra Prasad and Another, . The range of awards is given only for ''pain, suffering and loss of amenities'' in the following Table.

1.

2.

3.

4.

5.

1.

14.4.1961

6

1973 ACJ 41

Rs. 20, 000/-

2.

1961

4(fracture)

1977 ACJ 290 (SC)

Rs. 12, 000/-

3.

27.4.1962

child

1977 ACJ 403 (SC)

Rs. 12, 000/-

4.

25.1.1967

6

1979 ACJ 323 (Karnataka)

Rs. 10, 000/-

5.

25.1.1968

14

1980 ACJ 356 (Rajasthan)

Rs. 50, 000/-

6.

15.6.1969

23

1982 ACJ 503 (Delhi)

Rs. 20, 000/-

7.

18.8.1970

10(boy)

1981 acj 550 (Gujarat)

Rs. 10, 000/-

8.

31.1.1971

8

1975 ACJ 307 (Karnataka)

Rs. 10, 000/-

9.

10.10.1974

12

1979 ACJ 460 (Gujarat)

Rs. 25, 000/-

10.

1974

25

(both legs)

1980 ACJ 333 (Gujarat)

Rs. 35, 000/-

11.

4.7.1975

Minor

1982 ACJ 470 (J&K)

Rs. 50, 000/-

12.

5.9.1975

23(girl)

1984 ACJ 559 (SC)

Rs. 100, 000/-

13.

17.1.1976

16

1986 ACJ 720 (Rajasthan)

Rs. 50, 000/-

14.

24.5.1976

Middle

aged person

1986 ACJ 500 (P&H)

Rs. 100, 000/-

15.

11.1.1977

56

1980 ACJ 417 (Kerala)

(Pecuniary & non-pecuniary)

Rs. 172, 000/-

16.

20.6.1977

40

1986 ACJ 243 (P&H)

Rs. 50, 000/-

In the present case before me, the accident occurred on 24.4.1978 and the claimant is a girl aged 12 years, studying 6th class. So far as non-pecuniary damages for loss of limbs are concerned, there is no difference between the amounts to be awarded for rich and poor persons--vide P. Satyanarayana''s case, 1988 ACJ 88 (AP). There is also no difficulty in shifting damages claimed under one head to another or from pecuniary to non-pecuniary, as long as the total claim is not exceeded. (See P. Satyanarayana''s case (supra)). Thus, even though only Rs. 10,000/-has been claimed in the present case towards physical and mental agony, the same can be exceeded, provided the over-all limit of Rs. 80,000/- is not exceeded for both pecuniary and non-pecuniary damages.

In the light of the above awards, I am of the view that for an accident dated 24.4.1978 involving a loss of one leg, a sum of atleast Rs. 35,000/- is payable. No doubt items 11, 12, 13, 14 and 16 in the abovementioned statement are on the high side. Those judgments do not, however, specify how much is awarded towards pain and suffering, loss of amenities and loss of expectation of life and whether the sum includes damages towards other expenses even towards loss of probable earnings. However, bearing the awards in those cases and in the other cases referred to in the Table, a reasonable amount has to be awarded for loss of one leg. The method of listing out comparative awards is followed by several High Courts and in particular by the Gujarat High Court. I have also accepted this method in P. Satyanarayana through his wife P. Mahalakshmi Vs. I. Babu Rajendra Prasad and Another, . In the normal course, there must be separate awards for pain and suffering, loss of amenities or enjoyments of life, loss of prospects of marriage and loss of expectation of life. But as stated earlier, there is no separate plea or evidence, and I am awarding a total amount of Rs. 35,000/- under all these heads for non-pecuniary damages.

Coming to pecuniary damages, normally the award is made on actual losses for the period from the date of accident upto date of trial. But in this case the girl who was aged 12 years at the accident, was not still earning by October, 1979. There is no question of computing the past loss of earnings. However, the medical expenses, including cost of artificial limb, travel expenses upto Poona can be awarded. The lower court awarded Rs. 8,000/- in this regard.

Since then, another replacement of the artificial limb was also made recently for which the bills are filed before me and which I have marked as Exhs. X-l to X-4. The medical expenses, past and future, the travel expenditure to Poona, expense for staying in hotels at Poona, past and for future, are estimated at Rs. 16,000/-.

The claimant''s father is a lecturer in a college and it is possible that the claimant might have, but for the accident, got educated and earned something. If evidence had been adduced in this regard about her school record or the possible occupation she might have undertaken, a rough estimate of future losses could have been made atleast from her 22nd or 24th year. In that event, after ascertaining the multiplier and arriving at the total future loss of earnings, the percentage of disability has to be ascertained and that percentage has again to be computed out of the future total loss of earnings, to give present value of the future disability and its effect on future earnings. As there is neither adequate pleading nor evidence in this behalf, it is not possible to go through this exercise.

In the result, I am awarding Rs. 35,000/-towards non-pecuniary losses. Again, Rs. 16,000/- towards medical expenses and past expenses for artificial limb, travel and lodging expenses--past and future--is awarded. I am not able to compute loss of future earnings due to the partial disability for want of evidence. The computed damages come to Rs. 51,000/-. On this sum, interest at 12 per cent per annum is allowed as is being done by the Supreme Court, from date of filing of petition, i.e., 23.8.1978 till payment.

In the result, the appeal is allowed and in the place of the decree awarded by the Tribunal, a decree for Rs. 51,000/- with interest at 12 per cent per annum from 23.8.1978 is substituted. There will be no order as to costs.