The State of Madras vs James Appadurai and another

Ramaswami, J.—This appeal is directed against the decree and judgment of the learned Subordinate Judge of Coimbatore in O.S. No. 24 of 1952 The plaintiff is the son of a carpenter who has studied upto the fourth class. His elder brother is a cleaner earning Rs. 30/- a month. The plaintiff also wanted to become a fitter and the selling of ice-fruit by him was apparently only a temporary job till the plaintiff reached sufficient age to join the St. Michaels'' Workshop to learn the fitter''s job. In these circumstances on the date of the occurrence, viz., 10 a.m. on 16th July 1950 the plaintiff after returning from Church was sitting on the culvert near the main gate of the Forest College with one of his legs folded and resting on it and his other leg hanging down. Then a bus bearing MDC. 3967 belonging to the Arthur Hope''s College of Technology, now known as the Government College of Technology, crossed this culvert near the main gate of the Forest College, Coimbatore. There is no dispute that this bus was driven so rashly and negligently that it dashed against the culvert and hit the plaintiff''s left leg, which was hanging down, and severed it below the knee, thereby causing the plaintiff very serious injuries. The plaintiff fell down unconscious after the incident and he was taken to the Government Headquarters Hospital, Coimbatore, where he was treated as an inpatient for a period of 35 days. At the Hospital his left leg below the knee has been amputated and he is now moving about with crutches with difficulty. The Government bus driver charged under S. 338 Indian Penal Code was convicted and sentenced to sixth months R. I.

In these circumstances the plaintiff on the foot that he had become permanently incapacitated and that he is unable to go about his normal business, and much less to do any work, and that this was due to the rash and negligent driving of the bus by the second defendant, a servant of the first defendant, in the course of his employment as such servant, filed the suit, out of which this appeal arises, in the pauper form for recovery of Rs. 23,180/- from the defendants by way of damages.

The contentions of the defendants are reflected from the following issues framed in the case viz.:

Was the plaintiff guilty of. contributory negligence?

What is the correct amount of compensation payable to the plaintiff?

The learned Subordinate Judge found that the plaintiff was not guilty of contributory negligence and that a sum of Rs. 10,000/- would be the correct amount of compensation payable to the plaintiff. The State of Madras has appealed against this decree and judgment on the foot that the amount of compensation awarded by the learned Subordinate Judge erred on the side of being excessive and disproportionate to the damages caused to the plaintiff in this case.

The principles regulating damages for personal injuries can be gathered from the standard treatises on the subject and concerning which the case law in this country is thoroughly sparse.

The following passage from Mayne''s Treatise on Damages, Eleventh Edition, at page 485 under the heading, "Compensation for personal injury" is apposite:

Very little can be said with certainty as to damages for personal injuries inflicted by negligence. Loss of time during the cure, and expense incurred in respect of it, are of course matters of easy calculation. Pain and suffering undergone by the plaintiff are also a ground of damages. Any permanent injury, especially when it causes a disability from future exertion, and consequent pecuniary loss, is also a ground of damage. This is one of the cases in which damages most signally fail to be a real compensation for the loss sustained. In one case Parke, B., said: It would be most unjust if, whenever any accident occurs, juries were to visit the unfortunate Cause of it with the utmost amount which they think an equivalent for the mischief done. Scarcely any sum could compensate a labouring man for the loss of a limb, yet you do not in such a case give him enough to maintain him for life.

Mr. K. Kameswara Rao, in his Law of Damages and Compensation, Second Edition, at page 907, says:

Damages in this form of action are also very much ''at large'' and it will be futile to make an attempt to define the limits to which the amount may go. All that can be said is that the amount of compensation must be fair and reasonable, but an absolute compensation is not the true measure of damages.

Generally there are three heads under which damages can be recovered in this action; (i) personal suffering and loss of enjoyment of life; (ii) actual pecuniary loss resulting to and expenses reasonably incurred by the plaintiff; and (iii) the probable future loss of income by reason of incapacity or diminished capacity for work. Sriram v. Delhi Electric Tramway 49 I.C. 435, Vishnu Digambar Paluskar Vs. B.B. and C.I. Railway, .

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Personal suffering, damages for:-Under this head damages cannot be measured by any precise rule, and it is scarcely intended to be a full compensation for the injury sustained. The principle of ''restitution in integrum'' is an unattainable ideal in this respect. As Lord Halsbury observed, ''How is anybody to measure pain and suffering in monies counted. Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which represent such a thing as the pain and suffering which a person has undergone by reason of an accident. (In the Medina). (1900) A.C. 113. In Phillips v. London and South-Western Ry. Co. (1879) 4 Q.B.D. 406, Field, J., in charging the jury observed as follows in regard to this head of damage : ''Perfect compensation is hardly possible, and would be unjust. You cannot put the plaintiff back into his original position, but you must bring your reasonable common sense to bear and you must always recollect that this is the only occasion on which compensation Can be given. Dr. Phillips can never sue again for it. You have, therefore, now to give him compensation, once and for all. He has done no wrong; he has suffered a wrong at the hands of the defendants, and you must take care to give him full, fair compensation for that which he has suffered.

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From an examination of the cases, it will be found that substantially large amounts have been awarded by Courts as damages under this head, though not, of course, without a feeling of regret for their inability to grant more. It is, however, clear that the Court must be careful not to award an excessive amount, having regard to the defendant''s means," Mary Lennon Vs. Percy Fisher, , Sorabji v. Jamshed 21 I.C. 705, sum awarded Rs. 10000: Corporation of Calcutta v. Anderson ILR 10 Cal. 446, Rs. 6500; Kesowjee v. G.I.P. Ry. 6 Bom. L.R. 673 (P.C.), Rs. 6000; Prakash Kumar v. Harvey 36 Cal. 1021, Rs. 400: See also 2665 as granted in AIR 1928 346 (Lahore) , F. Gahan''s Law of Damages, (1936), pages 109-111:

Of recent years the large number of motor car accidents has made the damages for personal injuries caused by negligence of special importance. It is not challenged that the expense of reasonable medical treatment attendance and extra nourishment necessitated by the injuries can be recovered, as can the earnings lost during the period of incapacity. Pain and sufferings including, mental suffering because of the shortened expectation of life, are also taken into account. But unconsciousness negatives pain and suffering and where the expectation of life is shortened there must be evidence that knowledge of the fact increased the mental distress of the injured person,

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The assessment of damages for personal injuries is unusually difficult. Opinion will differ widely on the proper compensation for pain and suffering. Moreover, damages must be assessed once and for all. The possibility of a speedy and complete recovery has to be balanced against the possibility of serious complications in the future. It would be clearly wrong to award a plaintiff such a sum as would compensate him for the worst that could possibly happen, but the sum awarded should, in accordance with the general rule, put the injured party, so far as money can put him, in the same position as if he had not been wronged. Thus, regard would be had, in the light of the medical and other evidence, to the probable duration of suffering and disability." (The Edison 1931) p 230 at 237; Lieshosch Dredger v. S. S. Edison (1933) A.C. 449. Flint v. Lovell (1935) 1 K.B. 354, Slater v. Spreagg (1936) 1 K.B. 83, Rose v. Ford (1936) 1 K.B. 90 Phillips v. L and S. M. Ry. (1879) 4 Q.B.D. 406; 5 Q. B. D 78

The most exhaustive attempt to measure damages in. the several types of cases which arise has been made in the well-known American treatise Sedgwick Measure of Damages (4 vols.).

In their valuable monograph, The Quantum of Damages in personal Injury Claims, Kemp and Kemp, say at pp. 12 to 15:

If the damage suffered is capable of being calculated in terms of money, no difficulty in theory arises in the application of this rule. The person suffering the damages is entitled to full compensation for the pecuniary injury suffered. The difficulty arises in the case of heads of damage which cannot be calculated in terms of money. For, as the Earl of Halsbury, L. C. said in The Mediana (1900) A.C. 113.at p 116.

You very often cannot even lay down any principle upon which you can give damages... Take the most familiar and ordinary cases; how is any body to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident... But never the less the law recognises that as a topic upon which damages may be given.

The same applies to other heads of damage which cannot be measured in terms of money such as loss of a limb, loss of a sense, loss of expectation of life, etc. Faced with this problem the Courts have solved it by saying that the injured man should be given reasonable compensation. The Courts do not proceed upon the principle of attempting to give perfect compensation for such matters. It they did, there would be no limit to the amount of damages, for no sum would be equivalent for the loss, say, of a man''s eyes. What is a reasonable sum for any one of the innumerable items of damage which do not admit of arithmetical calculation can only be assessed in the light of previous awards made by the Courts in comparable cases.

It is submitted that the correct approach to the assessment of damages in personal injury claims can be summarised thus:

In so far as the injury results in actual pecuniary loss, past or prospective, the plaintiff should be awarded full compensation for that loss; but that does not mean that in the case of loss of prospective earnings the plaintiff is to be awarded his annual earnings multiplied by the number of years for which he could be expected to have worked, if he had not been injured. A simple calculation of that sort ignores many contingencies which would or might operate to reduce the plaintiff''s future earnings and so would mean that the plaintiff would get more than full compensation for his loss.

In so far as the injury results in damage which does not admit of assessment by arithmetical calculation, the plaintiff should be awarded fair and reasonable compensation, such compensation to be assessed in the light of previous awards in respect of comparable damage." (Monarch Steamship Co. v. Karlshamns (1949) A.C. 196; Admiralty Commissioners v. S.S. Susynahanna (1926) A.C. 655 at 661: Manley v. Rubby Portland Cement Co. 1952 C.A. No. 286 Brady v. Yorkshire Traction Ltd. 1953 O.A. No. 236; Crawford v. Erection Co. Ltd. 1953 C. A. No. 254; Rushton v. National Coal Board (1953) 1 Ail E. R. 314; British Transport Commission v. Gourley (1955) 3 All E. R. 796; Wilson v. Piley (1957) 3 All E.R. 525.

To sum up, the language of Lord Birkett, L.J. in his Foreword to the above treatise;

Any body who has ever had the duty of assessing damages either in the Courts or outside them is fully aware of the difficulties with which that duty is beset. Questions of liability (with which this book does not profess to deal) are often difficult enough, but the decisions of the Courts over many years and the invaluable work of the text book writers have provided a clear guide to the principle which governs liability. But it can never be possible to formulate any such clear guide in the assessment of damages, though certain principles have become dear enough. For each case depends upon its own peculiar and particular facts, and experience has shown that the facts can vary almost infinitely. It was this circumstance which led Lord Wright to say in Davies v. Powell Duffryn (1942) A.C. 601=All E.R. 657, that "there is generally, so much room for individual choice that the assessment of damages is more like the exercise of discretion than an ordinary act of decision." How often has a Judge said to himself when confronted with some terrible human tragedy-the complete loss of sight or the complete paralysis of the body, for example - what Byrne J, said openly in Rushton v. National Coal Board (1953) 1 Q.B. 495=(1953) 1 All E.R. 314. ''This is a case in which money cannot really compensate at all..." And yet compensation must be assessed in money even if it appears to be ''measuring the immeasurable'' as Romer, L. J. said when reviewing the assessment made by Byrne, J. in the same case.

Therefore, each case has to be decided on its own merits, guided by previous awards in respect of comparable damages. But unfortunately owing to totally different economic circumstances English decisions collected and discussed in Kemp and Kemp are of little use to us. The English decisions relating to damages arising from loss of one leg are: Mulready v. Bell (1953) 2 All E.R. 215 at 218, Bradley v. Bald Win Ltd., 1952 C.A. 32, Lee v. Manchester 1953 C.A. 277, Shearman v. Poll and (1950) 2 K.B. 43 (C.A.), Lindstedt 83 L.C. L.R. 19.

The nearest approach to this case is the one in Vinayaga Mudaliar v. Parthasarathy Aiyangar 7 L.W. 415. In that case, the trial Court awarded damages of Rs. 12,000/- and a Bench of this Court reduced it to Rs. 6,000/-.

The learned Subordinate Judge in this case basing himself upon this decision as the nearest approach to the present case, came to the conclusion that a sum of Rs. 10,000/- would be the correct amount of compensation to be paid here. He pointed out that this plaintiff has studied upto the 4th class and his elder brother is a cleaner earning Rs. 30/- a month and that the plaintiff was put in a temporary job as seller of ice-fruit till he could join the St. Michaels'' Workshop to learn the fitter''s job, whereas in the 7 Law Weekly case (Vinayaga Mudaliar v. Parthasarathy Aiyangar) the plaintiff''s father was practically a pauper earning nothing and his elder brother was earning Rs. 30/- a month, he being a failed matriculate, and that the conditions of life have since changed and the cost of living has now become much higher and that therefore the sum of Rs. 6,000/- awarded in the decision above cited would have to be considerably enhanced in order to meet the circumstances of this case. The learned Subordinate Judge also pointed out that more opportunities are now open to a young man in getting employment in workshops as cleaners, drivers of buses etc., than when the 7 Law Weekly case arose. We entirely agree with the learned Subordinate Judge that the sum of Rs. 10,000/- awarded by way of damages is a correct compensation and we see no reason to interfere with the same. This appeal is dismissed with costs.