Somnath Iyer, J.
(1) The plaintiff, who is the appellant before us, was an young man who was prosecuting his studies in the Government College, Mangalore, in the year 1950. On 5-8-1950, when he was proceeding to the Rationing Office in Mangalore on a bicycle with his friend P.W. 4, along a road known as Kadri road, a motor vehicle belonging to the Civil Supplies Department of the State of Madras, bearing Register No. M. S. C. 9714, which, according to the plaintiff, was being driven at an excessive speed, knocked him down in front Beedi Factory, situate in that road. As a result of that accident, the plaintiff lost consciousness which he partially regained in the hospital to which he was admitted as an inpatient about midnight on that date. He became fully conscious only five days after his admission to the hospital where he was treated for the injuries sustained by him during the accident.
(2) Ext. A-3, a certificate prepared by P.W. 2, who was the Medical Officer in charge of that hospital discloses that the injuries consisted of four lacerated wounds, one contused lacerated wound and one superficial abrasion in addition to multiple fractures of the skull bone. He was, an inpatient in that hospital for a period of two and a half months and, according to the evidence of P.W. 2, when he was discharged at the end of that period he had not completely recovered. His evidences was that the plaintiff was in a very critical condition when he was admitted to the hospital after the accident.
(3) The plaintiff, who complained that as a result of the accident there had been an impairment of his general capacity for work, brought the suit, out of which this appeal arises, against the then State of Madras for the recovery of a sum of Rs. 25,000/- as damages. He charged the driver of the motor vehicle, which knocked him down on the date of the accident, with rash and negligent driving to which the accident was attributable.
(4) The State of Madras repudiated the allegation that there was any rash and negligent driving on the part of its driver and claimed absolute immunity, as we understand the written statement produced on behalf of the State, for the wrong committed by its servant. It was alleged that the accident was also the result of contributory negligence on the part of the plaintiff.
(5) The learned Subordinate Judge recorded a finding that the accident was the result of rash and negligent way in which the motor vehicle was driven by the driver who was driving it. He negatived the contention urged on behalf of the State that there was any contributory negligence on the part of the plaintiff. He assessed the compensation payable to the plaintiff at Rs. 5,000/- but he declined to make a decree in favour of the plaintiff on the ground that the act committed by the driver, who was driving the motor vehicle was committed during the performance of a sovereign function of the State. He accordingly dismissed the plaintiff's suit. The plaintiff appeals. In the appeal his claim is reduced to Rs. 10,000/-.
(6) The correctness of the finding recorded by the Subordinate Judge that there was no contributory negligence and that the motor vehicle was rashly and negligently driven by the driver at the time of the accident is not questioned in this Court on behalf of the State of Mysore which has now taken the place of the State of Madras after the reorganisation of State. What has, however, been urged on behalf of the State is that the finding of the Subordinate Judge that the State was not liable for the wrongful act committed by the driver of the State of Madras is not liable to be disturbed. It is also urged that the assessment of compensation made by the Subordinate Judge is excessive.
(7) It must, at the outset, he pointed out that the learned Government Pleader, on behalf of the State, does not contest the position that the State has no absolute immunity from liability for a tort committed by its servants. The only ground on which exemption from liability was claimed in the Court below was that the tort committed by the servant of the State was committed when he was performing a sovereign function of the State. That contention was not raised in the written statement produced by the State. Nor did the State during the evidence, produce any material which could justify the conclusion that the accident happened when the servant of the State was performing one of its sovereign functions--a contention urged for the first time in the Court below after the trial and during the arguments. But nevertheless the Subordinate Judge upheld that contention. He depended in support of his conclusion on the evidence given by P.W. 1, who was a Station-house Officer in the Town of Mangalore, who stated in his evidence that the motor vehicle in question belonged to the Civil Supplies Department. On the basis of this evidence, that is what the Subordinate Judge observed in paragraph 12 of his judgment:
'As the working of the Civil Supplies Department and running it is a sovereign function of the Central Government and it was entrusted to the Provincial Government under the powers conferred upon it by Act 24 of 1946, the State Government of Madras could not be made liable or sued in this case, and in any event it is not liable in tort because of this rule of Sovereign powers which gives immunity to the State from being sued for torts, in that connection.'
(8) Ext. A-5 is a notice issued by the plaintiff to the State of Madras on 25-7-1951, under the provisions of Section 80 of the Civil procedure Codes before the institution of the suit. In that notice, the plaintiff stated that the Motor Vehicle belonged to the Civil supplies Department of the Government of Madras and this allegation was never contradicted at any stage, nor was it suggested to P.W. 1, who gave evidence that the Motor Vehicle belonged to the Civil Supplies Department, that the Civil Supplies Department which owned the vehicle was not a department of the State of Madras. On the contrary the effect of what P.W. 1 stated in his evidence was that the Government of Madras in its Department of Civil Supplies was purchasing rice from landlords and selling it to the public. In his cross-examination it was elicited that the station wagon was used for carrying passengers and that it was also being used by the officers, presumably of the Civil Supplies Department, for their official tours.
(9) The State of Madras produced no evidence in the case. No one was examined on its behalf. It produced no material justifying the view that the Civil Supplies Department functioning in the State of Madras was performing sovereign functions of the State. What was material for the purpose of the case whether at the time of the accident the driver of the Motor Vehicles who was driving it was performing what may be described as a sovereign function of the State. It was not disputed on behalf of the State that when the accident happened the driver was driving in the course of his employment. But the State in its written statement did not specify what the nature of that employment was.
(10) Since it is not disputed, and properly too, that the State did not have any absolute immunity from liability for the tort committed by its servants, it was for the State to plead the facts on the basis of which it could have claimed immunity. If it was the intention of the State to contend that such immunity was available to it in the present case on the ground that the accident happened during the exercise of a sovereign function of the State, that plea should have been taken in the written statement and the facts which would justify that plea should also have been set out therein. That was not done. No officer of the State was examined by it to give evidence about it either. In those circumstances, it appears to us that the Subordinate Judge's finding that the accident happened while a servant of the State of Madras was performing a sovereign function was no more than a mere speculation. The question as to whether the driver, who was a servant of the State, was performing a sovereign function or not was not a pure question of law, but was a mixed question of law and fact. It was for the State to allege and prove the facts which would justify the view that the function that its servant was performing was a sovereign function.
(11) Mr. Motaiya the learned Advocate for the plaintiff, and Mr. Venkataswami the learned Government Pleader, both presented before us elaborate arguments on the question as to whether or not the function which the Civil Supplies Department was performing in the State of Madras could be regarded a sovereign function of the State. One of the contention urged on behalf of the plaintiff was that the Civil Supplies Department was engaging itself in no more than a mere commercial or mercantile activity inasmuch as it was purchasing from the landlords food grains, and selling them to the citizen of the State. The learned Government Pleader has equally strongly contended that the activity in which the Civil Supplies Department was engaging itself was a vital function which could be performed only in the exercise of the sovereign function of the State, viz. the procurement of food, which was so essential to the life of the community.
(12) What really is a sovereign function of the State is, in our opinion not capable of being defined by a neat combination of words. Whether a particular function is a sovereign function or not depends upon the nature of that function, the circumstances attendant upon its exercise and the source of the power which authorities its exercise. The question was neither raised nor discussed in that way in this case. That being the position, the Subordinate Judge was not, in our opinion, justified in embarking upon a discussion into a question which largely depended upon the investigation of facts, particularly in the absence of necessary pleadings or evidence.
(13) The question as to whether, after the commencement of the Constitution, the rule that in the performance of the executive functions of the State, the State can claim immunity from liability for tort committed by its servants on the principle that a particular executive function was really in the nature of a sovereign function is, in our opinion, not free from difficulty. On this question we express no opinion in this appeal.
(14) The finding of the Subordinate Judge, that the accident happened during the exercise of a sovereign function by a servant of the State cannot, therefore, in our opinion, be sustained. The result of the reversal of that finding of the Subordinate Judge would be that the State of Madras was liable to pay compensation to the plaintiff for the injury caused to him as a result of the accident.
(15) But, in the Court of the Subordinate Judge, a new plea was taken during the argument that the plaintiff should have sued the Union of India and not the State of Madras. This plea was again based on the contention that the Civil Supplies Department of the State of Madras was only exercising an authority delegated to it by the Central Government under a Central Act. The question as to whether that was the only power which the Civil Supplies Department was exercising or whether it was exercising other powers in the State on behalf of the State Government was not one on which there was any plea; nor was any evidence produced in that regard. That being so, it was not open to the State, at that very late stage, to raise that new contention which was again not a pure question of law.
The Subordinate Judge was of the view that the plaintiff had sued the wrong party inasmuch as he had not sued the Union of India. With this view, we are entirely unable to agree. We must, therefore, hold that the State of Madras has failed to establish that the Civil Supplies Department, to which the motor vehicle belonged, was not a Department of the 'State of Madras but was exercising only the powers of the Central Government delegated to it, as contended.
(16) The only question that remains is, the assessment of damages payable to the plaintiff. The Subordinate Judge, as we have mentioned, assessed those damages at Rs. 5000/-. It is in our opinion, indisputable that the plaintiff is entitled to be compensated for the pain and suffering undergone by him as a result of the accident as also in respect of the general impairment of his health, if there has been any such impairment and reduced capacity for work, if there has been lowering of his endurance or stamina in that regard. Ex. A-3, the Wound Certificate, prepared by P.W. 2 on 16-8-1950, refers to the serious injuries caused to the plaintiff during the accident which consisted of a lacerated wound 2' x 1/4' scalp deep, in the back of the head a lacerated would 4 1/2' x 1/8' above the left ear, a contused lacerated wound over the middle upper lip, a lacerated wound over the middle upper lip, a lacerated wound in the left thigh and another lacerated wound in the left elbow. Besides these injuries, there was also an abrasion in the left elbow. Besides there injuries, there was also an abrasion in the left elbow. But the far more serious injuries were the multiple fractures of the skull bone.
The evidence of P.W. 2 was that the condition of the plaintiff was extremely critical at the time of his admission to the hospital and that even when he was discharged after a period of 2 1/2 months he had not completely recovered. He gave evidence that the injuries were such as might result sometimes in paralysis. In his cross-examination, it was elicited that when he was discharged from the hospital although he had been cured, he was discharged from the hospital although he had been cured, he was asked to take rest. But, in his re-examination, be explained that the plaintiff was discharged from the hospital since nothing more could possibly be done by the hospital authorities in regard to the injuries. It is also clear from the evidence of this witness that the plaintiff was in an unconscious condition after he was knocked down by the motor vehicle.
(17) The plaintiff himself gave evidence that for about two months he was not able to rise from his bed and had been suffering from unbearable pain. He stated that he found it difficult in the excretion of his faeces and the discharge of urine and that he found it impossible to property close his right hand and had lost his sense of touch and taste. During the period he was in the hospital he was not able to open his mouth or use his tongue.
(18) After his discharge from the hospital, he proceeded to state that he was unable to appear for the intermediate examination for which he was studying and found it difficult even to walk. He was advised to take only liquid diet and the moment he commenced to read anything, his eyes would become watery and he would develop a head-ache. Even on the date of his examination, his evidence was that he had not recovered his old strength and that although he had joined the Ayurvedic College in Mysore after abandoning his studies in the Mangalore College after an interval of two years, his capacity for work had become considerably reduced. In this cross-examination, it was elicited on behalf of the State that when he was a student in the Ayurvedic College in Mysore, a test was conducted in September 1952 which lasted 45 minutes and that he was able to write during that test only for a little over half an hour.
Almost towards the end of the cross-examination a very strange suggestion was made on behalf of the State to which the plaintiff's answer, as recorded, reads: 'I deny that knowing that I will not be able to write and pass the examination, I have joined Ayurvedic College.' It is manifest from the answer which the plaintiff gave, that what was suggested on behalf of the State to him was that when he joined the Ayurvedic College, he was not in a position to write and pass the examination such as might be conducted by the College which, according to the other evidence, could be attributed only to the injuries which he sustained during the accident.
(19) The learned Subordinate Judge believed the evidence of the plaintiff, although he pointed out that it would have been far more satisfactory if the plaintiff had produced medical evidence to establish the impaired condition to which his health had become reduced as a result of the accident. This is what he said in paragraph 15 of his Judgment:
'I am therefore convinced that even though there is no medical evidence before me plaintiff has suffered severe injury and he has lost the senses of touch and taste and is unable to write or read as a student is expected to do and is also partially paralytic.'
The plaintiff's evidence, supported as it was in material particulars, by that given by P.W. 2 remained uncontradicted. We do not find any sufficient reason nor was only pointed out to us as to why we should disbelieve the plaintiff's testimony in that regard. The evidence on the record in our opinion establishes beyond any doubt that while after the accident and during the period he was in the hospital in Mangalore, he must have undergone considerable pain and suffering and physical agony, his general health continued to be in a substantially impaired condition even after his discharge from the hospital, as a result of which his capacity for work had also become to a considerable extent reduced.
He was as the evidence discloses, obliged to determine his studies for a period of two years before he joined the Ayurvedic College in Mysore, and even after he joined the Ayurvedic College, he does not appear to have been successful in the prosecution of his studies there on account of his debilitated health. Now it is well settled law that the plaintiff in those circumstances, is not only entitled to be compensated for the pain and suffering which he underwent immediately after the accident but also for the general impairment of his health and the diminution in his capacity for work, besides the special damages awardable to him for the expenses which he had to incur for his treatment during the period he was an inpatient in the hospital.
(20) In the well known Mediana's case, (Mediana v. Comet) 1900 AC 113, Lord Halsbury, while dealing with the question as to whether damages are awardable for the pain and suffering undergone by a person injured in an accident,and this at p. 116 of the report.
'Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. In truth, I think it would be very arguable to say that a person would be entitled to no damages for such things. What manly mind cares about pain and suffering that is past? But nevertheless the law recognises that as a topic upon which damages may be given.'
The learned Government pleader has further argued before us that even if we should come to the conclusion that the plaintiff was entitled to damages, there was no material on the basis of which the assessment of those damages could be correctly made. He has told us that the plaintiff produced no evidence at all on the basis of which these damages could be measured. It is difficult to understand what kind of evidence a person in the position of the plaintiff in this case should have produced in that regard besides that which he gave which, if believed, would establish that besides his having undergone considerable pain and suffering there had been almost a permanent injury to his physical condition and to his capacity for work. In a case like this, the assessment of compensation should necessarily be a matter to some extent, of conjecture.
(21) As pointed out by Singleton L. J. in Rushton v. National Coal Board. 1953-I All ER 314, in an action for personal injuries it is impossible. In view of the difference in the facts of individual cases, to standardise the amounts of damages which should be awarded; damages should be assessed so as, while bearing in mind the special facts of the case under consideration to accord with the general run of assessments made by the courts over a substantial time in comparable cases. At p. 316 of the report, he referred to the following passage in Bird v. Cocking and Sons ltd. I.e., (1951) 2 T. L. R. 1260 at p. 1263.
'The assessment of damages in cases of personal injuries is, perhaps one of the most difficult tasks which a judge has to perform, and certainly the task is no lighter when the appellate court is asked to reconsider the assessment made by a judge in the court below. The task is so difficult because the elements which must be considered in forming the assessment in any given case vary so infinitely from other cases that there can be no fixed and unalterable standard for assessing the amounts for those particular elements. Although there is no fixed and unalterable standard, the courts have been making these assessments over many years, and I think that they do form some guide to the kind of figure which is appropriate to the facts of any particular case it being for the judge, or for the appellate court if they are reviewing the matter, to consider the special facts in each case; for I agree with Mr. Veale that one case cannot really be compared with another. The only thing that can be done is to show how other cases may be a guide, and when, therefore, a particular matter comes for review one of the question is how does this accord with the general run of assessments made over the years in comparable cases?' When we look at comparable cases in this country, it is seen that in Vinayaga Mudaliar v. Parthasarathi Ayyangar, AIR 1919 Mad. 1067, the plaintiff who brought an action for physical injuries caused to him by the defendant's negligence was a lad of 16 who was a student in one of the lower forms of his school and sustained service injuries by the fall of the door of a temple of which the defendant was a trustee. It was proved in that case that the boy was dull and not very intelligent and that his father was a pauper while his brother was earning Rs. 30/- a month. The injuries sustained by the plaintiff made him unable to walk by himself without crutches or human aid and deprived him of his control of the muscles.
The trial Court awarded him Rs. 12,000/- as damages which was considered to be somewhat excessive by the High Court in an appeal by the defendant. The damages were reduced to Rs. 6,000/-. In Gwalior and Northern India Transport Co. Ltd. v. Dinkar Durga Shankar Joshi, (S) AIR 1955 Madh B. 214, the plaintiff who brought an action for the recovery of compensation in similar circumstances, had sustained injuries which resulted in a fracture of lumber vertebrae. Those injuries produced a lump over his shoulder as a result of which his endurance for work and his earning capacity had become diminished. He was a practising lawyer and the evidence in the case was that his income was about Rs. 1,000/- per month. According to the medical evidence, the vertebra was immobilized in plaster jacket after correction with hyper extension and if the plaintiff had taken that treatment, there was a likelihood of his being cured completely and that even otherwise he had achieved 80 per cent recovery. The injuries sustained by him resulted in loss of concentration and inability to put in hard work.
The trial Court awarded him Rs. 10,000/- as damages for the pain and suffering undergone and a sum of Rs. 20,000/- as compensation for the impairment of his health and for the resulting shortening of the expectation of life and reduced capacity for work. In the appeal preferred by the defendant from that decree, the learned Judges of the High Court declined to interfere with the assessment of damages so made. In the State of Madras v. James Appadurai, : AIR1959Mad369 the plaintiff who was the son of a carpenter and who was a student in one of an accident which was brought about by the rash and negligent act of the driver of a motor vehicle belonging to the State. The Subordinate Judge who tried the suit awarded a sum of Rs. 10,000/- as damages. The High Court refused to disturb that decree.
(22) We must now refer to a decision of the Court of appeal in England in Wilson v. Pilley, (1957) 3 All E. R. 525. That was a case where the plaintiff, a married woman aged 21, was knocked down by the defendant who was riding a motor cycle. She received a penetrating would on her right ankle and minor injuries to her left shin. On the same day she underwent an operation and her leg was immobilised in a plaster which was removed at the end of October. She was away from her work for eight weeks. About two months after the date of the accident, her right ankle was still staff and had a tendency to swell; the plaintiff was likely to have for the rest of her life some discomfort in cold and wet weather, and as a result of her injury, she had to give up the sport of 'motor cycle scrambling' which she had formerly enjoyed in the company of her husband. In an action for damages for negligence, she claimed 300/- by way of damages; the county Judge awarded only 75/- ; it was enhanced by the Court of Appeal to 200/-.
(23) It is seen from a review of the cases to which we have referred that, while the injuries sustained by the plaintiff in the present case were not as serious as those sustained in the Madras case, they were not so simple as those sustained to 1957-3 All ER 525. The nearest approach to the case before us is the Madhya Bharat case. If, in the year 1919, for the injury sustained by the plaintiff in the Madras case, what was awarded as damages was a sum of Rs. 6,000/- the damages which would have been now awarded in a case of that kind, when the purchasing power of the rupee has become so low, would have been undoubtedly much more substantial.
(24) The Subordinate Judge appears to have thought that the only compensation payable to the plaintiff was that referable to the impairment of his health caused by the accident. That the plaintiff was also entitled to compensation for the pain and suffering undergone by him and for the injury to his career caused by reason of the impairment of his health and his capacity for work, does not appear to have occurred to the Subordinate Judge while he assessed the damages. He did not also award any special damages separately for the expenses which the plaintiff had to incur during the period when he was an inpatient in the hospital at Mangalore. It appears we should, therefore, now proceed to determine the compensation property payable to the plaintiff having regard to those considerations.
(25) Although the plaintiff produced no accounts in respect of the expenses incurred by him for his treatment in the hospital at Mangalore, there can be no doubt that he must have incurred some expenditure for that purpose. The hospital into which he was admitted as an in-patient was a hospital in the town of Mangalore where he had to stay for ten weeks. Having regard to the nature of the injuries sustained by him and the circumstances of the case, it appears to us that we should assess the special damages payable to him in that regard at a sum of Rs. 1,500/-. We are also of the view that we should award a sum of Rs. 6,000/- as damages for the pain and suffering undergone by the plaintiff and for the general impairment of his health and for his reduced capacity for work. The total amount payable to him as compensation should therefore, be assessed at Rs. 7,500/-, and this sum should carry interest at 6 per cent per annum from the date of the decree of the trial Court. In reversal of the decree of the Subordinate Court. In reversal of the decree of the Subordinate Judge, a decree should now be made for the payment of the above sum to the plaintiff.
(26) In regard to costs, we direct that the defendant shall pay to the plaintiff his costs as calculated in the following manner:
(27) In this Court as well as in the Court below, the plaintiff will be entitled to the which of the Court-fee paid by him on the plaint and on the memorandum of appeal. The Advocate's fee payable to him will be on his success.
(28) Time for payment, three months.
(29) Appeal allowed.