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Bombay State Road Transport Corporation and anr. Vs. Narayan Pandurang Kamath - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberRegular Appeal (B) No. 315 of 1956 (with cross objections)
Judge
Reported inAIR1963Mys161
ActsRoad Transport Corporation Act, 1960 - Sections 3, 34 and 47A; Bombay State Road Transport Corporation Order, 1956 - Sections 34; Code of Civil Procedure (CPC) , 1908 - Order 22, Rules 10 and 11
AppellantBombay State Road Transport Corporation and anr.
RespondentNarayan Pandurang Kamath
Appellant AdvocateAdv. General
Respondent AdvocateN.R. Naik, ; M.R. Kamath and ; P.K. Shyamasunder, Advs.
Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 439 (2): [k. sreedhar rao & l. narayana swamy, jj] cancellation of bail order of session court cancelling the bail without there being an application for cancellation and directing judicial custody of the accused held, without an application under section 439(2) cr.p.c, by the state and proper opportunity for the accused to meet the case, it is not proper for the sessions court to have cancelled the bail and remand the accused to judicial custody. it is evident that the state has not made any application for cancellation of bail. however, as a matter of routine in the objections statement, the state public prosecutor made allegations that the accused was not prompt in appearing before the court on hearing dates. the.....b.m. kalagate, j.1. the suit out of which this appeal arises was instituted by the respondent-plaintiff claiming rs. 71,200/- as damages for the injury sustained by him in a bus accident causes by the negligence of the appellants-defendants. the trust court awarded him rs. 35,200/- as damages, and hence this appeal by the defendants.2. the plaintiff instituted the suit (special jurisdiction civil suit no. 5 of 1954) in the court of the civil judge senior division, karwar, against the defendants. the bombay state road transport corporation is defendant 1, and defendant 2 is its driver.3. it is the plaintiffs case that on 29th march 1954 defendant 1 used the passenger bus no. byl 9436 for carrying passengers from hubli to ankola. defendant 2, the diver, was put on duty to drive the said.....
Judgment:

B.M. Kalagate, J.

1. The suit out of which this appeal arises was Instituted by the respondent-plaintiff claiming Rs. 71,200/- as damages for the injury sustained by him in a bus accident causes by the negligence of the appellants-defendants. The trust Court awarded him Rs. 35,200/- as damages, and hence this appeal by the defendants.

2. The plaintiff instituted the suit (Special Jurisdiction Civil Suit No. 5 of 1954) in the Court of the Civil Judge Senior Division, Karwar, against the defendants. The Bombay State Road Transport Corporation is defendant 1, and defendant 2 is its driver.

3. It is the plaintiffs case that on 29th March 1954 defendant 1 used the Passenger Bus No. BYL 9436 for carrying passengers from Hubli to Ankola. Defendant 2, the diver, was put on duty to drive the said bus. The plaintiff was one of the passengers in that bus. According to the plaintiff, the bus was not roadworthy even before it left Hubli. Its right front spring was not in proper order and had been damaged. Defendant 2, the driver, had also the knowledge that the bus was un roadworthy. But, in spite of this, defendant 1 put the bus on the road, and defendant 2 undertook to drive the same from Hubli to Ankola. In the course of the journey, when the bus reached the narrow deviation road, some five miles from Ankola, the main leaf of the front right spring of the bus completely gave way, with the result that the bus deflected to the right and ran off the road and overturned on its side on the right side slope of the road bank. The plaintiff was, at that particular moment, occupying the front seat near the right side window of the bus. Most of the passengers sitting to his left fell on him and his right fore-arm and palm were caught between the top of the bus and the ground. He was in that position for nearly 2 to 3 hours and had to undergo great pain and suffering till the bus was rescued. He was then taken to his family doctor and thereafter to Karwar, for treatment. The doctor found that there were compound fractures. His palm was then operated upon. When he recovered, he found that his right palm from his wrist joint had become permanently impaired.

4. He further alleges that the accident in which he suffered this injury was caused by the negligence of both the defendants, in that defendant 1 ought not to have put on the road the bus which was un roadworthy knowing that it was so, and defendant 2 ought not to have undertaken to drive the said bus which was not roadworthy, and further, when the spring gave way at Hobbul, defendant 2 ought not to have tried to drive the bus any further. He tried to drive the bus after making some repairs and finally brought about the disaster which resulted in the injury caused to his (plaintiff's) fore-arm. Both the defendants are, therefore, liable to compensate the plaintiff for the injury sustained by him. He thus claimed Rs. 71,200/- as damages as follows:

(1) Rs. 1,200/- on account of expenses incurred for medical treatment;(2) Rs. 10,000/- for pain and suffering and for theloss of future amenities as his rightfore-arm and palm were disabled anddisfigured and rendered unfit forwork permanently;(3) Rs. 60,000/- as damages on account of loss offuture prospects and business.

5. Defendants 1 and 2 filed separate written statements but their defence is the same.

6. They denied that the bus was un roadworthy and that the second defendant was negligent in driving the same. They contended that due to the unexpected breakage of the main leaf of the front right spring, the bus deviated towards the right side of the road and by the time defendant 2 could stop it, it went towards the slope by the side of the road and fell down on its right side by the sudden deflection of its centre of gravity. Therefore they contended that it was an unavoidable accident in spite of due care exercised by the second defendant and that, therefore, they were not guilty of negligence.

7. They further contended that the plaintiff was guilty of contributory negligence, in that, while he was sitting on the extreme right side of the bus, he was putting his hand outside the window of the bus contrary to the specific Instructions notified in the bus. None of the passengers suffered any injury; the plaintiff alone suffered the injury and that is because of his negligence; he is, therefore, not entitled to any damages.

8. They also contended that the quantum of damages claimed by the plaintiff Is excessive.

9. On those pleadings, the trial Court raised as many as 19 issues; but when we look at them, we find only three main issues in controversy between the parties,

viz. (1) whether the plaintiff proves that the alleged accident happened due to the negligence of the defendants;

(2) whether the plaintiff was guilty of contributory negligence; and

(3) What is the amount or quantum of damages the plaintiff would be entitled to, in case he succeeds?

10. The learned Judge, on the evidence, found that the defendants were guilty of negligence and that the plaintiff was not guilty of any contributory negligence; as to the quantum of damages, he allowed the first two items as claimed by the plaintiff, but, as to the future loss of earning, he awarded Rs. 24,000/- only; accordingly, he passed a decree in favour of the plaintiff for Rs. 35,200/- in all.

11. Defendants, feeling themselves aggrieved by this decree, preferred an appeal in the High Court of Judicature at Bombay where it was numbered as 'First Appeal No. 282 of 1956'. Plaintiff also filed cross-objections against the decree disallowing his claim to the extent of Rs. 36,000/-. After the reorganisation of States, this appeal with the cross-objections stood transferred to this Court where it is numbered as R.A.(B) 315 of 1956.

12. As we have stated, the first defendant in the original suit is the Bombay State Road Transport Corporation. The learned High Court Government Pleader has made an application to this Court, being I. A. No. 1, claiming to delete the name of the first defendant viz. the Bombay State Road Transport Corporation, and to substitute in its place the Mysore State Road Transport Corporation, Bangalore. In his affidavit, he has stated the provisions under which he claims the substitution of the same.

13. Under Section 47-A of the Road Transport Corporation Act 64 of 1950, on the submission of a scheme by the Mysore Government, Government of India passed an Order known as the Bombay State Road Transport Corporation Order of 1956 which came into effect on 1-1-57. The said Order in its residuary clause 8 provides that the benefit and burden of any assets or liabilities of the Bombay State Road Transport Corporation in the Karnatak Area shall pass to the Government of Mysore. The State Government under Section 3 of the said Road Transport Corporation Act have established the Mysore State Road Transport Corporation which is functioning since 1-8-1961. By a notification of the said date, the State Government acting under Section 34 of the said Act transferred the management to the Corporation vesting in it all the properties and assets of the existing Mysore Government Road Transport Department. It is, therefore, stated that the Mysore State Road Transport Corporation is the successor in interest of the Mysore Government Road Transport Department and hence the said Corporation should be substituted in place of the Bombay State Road Transport Corporation, Bombay.

14. This Court, relying on the decision of the Supreme Court in G. Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, reported in : AIR1959SC308 , has held in Writ Petitions Nos. 1019 and 1020 of 1961, D/-5-10-1961 (Mys.) that the Mysore State Road Transport Corporation is the successor in interest of the Mysore Government Road Transport Department.

15. Mr. Shamsunder, the learned Advocate for the respondent, has nothing to say on merits but only states that the application Is a belated one. We cannot forget that this is a transferred appeal after the reorganisation of States and the substitution has to be made in the circumstances stated above. We do not think that there is any force in the objection. The Corporation being the successor in interest of the Mysore Government Road Transport Department must be brought on record. We, therefore, allow I. A. No. I and direct that the record shall be amended substituting the Mysore State Road Transport Corporation in place of the first appellant, viz. the Bombay State Road Transport Corporation.

16. As stated above, the defendants have appealed against the award made in favour of the plaintiff, and the plaintiff has filed cross-objection in respect of disallowance of his claim. Thus the whole matter is open before us for consideration.

17. The learned High Court Govt. Pleader, in the course of the hearing of the appeal, took us through the entire evidence and, after commenting on the same and after referring to the decision in Gobald Motor Service Ltd. v. R.M.K. Veluswami, reported in : [1962]1SCR929 , and the decision in Gwalior and Northern India Transport Co. Ltd. v. Dinkar Durga Shankar, reported in (S) AIR 1955 Madh B. 214, where the application of the maxim res ipsa loquitur has been considered, he thought it reasonable -- and, in our view, quite rightly -- not to challenge the finding of the trial Court on the issue of negligence of the defendants. He did not also think it worthwhile to challenge the finding that the plaintiff was not guilty of contributory negligence. He, therefore, confined his appeal only to the quantum of damages awarded to the plaintiff.

18. We thus have to proceed on the finding that the defendants are guilty of negligence and that the plaintiff suffered injuries caused by the said negligence and that he is entitled to have compensation for the injuries so sustained.

19. We have already stated how the plaintiff has claimed Rs. 71,200/- as damages. Before we proceed to consider the question as to the quantum of damages to which the plaintiff is entitled, we would like to consider the general principles of law relating to the measure of damages for personal injury caused by negligence.

20. In Halsbury's Laws of England, Third Edition, Vol. 11, we find at page 255, paragraph 427 dealing with personal injury, it is stated that in a claim for damages for personal injury, when caused by negligence, the damages are, apart from special damages, at large, and will be given for the physical injury itself and, in case of loss of limb, disfigurement or disablement, for its effect upon the physical capacity of the injured person to enjoy life, as well as for his bodily pain and suffering or for shock or injury to health. Such damages cannot be a perfect compensation but must be arrived at by a reasonable consideration of all the heads of damages in respect of which the plaintiff is entitled to compensation and of his circumstances making allowances for the ordinary accidents and chances of life. It is also stated that in addition to such general damages special damages may be recovered for pecuniary loss sustained, whether it be for expenses properly incurred in medical attendance, or for any other loss or injury actually suffered which follows in the ordinary course of things from the fort.

21. This is what Mayne and McGrogor on Damages in their 12th Edition para 760 have to say regarding damages for personal injury.

'The plaintiff can recover, subject to the rules of remoteness and mitigation, full compensation for the pecuniary loss that he has suffered.'

We may as well refer to the well-known case of Phillips v. London and South Western Rly. Co. reported in (1879) 5 CP D 280 where Prett, L. J. has stated :

'The action is for breach of a contract to carry a passenger safely and securely, and the only damages which can be obtained are damages for the breach of that contract. The fundamental proposition no doubt is, that the plaintiff is to receive such damages as will compensate him for the injury ensuing from the breach of the contract. That injury is of a complicated nature; the plaintiff has received a bodily hurt, and also he has sustained a pecuniary loss.'

22. In a recent decision, Wise v. Kaye, reported in 1962-2 WLR 96, Sellers L J. has stated thus at page 104:

'The first element or ingredient of damages is the physical injury itself which gives rise to all the consequential claims which may arise from the injury, and the physical injury itself has always, in my opinion, been a head of claim which has justified and required in law an award of damages according to the extent, gravity and duration of the injury.'

Reference is also made with approval to the observations of Cockburn C. J. in (1879) 5 C P D 280 which are to the following effect:

'We think that a jury cannot be said to take a reasonable view of the case unless they consider and take into account all the heads of damage in respect of which a plaintiff complaining of a personal injury is entitled to compensation. These are the bodily injury sustained; the pain undergone; the effect on the health of the sufferer, according to its degree and its 'probable duration as likely to be temporary or permanent; the expenses incidental to attempts to effect a cure, or to lessen the amount of injury; the pecuniary less;'

23. Thus we find from the foregoing observations that what the plaintiff is entitled to is the compensation for the injury sustained by him, and the injury, as stated by Bertt L. J., is of a complicated nature. The plaintiff has received bodily hurt and also he has sustained a pecuniary loss. The heads of compensation may, therefore, differ from case to case but the general law seems to be as stated above.

24. We will now proceed to consider the plaintiff's claim for damages in the light of the general principles of law.

25. The first head of damage claimed by the plaintiff is 'medical expenses.' He has claimed Rs. 1,200/-. In view of the evidence led by the plaintiff, the learned High Court Govt. Pleader did not challenge the award of this item made to the plaintiff by the trial Court. Therefore the decree passed by the trial Court in that regard shall stand.

26. The learned High Court Govt. Pleader, however, has challenged the correctness and the quantum of damages claimed by the plaintiff under the other two heads. We, therefore, proceed to consider the claims made under these two heads, one after the other.

27. As we have stated, the plaintiff has claimed Rs. 10,000/- for the pain and suffering he underwent and also for the loss of future amenities, as his right fore-arm and palm were disabled and disfigured and rendered useless for work permanently. The contention of the learned Govt. Pleader is that it is true that there is no rule by which the damages for pain and suffering for the loss of limb could be assessed. In fact, it is something like asking to measure an immeasurable thing. But he contends that in regard to the damages to be awarded in respect of pain and suffering and the loss of limb, the decided cases lay down a particular pattern, and the Courts have found it as a convenient mode to determine the quantum of damages with a reference to such decided cases. He, therefore, referred us to some decided cases where the Courts have awarded damages for the pain and suffering and the loss of limb, and, relying upon these cases, he contends that the sum of Rs. 10,000/-awarded to the plaintiff by way of damages for pain and suffering and disablement or disfigurement of his palm is excessive and requires modification.

28. The plaintiff, in paragraph 19 of his plaint, while claiming Rs. 10,000/- as damages, has stated that he suffered great mental and nervous shocks, that there was much loss of blood, that his right fore-arm had been very tightly clinched in between the top of the said bus and the hard ground beneath for more than 3 hours and that during all this time he was continuously suffering from great physical pain and was under continuous mental anguish and fear of losing his life any moment. He has further stated that he was completely bedridden as an indoor patient for 54 days; his right fore-arm and hand had been disabled and disfigured and rendered unfit for work permanently; he is a young man of 36 years who had been enjoying exceptionally good health and he had now lost the prospects of an enjoyable, vigorous, independent and happy life. On this account, he alleged that he was entitled to recover from both the defendants Rs. 10,000/- as damages.

29. The plaintiff, in support of this claim, has led evidence. The trial Court, after a consideration of the evidence and the cases which were brought to its notice in the course of arguments, thought it proper to award to the plaintiff the claim made by him.

30. In doing so, the learned Judge principally relied upon the decision of the High Court of Bombay viz. Sorabji Hormusji v. Jamshedji Merwanji, reported in ILR 38 Bom 552 (AIR 1914 Bom 218). That was also a case of a motor accident as a result of which the plaintiff there sustained injuries all over his person and lost one of his legs. The learned Judge there awarded Rs. 10,000/- for the pain and suffering which the plaintiff had to undergo. Taking that as a correct basis, the learned Judge gave the plaintiff Rs. 10,000/- as damages as claimed by him. The learned Govt. Pleader contends that learned Judge has not properly appreciated the circumstances under which the Court there awarded Rs. 10,000/- as damages. He has drawn our attention to the following observation of the learned Judge as to why Rs. 10,000/- were awarded as damages.

'The plaintiff is a young man who had a career of good promise before him. That career had been ruined; he has already suffered intense pain and is likely to suffer in the future; he is crippled for life; and his means of earning a fair income in the future, if they have not been destroyed, have been lamentably reduced.'

The learned Govt. Pleader lays stress on the fact that the plaintiff in that case was completely crippled for life but that it is not so in the present case. He then referred us to the medical evidence in this case relied upon by the plaintiff.

31. Ext. 141 is Sri Vishwanath Lakshman Suryavanshi, a retired Civil Surgeon, who performed the operation of the plaintiff's arm. According to the doctor, the injuries sustained by the plaintiff are as follows:

(1) A lacerated wound 3' x 4' in front of the right elbow. The skin had been peeled off.

(2) Compound comminuted fracture of the lower third of the right outer bone of the fore-arm accompanied by dislocation of the wrist joint.

32. There was profuse loss of blood and he was in a state of shock.

33. Relying upon this evidence, the learned Govt. Pleader contends that it cannot be said that the plaintiff in this case has been completely crippled for life, that it may be, to some extent, his arm had been disfigured or disabled and that ho might also have been disabled to do certain things but they do not suggest that he is completely crippled for life. If that is so, then he contends, the trial Court was not justified in awarding Rs. 10,000/- as damages for pain and suffering and loss of future amenities as a result of the disfigurement or disablement of his palm.

34. Having thus stated, he then referred us to the following cases.

35. In Bromley v. G. I. P. Rly. Co. ILR 24 Bom, 1 the plaintiff, on account of the negligence of the Railway, sustained certain injuries to his finger. He was a dental surgeon and the Courts there awarded to the plaintiff only Rs. 2,000/- for his pain and suffering. The learned Govt. Pleader contends that the plaintiff was a dental surgeon whose finger had been torn away and the bone of one of his fingers had been fractured and even in such circumstances the Court did not award him more than Rs. 2,000/- as damages.

36. He then referred to the decision of this Court viz. Ganapathi Bhatta v. State of Mysore, reported in 38 Mys LJ 323 : (AIR 1960 Mys 222) to which one of us (Kalagate, J.) was a party. In that case, the plaintiff who was a student suffered injuries on account of the negligence of the defendant's motor vehicle while on his way to the College. The medical certificate disclosed that the injury sustained by him consisted of four lacerated wounds, one contused lacerated wound and fractures of the skull bone and one superficial abrasion in addition to multiple. He was an in-patient in the hospital for a period of 21/2 months and, according to the medical certificate, when he was discharged at the end of the period, he had not completely recovered. In such circumstances, this Court awarded Rs. 7,500/- as damages for the pain and suffering undergone by the plaintiff and for the general impairment of his health and for his incapacity to do the work.

37. The next case to which a reference was made is the decision in Manindra Nath v. Mathuradas Chatturbhuj, reported in AIR (33) 1946 Cal 175. In that case, the plaintiff, who was employed as a clerk in the Department of the Viceregal Estates under the Public Works Department, sustained an injury in the following circumstances. An advertising device consisting of a picture of cloth within a wooden frame put up by the defendant on the roof of the cinema house of which he was the proprietor fell down on the head of the plaintiff who was passing along the pavement of a public road below, and caused a cut on the head which was three and a half inches long, one inch wide and bone deep.

The wound bled for several hours before haemorrhage was stopped by the tying of certain blood-vessels. It took the plaintiff about 5 weeks to recover and resume his duties. It was in evidence that as a result of the accident the plaintiff had suffered firstly, bodily pain, the physical discomfort and mental anguish of greatly impaired health and disability; secondly, the loss of promotion to a higher appointment on account of reduced efficiency resulting from the injury and the consequent loss of the prospect of enjoying for 4 or 5 years more. It was held in such circumstances in that case that the plaintiff was entitled to Rs. 5,000/- only as general damages for the injury suffered by him apart from special damages for medical expenses amounting to Rs. 450/-.

38. These are the four cases on which the learned Govt. Pleader relies for the purpose of showing that the amount of Rs. 10,000/- awarded to the plaintiff by way of damages for pain and suffering and loss of amenities is much too excessive and must be reduced.

39. On the contrary, Mr. Shamsundar who appears for the plaintiff, contends that the award made by the learned Judge under this head cannot be said to be excessive nor unreasonable. He contends that taking into consideration the suffering which the plaintiff had to undergo for three hours before his palm was extricated and the consequent disablement of his right fore-arm, the quantum of damages awarded by the trial Court was justified. He, in support of his case, relied upon the decision of their Lordships of the Madhya Bharat High Court in AIR 1955 Madh B 214.

40. In that case, it appears that the plaintiff sustained a fracture of his clavicle and first lumber vertebra in a motor accident which necessitated his remaining in bed for three months and disabled him from following his profession for six months, that on account of these injuries he suffered considerable pain, discomfort and mental anguish and that the injuries had brought about a general deterioration of his health which was perfect before the accident, a shortened expectation of life and reduced capacity for work. The learned Judges upheld the trial Court's award of Rs. 10,000/- as damages to the plaintiff on the score of pain and suffering and on account of loss of enjoyment of life, loss of prospect of income and shortened expectation of life.

41. The next case on which Mr. Shamsunder relies is the State of Madras v. James Appadurai, reported in : AIR1959Mad369 , which was also a case of a motor accident. In that case, the plaintiff, the son of a carpenter, was sitting on a 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 belonging to the Govt. College of Technology crossed this culvert near the main gate of the Forest College. The bus was being 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. At the hospital, his left leg below the knee had to be amputated. In such circumstances, the plaintiff was awarded Rs. 10,000/- as damages. Mr, Shamsundar, therefore, relying upon these two decisions, contends that the award of Rs. 10,000/- as damages to the plaintiff in the circumstances of this case is not excessive and that this Court should not interfere with the award made by the trial Court.

42. It is, no doubt, a very difficult task to assess damages for pain and suffering or for the loss of limb. There is no rule of law which would help us to determine the damages except the rule of thumb. We have, therefore, got to be guided by the general principles and to some extent rely upon the decided cases awarding damages in somewhat similar circumstances, bearing in mind the facts of the case.

Here, we may refer, with advantage, to the observations in Rushton v. National Coal Board, reported in 1953-1 ALL ER 314. This is what their Lordships have stated:

'While, 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.'

In the course of his judgment, Singleton, L. J. referred to the following observation of Birkett, L. J. in Bird v. Cocking and Sons Ltd., (1951) 2 TLR 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 questions is, how does this accord with the general run of assessments made over the years in comparable cases?'

This passage, we may say, with respect, gives everything that we would like to say.

43. In the present case, as stated before, the learned Govt. Pleader, relying upon the medical evidence to which a reference has already been made, contends that the injury suffered by the plaintiff is not of such a grave character as to entitle him to a grant of Rs. 10,000/- as damages for the pain and suffering and the loss of amenities and for the disablement and disfigurement of his fore-arm and palm.

44. A review of the cases to which our attention has been drawn by the learned Govt. Pleader, and Mr. Sham-sunder, learned counsel for the plaintiff, discloses how the various Courts have reacted to the pain and suffering and loss of amenities or for the loss of limb suffered by the injured and in what way the injured has been compensated for the injury suffered. The award of damages by the trial Court is more or less in its discretion which of course, must be used judicially and reasonably. We do not think, in the instant case, that, though the trial Court might have, to some extent, erred on the side of generosity, the award made by it is either unreasonable or improper; we, therefore, are not inclined to interfere with the award made to the plaintiff under this head of damage.

45. The third and the last item claimed by the plaintiff is Rs. 60,000/- as damages for loss of his future prospects and business. The plaintiff's case with regard to this claim may be stated as follows:

He states that he is a young man, 36 years old, having a wife and three children. He was doing business as a general merchant with a flourishing trade in medicines, provisions, confectionary, toilets, stationery, glassware, hardware etc. His turnover and profits were large. He himself was personally working in the shop and doing his business as also other connected work. His annual income was between Rs. 5,000/- and Rs. 6,000/-. But ever since the injury sustained by him, he has either to close down permanently his shop and business which was the main source of his and his family's livelihood or engage servants to conduct the said business and spend a very large part of the income on their pay. Thus the injury sustained by him has caused him great loss and therefore he is entitled to Rs. 60,000/- at least for the loss of future prospects and business.

46. The defendants disputed the plaintiff's claim and denied that the plaintiff had to discontinue his business an account of the injury sustained by him on his fore-arm.

47. The plaintiff, in order to substantiate his claim, has relied upon the testimony of two witnesses besides that of his own brother and himself to show that at present his business has gone down. He has also produced his account books and two income-tax assessment receipts. We have, therefore, to consider whether the plaintiff has succeeded in showing that, as a result of the injury sustained by him, his business has suffered.

48. Plaintiff has stated that, prior to the accident, his business turnover was about Rs. 40,000/- to 50,000/-and he used to earn a profit of Rs. 5,000/- to 6,000/-per year. He, in support of his statement, has produced his account books for the years 1950-51 to 1954-55. He then states that his shop is about to be closed because he now constantly falls ill. In his cross-examination, he has admitted that his shop is housed in a room measuring 15' x 8' and that he pays Rs. 14/- as rent per month, that his sister's son is assisting him in his business and that, though he started his shop in the year 1946, he is paying income-tax from the year 1951-52 only. He has denied the suggestion that his business has been affected by the general slump and not by the damage caused to his fore-arm. He, however, had to admit that now there are four or five shops of similar type in his neighbourhood. He says, as already stated, that he constantly falls ill, but his own family doctor, Ext. 80 -- Mr. Prabhu, has stated that plaintiff's 'physique is all right now except for his tight hand.' Therefore we do not think that the injury has anything to do with the loss of his business. Further he has not stated that he has to spend more on the establishment of his shop; he has not made any attempt to maintain the standard of his business by efficient equipment, by engaging more staff which he would require on account of the injury to his fore-arm. It appears to us that plaintiff's business must have suffered on account of the coming into existence of many shops of similar type as a result of the growth of Ankola Town and his case that, on ac-count of constant illness due to injury, his business has suffered, has not been supported by his own family Doctor.

49-51. (His Lordship reviewed the evidence of other witnesses and proceeded :)

52. Then the plaintiff has produced some account books for the years 1950-51 to 1954-55. These as already stated, show that the general turn-over of his business was between Rs. 40,000/- and 50,000/- per year. He has further produced Exts. 70 and 72, the income-tax assessment receipts for the years 1951-52 and 1952-53 respectively, to show that he was making a profit of about Rs. 5,000/- to 6,000/- a year. But, from the evidence referred to above, we are unable to correlate his decrease in business to his injury. We have not been able to appreciate how the injury to the plaintiff's fore-arm is responsible for the decrease in his business. It appears to us that Ankola is a growing town and that some two or three shops similar to the plaintiff's have come into existence and are having flourishing business. The plaintiff's shop might not be having the same turnover as it used to have. Further it has not been shown that the plaintiff has made any efforts to maintain the standard of his business by engaging more persons in his shop. It was open for the plaintiff to maintain the standard of his shop in spite of the impairment of his by engaging some persons to do the work which perhaps he is unable to do on account of the disablement of his palm. But it does not appear that he has taken any steps to maintain his business. On the contrary, we find that his nephew who was working in the shop before the accident is alone working even now.

53. The defendants have examined Ext. 152, one Martu Prabhu, Traffic Controller S. T. Service at Ankola. He states that he has seen the plaintiff's shop and that the plaintiff attends to the shop regularly. He also states that he has seen him travelling alone to the other places after the accident and that there are 3 or 4 shops of the plaintiff's type near his shop. Out of all these shops, the shop of the plaintiff's younger brother is doing very well. The accident to the plaintiff's hand, according to him, has in no way affected his business. He has been cross-examined with reference to the existence of various shops but there seems to be nothing to suggest that plaintiff's business has suffered on account of this injury. Apart from the testimony of this witness, the evidence led by the plaintiff does not show that his business has decreased on account of the impairment of his palm. It is somewhat difficult to appreciate how the loss of his palm could affect his trade at, all. He owned a medical store and is also doing business as a general merchant. The conduct of business depends upon the ability of the person conducting it. The accident has not impaired his mental capacity nor his other abilities which might adversely affect the conduct of his business.

54. On a consideration of the entire evidence, we reach the conclusion that the plaintiff's business has not suffered on account of the injury to his palm. The Trial Court also has held that the plaintiff's injury has not affected his business. In para 60 of its judgment, it states 'The sole excuse for the present plight of his shop is said to be the loss of his right palm. But I fail to understand how his business could be affected to such an extent merely by the loss of his right hand.' It has given consideration to the loss of amenities which the plaintiff might suffer on account of his injury and says that 'These by themselves cannot go to dislocate his trade or business to the extent he now tries to make.' And it then finally stated: 'But l must observe that I am not much impressed by this plea of his.'

The learned Judge having thus expressed himself regarding the loss of business which the plaintiff claims to have suffered, then proceeded to consider what amount should be awarded by way of general damages and taking the decision in ILR 38 Bom 552 : (AIR 1914 Bom 218) as a guide, assessed Rs. 24,000/- as general damages.

55. It is true that in an action for damages for personal injury and loss of earning if caused following the injury, the injured person may claim damages. On the evidence in this case, we have come to the conclusion that the injury sustained by the plaintiff has not in any way affected the plaintiff's business. But then, can we say that this impairment of the plaintiff's palm has not at all hampered the plaintiff in carrying on his business in the way in which he was carrying on before he sustained the injury? it is obvious that he cannot carry on correspondence by himself as he was doing formerly, nor can he handle articles by himself, and this, to some extent, must cause him inconvenience in carrying on his business as before. Further, such an injury as the plaintiff has suffered has imposed a general permanent handicap in life. This injury must, therefore, be compensated.

56. But, before we proceed to consider the question of compensation, we may, with convenience, refer to the observation made by Brett L. J. in (1879) 5 CPD 280, to which we have already referred, with regard to the loss of earning sustained by the injured person. This is what he has said:

'With regard to subsequent time, if no accident had happened, nevertheless many circumstances might have happened to prevent the plaintiff from earning his previous income; he may be disabled by illness, he is subject to the ordinary accidents and vicissitudes of life.....'

We cannot therefore ignore that there are several contingencies in life which might arise which would affect the earning of the injured person. Though, therefore, this loss has to be compensated, yet it must be done having regard to the various chances of life and other imponderable events and having regard to the fact of getting the money now in one lump sum. We also cannot forget that the damages awarded in actions for torts are compensatory and not punitive.

57. Therefore, taking into consideration the nature of the evidence led by the plaintiff in this case and having regard to the legal principles governing the award of compensation in such circumstances, we do not think that he is entitled to claim the damages of Rs. 60,000/- as claimed by him.

58. We have seen that the trial Judge has awarded Rs. 24,000/- by way of general damages under the third head and, in so doing, he was influenced by the decision in ILR 38 Bom 552 : (AIR 1914 Bom 218), where also Rs. 20,000/- were awarded for loss of income, and he has stated that he would add Rs. 4,000/- to 20,000/- taking into consideration the hard times. Though he has stated that, while awarding that amount he took into consideration the circumstances such as the age of the plaintiff, the permanent loss of his right palm and that he would require additional employment of labour in carrying out his business and the present hard times, yet he failed to consider the judicially accepted principles in awarding damages for loss of future earning. As stated by Brett L. J., many circumstances might have happened to prevent the plaintiff from earning his previous income. A life is subject to many accidents and vicissitudes. There are many ups and downs in life. Further, it cannot be forgotten that the plaintiff is getting the compensation in one lump sum. Add to this, the trial Court itself has found that the injury has not affected the plaintiff's business.

In such circumstances, can we say that the award of Rs. 24,000/- is reasonable. We are not unmindful that we have stated in the earlier part of our judgment that the award of damages is in the discretion of the trial Court. But the use of such discretion must be judicial and rational. The trial Court, in this respect, has disregarded the judicially recognised principles and accepting the decision reported in ILR 38 Bom 552 : (AIR 1914 Bom 218), as the basis and without regard to the facts of the case, awarded Rs. 24,000/- as general damages. It appears to us that the award made by the trial Court is arbitrary and in total disregard of the facts of the case. Therefore, in our view, in the circumstances of this case, a sum of Rs. 15,000 (Rupees fifteen thousand) would be the proper compensation to be awarded to the plaintiff for the disablement of his fore-arm and palm which might, to the extent mentioned above, have affected his business and normal activities.

59. For the reasons stated above, we modify the decree in regard to the claim for damages for loss of business as indicated above. Subject to this modification, the appeal stands dismissed with proportionate costs.

60. The plaintiff has filed cross-objections, claiming Rs. 36,000/- disallowed by the trial Court. But, in view of the reasons stated by us above, the cross-objections must fail and the same are dismissed with costs.

61. I. A. No. II: The appellants have filed I. A. II seeking to produce additional evidence under 0. XLI, Rule 27, C. P. C. The additional evidence which is sought to be produced is a copy of the judgment in Criminal Court where by defendant 2, the driver, has been acquitted. We do not think that that evidence is necessary nor is it helpful to the appellants in this case. Consequently, I. A. II is dismissed. No costs.


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