M.N. Shukla, J.
1. These are three connected appeals by the plaintiffs from the judgment and decree of the 1st Additional Civil Judge, Agra, in the three suits for damages founded on tort. The suits were consolidated and decided by a common judgment and hence the appeals may also be disposed of by one judgment All the suits were dismissed with costs and hence these appeals were preferred. However, the appellant Dr. C.S. Patel in First Appeal No. 434 of 1958 arising out of suit No. 223 of 1955 is dead and hence that appeal has become infructuous and is dismissed. We are now left with First Appeals Nos. 429 and 430 of 1968 arising out of Suits Nos. 222 and 224 of 1955 respectively. The defendant in the three suits was the same, namely, the Cantonment Board, Agra,
2. Dr. C.B. Singh instituted suit No. 222 of 1955. He was at that time a Professor and Head of the Department of Surgery in the Medical College, Agra and a renowned Surgeon, having an extensive practice, Dr. R.V. Singh instituted suit No. 224 of 1955. He was at that time a Professor of Clinical Surgery at the Lucknow Medical College. The allegations in the two plaints were almostidentical. They were that at about 10 p.m. on 10-4-1955 Dr. C.B. Singh along with Dr. C.S. Patel and Dr. R.V. Singh and Miss Patel, niece of Dr. C.S. Patel, were going to see the Taj in the car owned and driven by Dr. C.B. Singh. Dr. C.B. Singh was driving the car with his usual care and at a very moderate speed of about 15 miles per hour. The car suddenly collided with a traffic island at the crossing of the Mall and Metcalf Road (now known as General Cariappa Road). The said traffic island was wrongly and negligently built by the defendant Board at a very inconvenient spot in or about the middle of the Mall Road. There were no overhead lights on the traffic island nor any other light near it. It was not equipped with ruby lights so as to make it noticeable for vehicles using the road at night The defendant Board was charged with the duties of lighting the streets and other public places, maintaining streets and roads and removing for purposes of public safety undesirable obstructions in streets and roads and keeping them safe for vehicular traffic. As a result of the collision the occupants of the car including the three plaintiffs, suffered injuries which gave severe physical pain and great mental shock to them. There was a permanent impairment of certain organs of the body which had affected their earning capacities for life and resulted in loss of income due to inability to do professional work. Dr. C.B. Singh and dr. V.R. Singh claimed Rs. 30,000/- each as damages and compensation as a result of this gross negligence, misfeasance and malfeasance,,
3. The defence of the Cantonment Board, inter alia, was that the occurrence took place on 10-4-1955 which was the Teej day (3rd day after the full moon) and at 10 p.m. it was not dark and the moon was full and bright that the alleged incident was due to the gross negligence of the plaintiff himself as he was driving his car rashly and negligently and at excessive speed that since the accident was due to the negligence of the plaintiff he was not entitled to claim damages. As regards the traffic island in question, the defence was that it has been bona fide constructed by the defendant Board with the approval and directions of the police authorities who were responsible for the control of the traffic, that other necessary precautions to warn public of the existence of such island had been taken by the Board and that due to limited funds at the disposal of the Cantonment Board reasonable arrangement had also been made for lighting hours according to the phases of the moon. It was denied that the plaintiffs suffered any permanent or serious injury. It was submitted that the amountof damages claimed was imaginary and excessive.
4. The first vital question which arises for decision in the case is whether the Cantonment Board. Agra was legally liable to the plaintiffs for damages in respect of the collision or accident with the traffic island. The finding recorded by the trial Judge was that the Cantonment Board was under no statutory duty to place a traffic sign or erect a traffic island. Such duty might have been cast under the Motor Vehicles Act on the State Government which had not been impleaded as a defendant in the suits. At all events, the Cantonment Board was not legally liable either under the Cantonment Act or under the Motor Vehicles Act for any collision which took place on account of the impact with the traffic island. We are unable to endorse the findings of law recorded by the court below.
5. Section 116 of the Cantonment Act, 1924 prescribed the duties of the Board. Clause (a) refers to the lighting of street and other public places. Clause (e) deals with 'removing, on the ground of public safety, health or convenience, undesirable obstructions and projections in streets and other public places'. Clause (h) refers to 'constructing, altering and maintaining streets, culverts, markets, slaughter-houses, latrines, privies, urinals, drains, drainage works and sewerage works'. Section 108 of the Cantonments Act is important. It provides:
'108. Property:-- Subject to any special reservation made by the Central Government all property of the nature hereinafter in this section specified which has been acquired or provided or is maintained by a Board, shall vest in and belong to that Board and shall be under its direction, management and control, that is to say,
(g) all streets and pavements, stones and other materials thereof, and also all trees, erections, materials, implements, and things existing on or appertaining to streets.'
It is thus clear that there is a statutory duty on the Board of maintaining streets and hence the streets as well as all erections existing on them are property which vests in the Board and belongs to it and is under its direction, management and control. It is also the statutory duty of the Board under Section 116(e) to remove undesirable obstructions and projections in streets and other public places. Reference may also be made to Section 117(k) according to which it is included in the discretionary functions of the Board that it should adopt any measure, other than those specified in Section 116, likely to promote the safety, health or convenience of the inhabitants of the Cantonment. Therefore, the Board cannot avoid its responsibility for maintaining and managing streets and removing undesirable obstructions and projections etc. It is of no consequences as to whether the Board is under any statutory duty or other obligation to construct traffic islands. Even though the duty to erect such traffic rotaries may fall on some other authority, once such erection is made on the streets which vest in the Board and are maintained, controlled and managed by it, it becomes its duty to prevent it from becoming an undesirable obstruction. Any erection or construction existing on a road may be intrinsically undesirable in all circumstances or it may become undesirable in the absence of reasonable precaution and care which are a condition precedent to its utility. It may, therefore, not be correct to exclude altogether such erections on the streets as a traffic rotary, nevertheless if it is constructed at an inconvenient site or is not equipped with requisite measures of safety and becomes dangerous for the public using it, it would surely become undesirable obstruction and it would be the statutory duty of the Board under Section 166(e) to remove such obstruction. Any construction existing in the middle of a highway necessarily implies some obstruction, though its harmful consequences may be mitigated and it may even be converted into a useful device by taking recourse to certain preventive measures. If on an appraisal of evidence in the case we come to the conclusion that the traffic island in question became a source of danger to the public, there would be no escape from the conclusion that the Board acted negligently by failing to perform its duty of removing or modifying the same. In that view of the matter the question as to who was responsible for initially constructing the rotary loses its importance.
5-A. Since however, the definite case of the defendant was that it had constructed the traffic island at the crossing of the Mall and the Metcalf Road where the accident took place, we may address ourselves also to the question as to who was responsible for constructing the traffic island in question. Section 75 of the Motor Vehicles Act empowers the State Government or any other authority authorised in this behalf by the State Government to place or erect a traffic sign in any public place for the purpose of regulating the motor vehicle traffic. The State Government may by notification delegate this power to any District Magistrate or Superintendent of Police or in the Presidency Towns, theChief Presidency Magistrate or the Commissioner of Police. The particulars of such traffic signs are provided in the IX Schedule of the Act. They, are however, different from a traffic refuge or rotary, to use a technical term. Section 91 of the Motor Vehicles Act empowers the State Government to make rules for the purpose of carrying into effect the provisions of Chapter VI which relates to control of traffic. Under Clause (2) the rule making power includes the following items:--.........
(e) the maintenance and management of parking places and stands and the fees, if any, which may be charged for their use.
(i) generally, the prevention of danger, injury or annoyance to the public or any person, or of danger or injury to property or of obstruction to traffic; and
(j) any other matter which is to be or may be prescribed. There is a provision in the U.P. Motor Vehicles Rules, 1940 for erection of islands for the purpose of facilitating the crossing of the road by the public Rule 184 is the relevant rule corresponding to Section 91 (2) (i). It runs as follows:--
'With reference to Sub-sections (1) and (2) of Section 75 of the Act the District Magistrate or the registering authority, may, in any public place cause, sign boards or notice boards in such script as may be appropriate to be exhibited, or marks to be made on the surface of the road, for the purposes, of regulating motor vehicle traffic, and may also cause islands or refuges of such character as he may consider appropriate, to be erected for the purpose of facilitating the crossing of the road by the public:
Provided that no such island or refuge shall be erected without the consent of the authority having jurisdiction over such public place, if the said erection entails breaking the road surface.
(b) The signs or notice boards, which may be erected under the provisions of this rule may include sign of the design shown in the ninth Schedule of the Act.' The above rule shows that the power to erect traffic refuges has been conferred on the District Magistrate or the registering authority under the Motor Vehicles Act, which is the Regional Transport Officer. There was therefore, no statutory duty cast on the Cantonment Board to construct a rotary, but as we have observed, this has no bearing on the liability of the Board for keeping it free from danger. The Board cannot take shelter under the plea that it is absolved of the responsibility on the ground that it did not possess any statutory authority to construct the traffic island. Onthe other hand, this places the Board in a worse position, inasmuch as it cannot claim even the initial statutory protection for the existence of such island on the street The Board was under a statutory duty to maintain the streets free from obstacles.
6. In the present case we further find that the defendant has failed to prove its positive defence that it had constructed the traffic island with the approval and directions of the police authorities who were responsible for the control of the traffic. The Board has not adduced evidence of any written permission from the police to do so. Sri N. N. Rai (D.W 5) who was Sub-Divisional Officer of the Cantonment Board, Agra from October, 1947 to May, 1957 stated that the island in question was constructed at the suggestion of the local police, its pattern was given by the Assistant Superintendent of Police and the Traffic Inspector We are not impressed by this plea of the alleged oral permission. When the plaintiffs served a notice on the Cantonment Board, Agra after the collision of the car against the said traffic island, Sri S. L. Khurana. Executive Officer, Cantonment Board addressed a letter dated 2-7-1955 (Exhibit Ka 7) along with a draft of the Board's reply to the notice. In the letter it was mentioned that (a) all the islands and lighting arrangements thereon had been put up under instructions from and with the approval of the police authorities Sri M. C. Tyagi. Senior Superintendent of Police, Allahabad was examined on commission and he in his reply dated 8-7-1955 (Exhibit 8) said, 'The lighting arrangements are poor as red reflectors have not been put. This was pointed out in 1952 to P.W.D. Engineer also. There is no record to show that it was approved'. When the attention of Sri Tyagi was drawn to Exhibit 8 he said, 'I must have looked into the records as the last sentence of the reply reads', 'There is no record to show that it was approved'. Sri Khurana (D.W. 9) Executive Officer of the Cantonment Board, Agra was unable to give any rule or regulation under which the Board was under an obligation to consult the police for constructing a traffic island. He admitted that he had no personal knowledge of the circumstances under which the island in question was constructed in 1950, that there was no written instruction from the police about the pattern of the island as it existed before the date of the accident. We have seen how Sri Tyagi repudiated the assertion that the island had been built with the approval of the police. Sri Khurana further stated, 'If the police desired that an island should be put in a congested area, then it should not be objected. It is a matterfor the police. In case any unwise suggestion is made and that is obviously dangerous for the public safety then objection could be made by the Board'. Although he stated in a general way that the islands were constructed under the directions and instructions of the police, he conceded, 'I am not conscious of having seen any such record'. Sri M. N. Rai, Sub-Divisional Officer of the Cantonment Board, Agra clearly admitted in his deposition, 'I was the highest officer in the Engineering Department of the Cantonment Board. The care and maintenance of the road was under me'. Thus, there is no documentary evidence of approval by the police and the oral evidence adduced by the defendant, is negatived by the repudiation at the instance of Sri Tyagi, Senior Superintendent of Police. Therefore, the Board has failed to prove that the traffic island was constructed on the directions and with the approval of the police. Surely, it was not the case of the Board that it was constructed at the instance of the District Magistrate or Regional Transport Officer as contemplated by Section 75 of the Motor Vehicles Act read with Rule 184, Quite apart from the statutory duty, the common law also casts a duty on the Board to keep the streets free from obstructions which were either undesirable from their very inception or became so ,for failure to take reasonable precautions. It is not disputed by the defendant that the traffic island was erected by it, in our opinion a Board or local authority by constructing a traffic island places upon itself a self-imposed duty to keep it immune from danger and take reasonable care so that it does not become a trap or danger spot to the public. If the local body by its own unskilful intervention creates dangers or traps, it would be liable for its negligence to those who suffer thereby. This obligation is reinforced where the streets vest in the Board and the law enjoins on it the control and management of the roads and keeping them safe for user by the members of the public. To quote Halsbury (Laws of England. 3rd Edition, Volume XIX at page 316), 'The duty is a duty to exercise reasonable skill and care having regard to the protection which the public are entitled to expect'. It is a common law duty cast on the local authorities such as the Cantonment Board, even though there may not be a statutory duty (of course, in the instant case we have held otherwise). If the Board fails to exercise reasonable care in properly maintaining the traffic rotary, then it becomes guilty of common law negligence, notwithstanding that it may not occasion breach of any statutory duty. The birth of such common law duty is a necessaryconcomitant of the march of civilisation. With the advance of traffic of motor cars and other fast moving vehicles on the roads the local authorities in whom such roads vest must undertake to keep them reasonably free from danger.
7. There is abundant authority for the proposition that if a danger is created or suffered to be created by a local authority, it would be liable to damages for negligence under the common law. In Sheppard v. Glossop Corporation, (1921) 3 KB 132 Bankes, L. J. said at page 140:
'And I think it will be found that wherever a plaintiff has succeeded in establishing a liability it has been not for merely omitting to light a part of the district but for making it dangerous unless it is sufficiently lighted......,..'
In summing up his views at page 140 Scrutton, L. J. observed that in case governed by the Public Health Act, 1875 the local authority, although under no obligation to light the streets, would be liable for:
'......... negligence in putting posts in a highway without warning, and negligence in placing traps and dangers in the streets and not lighting them at night'
The above remarks apply with full force to the instant case, as it is admitted by the Board that it constructed the traffic island.
In Polkinghorn v. Lambeth Borough Council, (1938) 1 All ER 339 the mere fact that the defendant council had erected the refuge and bollards was regarded as sufficient to throw a continuing duty to keep them adequately lighted. They were, therefore, held liable to the plaintiff in respect of the injury he had sustained. In that case an illuminated bollard at one end of a tram refuge had been damaged in an accident. The defendant council had placed a light upon it, but this light had, for some unexplained reason, gone out. As a result of this, the plaintiffs motor car collided with the bollard and the plaintiff was injured. There was evidence that compulsory street lighting under Section 130 of the Metropolis Management Act, 1855 was in full force. Slesser, L.J., however, in his judgment did not place any reliance on Section 130. He said that the defendants, having utilised their statutory power to place the refuge in the roadway, were bound to exercise reasonable care to prevent injury to others. They had failed in their obligation, and there was no explanation to excuse their non-performance of it. Scott, L. J. said that it was the duty of the defendants, under their statutory obligation to light the street, to see that the refuge was sufficiently lighted. But he added that whether the carewas regarded from the point of view of statutory duty or from the common law duty, the failure to maintain the light was all that it was necessary for the plaintiff to prove. Farwell, J. preferred Ito deal with the case as one of negligence and he expressed no opinion as to statutory duty. In his opinion the failure to light the bollard was a negligent act on the part of the defendants. He held, 'The bollard represented an obstruction to the highway, and to leave it unlighted in the dark was common law negligence.' Thus, all the three members of the court held that the case should be decided on the ground of negligence. Only Scott, L. J. thought that it could also be rested on breach of statutory obligation to light the street.
In Foster v. Gillingham Corporation, (1942) 1 All ER 304 a local authority erected a barrier across a highway near a crater made by a bomb. Hurricane lamps were placed upon the barrier, but the lights were extinguished by a strong wind. The man whose duty it was to attend to the lamps failed to visit them on the night in question. The respondent, who was riding a bicycle along the street, received injuries through colliding with the barrier. The local authority contended that the barrier was erected without negligence and that they had not been negligent in leaving it unlighted. It was held that the appellants having placed the obstruction in the highway were under a duty to keep them lighted. There was evidence of negligence for which they were in law responsible, and the respondent was entitled to recover damages in respect of the injuries received. It may be noted that in Foster's case the barrier was not erected under a statutory duty to erect that particular type of obstruction. It was made under a duty imposed by the Towns Improvement Clauses Act, 1847 to enclose dangerous holes in streets. In other words, the defendants had put the obstruction on the highway without having in a sense the authority of Parliament to put it there. Still it was held that although there might be no specific obligation to light, the local authority was under common law liable to take reasonable care when exercising its statutory power.
The entire case law on the subject was reviewed in the leading case, Fisher v. Ruislip, Northwood Urban District Council and County Council of Middlesex, (1945) 2 All ER 458 (468). In that case an air raid shelter which had been erected by the second respondent under the powers contained in the Civil Defence Act, 1939 was under the management of the first respondents. The shelter was equipped with an external lighting system. At the time of the accident the lights were not in operation and the plaintiff, collided with it and sustained injuries. The question for determination of the court was whether the respondents owed a duty to the appellant, as a member of the public lawfully using the highway, to take reasonable steps, by lighting or otherwise, to warn him of the danger. It was held:
(i) the Civil Defence Act, 1939, did not impose a duty on the undertakers to exercise care in respect of the construction or maintenance of shelters erected by them. If the legislature authorised the construction and maintenance of a work which would be safe or dangerous to the public according as to whether reasonable care was taken or not in its construction or maintenance, the fact that no duty to take such care was expressly imposed by statute could not be relied on as showing that no such duty existed.
(ii) there was no distinction between a statutory power and a common law power where all that the statute did was to authorise in general terms the construction of an obstacle on the highway which would be a danger to the public unless precautions were taken. The undertakers in each case, by exercising a power, whether statutory or common law, placed themselves in a relationship to the public which from its very nature imported a duty to take care.
(iii) it was a misconception to treat a duty to take care as a duty to light the obstruction. The duty was to take reasonable steps to prevent the obstruction becoming a danger to the public and to give the public due warning of its existence both by night and day, in his memorable judgment Lord Greene, M.R. described in graphic language the grim consequences which would ensue if the local authorities failed to perform their duty of taking reasonable care with regard to the streets vesting in them. He observed as follows (at page 468):
'I feel bound to point out that if the View expressed in Wodehouse's case (Wodehouse v. Levy, 3940 2 KB 298) were correct and local authorities in the metropolitan area had acted upon it (which happily they did not) the streets of London would have been littered with smashed vehicles and the bodies of their occupants. Moreover, the argument is quite inapplicable in a case (such as the present) lying outside the area of compulsory street lighting. Is it to be said that if a local authority outside that area chooses not to exercise the permissive power of lighting its streets it is entitled to leave street refuges unlighted? If so, it would be sheer murder. If, on the other hand, the local authority in such a caseis under a duty to take reasonable precautions and lighting the refuges is the only reasonable precaution to take, what becomes of the argument that there can be no duty to light them unless the statute imposes it?'
8. Thus, the rule is too well established to permit any doubt that the duty to take care may flow from common law. Negligence is nothing but the breach of a duty to take care. That duty arises by reason of a relationship in which one person stands to another person or authority. Such relationship may arise in a variety of circumstances. The simplest instance where it arises is when a person exercises his common law right to use the highway By doing so he places himself in relationship to other users of the highway which imposes upon the local authority controlling and managing the highway, a duty to take care. The basic duty of care or precaution is always implied where a danger has been created by a person or authority, irrespective of the fact as to whether the Legislature has authorised or not the creation of such danger. The common law duty is to give warning of the danger which one has placed on the way. Therefore, our conclusion is that the defendant was both under statutory and common law duty of preventing the traffic island from becoming a trap or source of danger to the users of the road. If its failure to exercise reasonable care in this regard is proven, it would be a plainly negligent act on the part of the Cantonment Board.
9. The crux of the case, there-tore, is as to whether in the circumstances the Cantonment Board failed to observe the necessary care and precaution and could be legitimately blamed for negligence. For that purpose it will be necessary to examine as to what was the real cause of the accident. In paragraph 6 of his plaint in Suit No. 222 of 1955 Dr. C.B. Singh made an averment that the said collision was caused directly due to the gross negligence of the defendant Board and various acts of commission and omission were set out in detail. The first allegation therein is that the Board constructed the traffic island at a spot where the width of the road did not warrant it. Sri M. C. Tyagi in his deposition admitted that one had to be very careful while negotiating the bend at that particular spot as the Metcalf Road crossed the Mall Road at a peculiar angle, that the Mall Road was narrower than its width, that this happened due to the Various angles of the cross roads and that 'Metcalf Road crossing was almost blind unless you come on the Mall and one had to slow down and take curves by negotiating the traffic island evenwhen one was going on the Mall to the Taj'. Dr. C.B. Singh deposed that the road was narrower at the place of the accident to negotiate the curve at that crossing the car had to be slowed down and then with an effort the curve was to be negotiated and that even in the day time it was a difficult crossing. In his inspection note the trial Judge has mentioned that the island was almost at the centre of the cross roads. It, therefore, follows that the island was built in the middle of the road at a place where the road was very narrow and hence the Board acted negligently in constructing it at that site It is significant that the Executive Engineer had actually suggested the widening of the road. Reference may be made in this connection to his note dated 9-7-1952 on the letter Exhibit 32 to the following effect:
'I may also state that the very small traffic islands on the Mall Road, at the junction of Metcalf Road and Gwalior Road and other places are not safe due to poor visibility during the nights. They need enlarging and widening of the crossing itself.........'
10. The traffic island seems to have been clumsily constructed also. It was admittedly built in a cross pattern with four wings protruding in each direction. It was argued on behalf of the appellant that the cross shaped island was not conducive to the free flow of the traffic The evidence shows that the cross-shaped islands were not found in the Municipal area of Agra. Sri N. N. Rai (D.W. 5) the then Sub-Divisional Officer of the Cantonment Board, Agra, stated that islands of this pattern existed at three crossings of the Mall Road only and the islands on the crossings of Pratap Pura and Shamsabad and Taj Road were round. It appears that the cross-shaped islands are considered inappropriate and are not suitable for free flow of the traffic. It is obvious that vehicles have to swerve round the protruding portions and particularly where the road is narrow, islands of such pattern are bound to present great disadvantage for the free flow of traffic. Sri N. N. Rai's attention was drawn to a passage at page 376 of the Journal of Indian Roads Congress (June 1955) which gave the various shapes of the islands and to paragraph 81 wherein it was stated, 'The Central island is most efficient when its outline is composed of a series of curves of large radii, avoiding corners. Sharp corners are handicaps to traffic flow and lead to the formation of unused areas. The outline of the island may be made symmetrical but sometimes such a design may hamper flow of traffic on some portions of the rotary'. The witness parried the question by saying that he wasnot an expert and was merely an Engineer. He was, however, unable to deny whether the islands with corners were deprecated in road science. Sri S.L. Khurana (DW. 9) Executive-Officer of the Cantonment Board, Agra, was questioned about the existence of cross-shaped islands at any other place in Agra. He replied that he had not seen the islands at other places so minutely and so he could not say whether crass-shaped islands existed anywhere. The reply of the witness was clearly evasive and suggested that cross-shaped islands were not found elsewhere because they were unsuitable for the flow of the traffic. Hence, there appears to be force in the plaintiff's allegation that the pattern of the traffic islands itself spelt danger to the traffic and the Board acted negligently in adopting such pattern for the islands.
11. It was admitted in the written statement that there was no overhead light exactly over the island in question. It was, however, pleaded that there was a hanging light just a little towards the South of the island which served the purpose of over-head light. Sri M. C. Tyagi in his letter dated 28/29-6-1955 (Exhibit 6) pointed out that all the crossings were narrow and ill lighted, the islands did not possess red reflectors with the result that sometimes the passengers failed to observe the presence of a traffic island. The remedies suggested by him were that the crossings should be widened, there should be an over-hanging light, at the top of the island and all the islands should be painted in black and white stripes with red reflectors placed on them. In our opinion the absence of over-hanging light adversely affected the visibility of the traffic island and the Board was responsible for it.
12. Dr. C.B. Singh in his statement said that at the time when he was driving there were no warning signals or indications of the crossing on the road, there were no red fights or ruby lights so as to make the island noticeable to the vehicles using the road at night. The allegations to that effect made in the plaint were not denied in the written statement. On the other hand, the plea taken was that the police authorities did not give any directions with regard to the fixing of the ruby lights to the rotary in question as they did not consider it necessary in view of the fact that the painting of the traffic island in white and black was enough. In our opinion the black and white paint by itself was not sufficient to give adequate protection to a motorist who was going in a dip position, the paint would not be visible. The plaintiff further stated in his statement that there was dust on the siteof the island, the road was all dusty and so he did not notice any white or black paint The plaintiffs statement is corroborated by the admission of Sri M.C. Tyagi that the white paint on the brickedgings on the Mall Road did not shine due to heavy dust in Agra, Thus, it appears that even though the traffic island was painted black and white periodically by the Cantonment Board, it was not visible on account of being overlaid with dust We find no reason to disbelieve the plaintiffs statement on that account. Hence, the Cantonment Board did not discharge its duty of care which it owed to the users of the road.
13. It is admitted case of the defendant that at the time of the accident the street lights were not burning and had been switched off. It was not a dark night but Teej day (3rd day after the full moon) and at 10 p.m. there was bright moonlight. According to the practice of the Cantonment Board lighting hours were fixed in accordance with the varying phases of the moon. On 10-4-1955 the lighting hours fixed were from 6-30 p.m. to 9-30 p.m., as the moon was expected to have become visible long before 9 p.m. on that day. In our opinion the defendant Board neglected its duty of care by not making proper arrangements for lighting the road and depending merely on the natural light of the moon. In Whiting v. Middlesex County Council, (1947) 2 All ER 758 Fisher's case (supra) was referred and it was held that even though the street lights were present, danger lights were not provided and hence the County Council had failed to discharge its own legal duty. It was observed that the existence of normal street lighting did not absolve the defendants from their duty to ensure that the shelter was so illuminated or otherwise distinguished that it would not be a danger to the users of the highway. In Morrison v. Sheffield Corporation, (1917) 2 KB 866 street lighting was prohibited under Defence of Realm Regulations, the plaintiff collided with one of the spiked guards and suffered serious injury. It was held that the defendants, an urban authority, had not taken reasonable measures to neutralise the danger to the public lawfully using the road and hence the plaintiff was entitled to maintain the action.
14. The visibility could also be seriously hampered by the presence of the trees casting their shadows on the road. In that situation the presence of street lights would be very essential and mere moonlight would not be sufficient to warn the users of the road of the existence of any traffic island. Dr. C.B. Singh deposed that there were big tall trees around the place of accident, standing between the road and the boundary Wall of bungalow No. 33, there were some trees standing between the boundary wall of bungalow No. 20 and the road and some trees also stood inside the boundary wall of bungalow No. 20, the trees were of Nim, Shisham and Siras, shadows were being cast of the trees and he could only dimly see men moving around, the light of the moon was visible on the surface of the road in patches and that a few of those trees still stood. The inspection note of the learned Judge dated 23-3-1958 mentions that a Siras tree was standing just near bungalow No. 20, that a pit was shown to him by the plaintiff near the said bungalow and outside the boundary and it was said that a tree formerly stood there at the time of the accident which had been cut away. The Judge noticed that undoubtedly there was some depression but it could not be said definitely as to whether formerly any tree had stood or not at that spot. Both Sri S.L. Khurana (D.W. 9) and Sri N. N. Rai (D.W. 5) stated that no tree had been cut down or removed from the crossing after the accident. Sri N. N. Rai added that there was only one big tree standing in front of bungalow No. 20, that there were no other big trees standing outside the bungalow around the traffic island though there were shrubs about 3 or 4 ft. high. He could not say how many trees were standing in the compounds of the bungalows near the crossing. Sri N. N. Rai (D.W. 5) deposed that he did not remember that any shadow was cast from the only tree which was standing in front of bungalow No. 20. He, however, admitted that in the moonlit night the shadow of the tree was no doubt cast. He could not say whether the length and size of the shadow would depend upon the position of the moon from the horizon. On the evidence the existence of the trees on the road and their shadows being cast on the road cannot be ruled out.
15. It is significant that the defendant Board became wiser after the event. The island was remodelled and the crossings were widened after the accident. Sri N. N. Rai (D.W. 5) admitted that after the accident the shape of the island was changed and it was now an oblong one instead of being cross-shaped, that while prior to the accident there was an over-hanging light at a distance of 15 ft. to the south of the crossing, alter the accident the light was shifted to just above the island. The witness was not able to deny that after the accident the island was admitted to be defective in so many respects and the defects were removed. Sri N. N. Rai (D.W. 5) also admitted that the widening of the road at the place of the accident by the Cantonment Board was made at the instance of the police authorities in, August, 1955. Thus, it is manifest that the very defects which formerly existed with regard to the traffic island and the surrounding place were later appreciated by the Board itself and they were accordingly removed. If such defects had not existed at the time of the accident, in all probability the accident would not have occurred. This circumstance, therefore, lends support to the plaintiffs allegation that the Board did not carry out its duty of reasonable care in maintaining the road on which the traffic island stood. Even in his letter dated 5-8-1955 (Exhibit 9) Sri M. C. Tyagi was constrained to point out that the reflectors fixed to the traffic island on the Mall Road did not reflect at all with the result that the island still remained obscure when the two vehicles were crossing, that there was, therefore, something wrong either with the angle of the reflectors with which they had been fixed or they were not good at all, as they did not shine and were useless,
16. The evidence in the case fully establishes that the lighting arrangements made by the Cantonment Board, were far from satisfactory. We have already commented on the practice of the Board lighting the roads according to the phases of the moon. We wish to emphasise the risk inherent in depending entirely on the moon light. Specially in a case like the one in hand where the accident occurred not long after moon rise it would be highly imprudent to switch off the light and depend on the natural light of the moon for warning the motor drivers of the existence of traffic islands. According to the statement of Lakshman Prasad (D.W. 41 the time for the moon rise on 10-4-1955 was 8 hours. 29 minutes and 40 seconds. The accident occurred at about 10 p.m. Dr. C.B. Singh stated that the moon was just coming on the horizon and there was only the shadow of the trees but no moon-light on the road. A suggestion was put to Sri N. N. Rai (D.W. 5) that the dusk and rising of the moon were the worst time for visibility. Be that as it may, we are not convinced that at the time of the accident the moon would have been so bright as to dispense with the necessity of artificial lights. It is the admitted case of the defendant Board that at the time of the accident the street lights had been switched off. It was too much to expect enough natural light on a Teej day within a short space of the rising of the moon. There is positive material on record to indicate that the lighting arrangements in the Cantonment area at Agra were inadequate and poor. Exhibit 33 in suit No.222 of 1955 is a resolution dated 31-1-1963 which reads as under:--
'To consider the letter ......... dated 22nd January. 1953 from the Station Staff Officer. Agra in connection with the arrangement of street lighting in Agra Cantonment......... The Executive Officer to put the scheme.'
Sri S. B. Bhattacharya (D.W. 2) Inspector of street lights in the Cantonment Board. Agra stated that the lighting time on 10-4-1955 was till 9-30 p.m., the rising time of the moon that day was 8-30 p.m. and the lights were put out after an hour of the coining of the moon on the horizon. In our opinion the moonlight at that hour would not have been sufficient to illuminate the road of the island in question. It is the duty of the lighting authorities to increase the visibility and not to minimise it The plaintiff also examined Ram Mohan Sharma (P.W. 13), a member of the Cantonment Board, Agra from 1951 to 1965. He deposed that street lighting arrangements in the Cantonment area in those days were unsatisfactory, the matter came up before the Board in 1953 and a resolution was passed in the end of 1954. In that connection he added that he had made a written complaint about the alleged lighting arrangements in the Cantonment area many times which were considered by the General Committee and the Cantonment Board. A decision was taken and a resolution was passed accepting his suggestion in 1954. We have already referred to the resolution. Exhibit 33.
17. It would be pertinent to refer to another feature of the case on which the plaintiff led evidence viz, that there had been previous accidents on the same road crossing. That allegation was made on the plaints of the two suits as well as in the depositions of the plaintiffs. Sri Ram Mohan Sharma (P.W. 13) also stated that there were no indications or signals on the Mall Road about the approach of the crossing and several accidents had taken place on the crossing of the Metcalf and the Mall before April. 1955. No doubt he admitted that only one accident had taken place on the crossing in question and that was in January 1955 when a truck had collided against the said island. The fact that he was unable to give the name of the driver or the number of vehicle is no ground for disbelieving him. He was a member of the General Committee of the Board for about a year and said that he had made certain suggestions to the Board with regard to the happening of accidents on the crossing in question and those suggestions were actually discussed in his presence several times by theGeneral Body. It was suggested to Sri S.L. Khurana (D.W. 9) in his cross-examination that the car of Capt J. P. Bajpai had also collided in January 1955 at this very crossing. The witness was not able to deny that suggestion. Sri Khurana tried to support the Board by stating that he had seen the record of the Cantonment Board, Agra and on that basis he could say that there was no accident prior to May. 1954. He stated that there was a file relating to the accident but he added that accidents which resulted in damage to the property of the Board were noted in the file but the accidents which resulted in damage to private property or public were not noted in the file. The statement of this witness, therefore, does not belie the allegations made by the plaintiff, it is to be found in the statement of Sri M. C. Tyagi, S. S. P., Allahabad that a couple of accidents had taken place on the crossing in question. He did not remember the date but he said that other accidents did occur before and after this accident 'Some did occur before this accident'. Sri Tyagi made the statement from his memory and added that he had passed over Metcalf and Mall Road crossing hundreds of times even at odd hours. Thus, it is proved by the evidence in the case that accidents had occurred at Agra in the past also at the same crossing, which fact was within the knowledge of the Board and still it persisted in its negligence and took no steps to make the roads safe for traffic.
18. The defendant raised the plea of contributory negligence which means that the duty of care which was expected from a prudent driver was not discharged by the plaintiff, namely, Dr. C.B. Singh. One of the main allegations made in this connection was that ha should have used full lights instead of dip lights while driving the car at the crossing in question. The learned counsel for the defendant referred to Rule 197 of the Motor Vehicles Rules which relates to the restriction of dazzling light, it reads as follows:
'197. Dazzling light -- restriction of -- (a) The driver of a motor vehicle shall at all times when the lights of the motor vehicles are in use so manipulate them that danger or undue inconvenience is not caused to any person by dazzle.
(b) The District Magistrate may by the erection of suitable notices in English and in the local script prohibit the use, within such areas in such places as may be specified in the notification, of lamps giving a powerful or intense light.
(c) No searchlight or spotlight or other movable light, other than the lights prescribed shall be used on any motorvehicle when such vehicle is passing through any town or village or is meeting other vehicular traffic.'
Of course, in the present case it was not proved that there was any notification by the District Magistrate prohibiting the use of lamps giving a powerful or intense light. The operation of the above rule, however, does not necessarily depend on such notification. Clause (b) of the above rule is merely an enabling provision which may be availed of by District Magistrates for prohibiting powerful light. From this it does not follow that in the absence of such notification the duty to eschew dazzling light is waived. There is a positive injunction under Clause (a) of the rule on the drivers of motor vehicles to see that no danger or inconvenience is caused to any person by dazzle. It is. therefore, in conformity with the spirit of the rule that in Municipal area where the traffic is bound to be comparatively brisk the dazzling light should not be used. In other words, it would be prudent to use dip lights instead of full lights while driving a motor vehicle in a Municipal area, irrespective of any notification issued by the District Magistrate. The object of Rule 197 would be achieved by making use of dip lights in Municipal areas. Therefore, there was nothing wrong if Dr. C.B. Singh was using only dip lights while driving the car at the crossing. He stated that he had developed the habit of driving with dip lights in Municipal areas. In our opinion this was a commendable practice and whether there was a notification or not Dr. C.B. Singh followed the rule of prudence and caution by adhering to Rule 197 while driving in the said area. The defendant cannot take advantage of the admission by Dr. C.B. Singh that there was no vehicle or traffic at that time on the Mall or that he did not notice any traffic. The statement merely referred to the absence of the traffic at that particular moment; it did not negative the existence of traffic on the Mall Road generally at other time. We have already adverted to the material on record regarding defective lighting on the Mall and the Cantonment Board area in Agra. They are only consistent with the existence of traffic in that area and the inconvenience and danger resulting from the absence of adequate lighting arrangement Sri M.C. Tyagi. Senior Superintendent of Police Allahabad, candidly admitted that the Mall Road was one of the important traffic roads of the Cantonment Area, Agra and a portion of that road was used as a national highway. Sri Tyagi pointed out that he had inspected the Mall Road from the point of view of traffic. This shows that the statement was beingmade by a person well acquainted with the state of traffic on the road. He added, 'The tourists visiting Agra invariably pass over the Mall Road to see the Taj. Marshall Tito, Marshal Bulganin of Russia and many other foreign dignitaries visited while I was there and their cars passed over this road. Thus it is quite clear that the plaintiff was not negligent in driving the car at night by keeping only the dip lights on. The question of any contributory negligence on his part does not arise.
19. The other allegation against Dr. C.B. Singh was that he was driving at an excessive speed and if he had been driving the vehicle at a moderate speed, the car would not have collided with the traffic island. In other words, it was suggested that the accident was caused on account of the rash and negligent driving by the aforesaid plaintiff. Dr. C.B, Singh deposed that he was habitually a cautious driver and at the time of the accident he was driving the car at a moderate speed of 15-20 miles per hour, that his usual speed of driving in the city did not exceed 20 miles per hour and even if he went on long routes he did not drive at more than 40 miles per hour. Dr. C S. Patel and Dr. R.V. Singh corroborated the fact that Dr. C.B. Singh was a cautious driver. They also stated that the car was being driven at a speed of 15-20 miles per hour before it dashed against the island. We find no reason to disbelieve the statements of the plaintiffs in the three suits. There is evidence also to show that the needle of the speedometer of the car was found stuck at the speed mark of 15 miles. This was borne out by the certificate dated 10-4-1955 (Exhibit 4) issued by M/s. Niranjan Lal Ram Chander, an automobile firm, Brij Nandan (P.W. 12) a partner of the said firm appeared in the witness box and proved the certificate. It is true that the certificate was actually issued on 11-4-1955, though the date noted on the same was 10-4-1955. This was however, not a discrepancy. The witness had visited the place of accident on 10-4-1955 and examined the vehicle. He also got it inspected on the same night by Sri Y. P. Sethi, the representative of the Indian Trade and General Insurance Company with which the car was insured. The date 10-4-1955 was noted at the instance of Sri Sethi who asked Brij Nandan (P.W. 12) to date it according to the date of the inspection of the vehicle. There was a reason for issuing the certificate, namely that Sri Sethi wanted to send it to his Head Office for filing a suit against the Cantonment Board. It is true that the stationary needle of the speedometer is not conclusive of the speed at which thecar was being driven because the needle could get stuck owing to a variety of causes, including mechanical defects. All the same it was a relevant circumstance suggesting the probability of the speed of the car being 15 miles per hour. We are not impressed by the argument that the said speed might be due to the brakes being applied immediately before the accident and that prior to it the car was being driven at a much higher speed. Dr. C.B. Singh's statement in substance was that he could not effectively apply the brakes because the car suddenly dashed against the protruding part of the island. On the whole his deposition in this regard inspires confidence and we cannot attach any importance to minor contradictions in the matter of details. The moderate speed of the car is also consistent with the little damage done to it by the accident. If the car had been driven at an excessive speed, much more serious damage would have been caused to the vehicle, the entire car would have smashed. The evidence shows that only the right portion of the mudguard and radiator were damaged and the doors were jammed. It is, therefore, not correct to assert that the plaintiff contributed to the causing of the accident by any negligence on his part
20. If all the factors in this case are closely analysed it becomes evident that the cause of the accident was the absence of precautions by the defendant Board and the speed of the vehicle in that set up was more or less immaterial. The learned counsel for the defendant relied on the visibility at the time of the accident, according to the statement made by Dr. C.B. Singh. and contended that if the plaintiff had acted with reasonable care, he could have definitely swerved the car and avoided the accident. Our attention was drawn to the following statement of Dr. C.B. Singh:--
'Upto a distance of 5 or 6 yds. I could see clearly with the dip light, about 5 yards ahead of it I could see faintly.'...... the head lights, if used work for 50 or 60 yards. If I had used the head lights I could possibly see the island from a distance of 20 yards and then I could avert this accident. From a distance of 6 or 8 yards and using the dip light I could see the island. From a distance of 6 or 8 yards I did not see this obstruction i.e. the island. I saw it when I reached within 1 or 2 yards......
I can't explain why I could not locate the island from a distance of 6 or 8 yards ......... If one could see the obstruction
from a distance of 5 or 6 yards, then after applying the brakes the collision could be avoided. The brakes were in order. It I had seen this island, from a distance of 6 yards then after applyingthe brakes the collision could have been avoided by swerving the car to the left.' We have already held that the failure to use the head-lights did not amount to any negligence on the part of Dr. C.B. Singh while driving at night in the said area. Therefore, the maximum effect of the above statement of Dr. C.B. Singh could only be that he could have seen the island from a distance of 6 yards. He was making the statement as a layman and not as an expert or Engineer. Hence, his opinion that if he had seen the island from a distance of 6 yards he could have avoided the accident by swerving the car to the left can be shown to be wrong. Even on applying the brakes, the car would not come to dead stop immediately. Dr. C.B. Singh evidently did not take into consideration the 'lag distance'. Even before stopping the car would cover some distance. In the book 'Highway Engineering' (1971 Edition) S. K. Khanna and C. E. G. Justo have analysed the stopping distance of a vehicle. They observe at page 98 as follows:--
'The total stopping distance of a vehicle is the sum of
(i) the distance travelled by the vehicle during the total reaction time (which is known as lag distance) and
(ii) the distance travelled by the vehicle after the application of the brakes to a dead stop position (which is known as the braking distance.)'' At page 96 (supra) it is remarked that the distance within which a motor vehicle can be stopped depends upon the factors listed below:
(a) Total reaction time of the driver (b) Speed of the vehicle
(c) Efficiency of brakes
(d) Frictional resistance between the road and the tyres and
(d) Slope of the road surface.
Total reaction time of the driver is the time taken from the instant the object is visible to the driver to the instant the brakes are effectively applied. The amount of time gap depends on several factors. During this time, the vehicle travels a certain distance at the original speed or the design speed. The total reaction time may be split up in two parts.
(i) the perception time and
(ii) the brake reaction time.
The perception time is the time required for a driver to realise that the brakes must be applied. It is the time from the instant the situation is perceived by the driver to the instant he realises that the vehicle needs to be stopped. The perception time varies considerably from driver to driver and also depends on several other factors such as speed of the vehicle, distance of the object and other environmental conditions.
The brake reaction time also depends on several factors including the skill of the driver, the type of the problem and various other environmental factors. Often the total brake reaction time of the driver is taken together.'
21. It is erroneous to assume that the car would have stopped immediately on applying the brakes. We have already referred at length to the limited visibility at the place of the accident, the absence of reflectors, head-lights, ruby lights and to other adverse factors. In these circumstances, it was not likely that the plaintiff would be able to notice the traffic inland from a longer distance and even if he did notice it from 5 or 6 yards, he would take time to react and during this period some distance technically known as 'lag distance' would be travelled by the car. We have believed the evidence that the plaintiff was driving the car at a speed of 15-20 miles per hour. Calculating on that basis the car would travel 29 ft. 4 inches and 22 feet in one second at a speed of 20 miles and 15 miles per hour respectively. It is stated in the book 'Highway Engineering' at page 99, 'The total reaction time of average drivers for normal situations may be assumed to be 3 seconds. In three seconds the vehicle in question according to the speed mentioned above would travel 29 yards 3 feet and 22 yards respectively. It is quite plain that even if the plaintiff Dr. C.B. Singh had noticed the traffic Island from a distance of 5 or 6 yards and applied the brakes, his car would have dashed against the traffic island.
22. Thus it is fully established by the evidence in the case that the plaintiff was not negligent, he was not driving the car at an excessive speed and the defence of contributory negligence is devoid of substance. The accident was caused on account of the gross negligence of the defendant and the complete absence of precautions which should have been observed by it. If there is a legal obligation to do something, omission to do so is negligence provided the accident can be attributed to it. The public has a right to use the roads for all reasonable purposes and if it is established on the facts of the case that the Board or the local authority has not sufficiently discharged, its obligation to keep the road reasonably free from danger, negligence on its part cannot be doubted. There is no principle of law which enjoins on the users of the road to be extra-astute. A driver, prudent and reasonable, is not expected to drive on the assumption that he would meet with improbable obstructions on the highway, otherwise there would be impetus to law breakers. A person driving the car at night has aright to assume that the road ahead of him is bereft of obstructions and that dangers around are indicated by proper safeguards or forewarning in the shape of signals by light etc. This implies that there should be no unlighted object left on the road at night. The visibility of an obstruction to a person driving the vehicle must be fully assured by adequate precaution. Authorities responsible for managing the roads cannot take shelter under plea that the driver should have seen the obstruction. Such complacency on the part of a local authority or Board does not possess the sanction of law.
23. The next question relates to the quantum of damages. The most important remedy which is available to a victim of tort is award of damages. The conventional classification of damages if made under two heads--general and special. General damages are those which the law presumes to flow from the negligence complained of. These damages must be proved, but it is not necessary to allege them in detail in the statement of claim. Special damages mean some specific item of loss which the plaintiff alleges is the result of the defendant's negligence in the particular case, although it is not presumed by the law to flow from the negligence as a matter of course. Full particulars of all special damage must be given. The orthodox approach was to bring the various heads of damages under one or the other of these two classes, but the practice of the courts has demonstrated that these heads often overlap and it is not always possible to maintain the distinction between them. Another classification which seems to have evolved in actions for personal injury is based on the distinction between; damages which are capable of substantially exact pecuniary assessment and those which are hot In this sense, 'special damages' refers to loss which is capable of substantially exact pecuniary assessment. It thus includes any loss of earnings suffered by the plaintiff which has accrued by the date of the trial It also includes such other items as- legal expenses, loss of pension rights, reduction of prospects of marriage and even the consequent inability to pursue one's hobby etc. General damages on the other, hand, may be said to refer to non-pecuniary loss such as pain and suffering, loss of expectation of life, loss of aminity, the injury itself etc. Winfield in his book 'On Tort' (Eighth Edition) classifies damages under two broad heads, namely, non-pecuniary and pecuniary loss.
23-A. The ambit of non-pecuniary losses covers, 'the injury itself and not merely; 'the consequences of injury'. It is not necessary that the injury must result in a disability, permanent or partial. In this connection it would be appropriate to refer to the general background of the Law of Damages arising from a personal injury, which was succinctly expressed in the following passage from the judgment of Cockburn, C.J. in Phillips v. South Western Rail Co., (1879) 4 QBD 406 at p. 407:
'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 an injury; the pecuniary loss sustained through inability to attend to a profession or business as to which again, the injury may be of a temporary character, or may be such as to incapicitate the party for the rest of his life.'
(Munkman's book 'Damages for personal injuries and Death,' Fourth Edition, page 102.)
24. The above passage brings out the idea that the bodily injury sustained in itself furnishes a separate head for award of damages, apart from its consequences which may constitute other factors for awarding damages or compensation. Winfield in his book 'On Tort' Page 685 (Eighth Edition) observes:--
'It must not be forgotten, however, that the injury itself is a proper subject of compensation and that damages may be awarded for an injury, quite apart from pain and suffering, even though the injury causes no disability whatever.' The underlying principle is the sanctity of human personality on which the increasing accent of both Municipal and International Law in recent times is becoming apparent Applied to tort it means damages resulting from the loss or impairment of bodily integrity, irrespective of whether there is loss of earning capacity or amenities. As Munkman states (supra, page 107);
'In principle, the loss of bodily integrity gives a right to damages even if there is no damage at all to earning capacity or to the enjoyment of life. Thus damages have been awarded for the removal of the spleen, an internal organ which apparently serves no indispensable physiological purpose.'
In Forster v. Push, (1955) CLY page 741 Jones, J. awarded 500 pounds for rupture and subsequent removal of the spleen, though there was no evidence that the absence of the spleen caused any disability. Even making allowance forpain and suffering and for the scar left by the operation, a substantial part of the award was clearly for the loss of the organ itself,
25. 'Pain and suffering', to use the customary phase, is recognised by law as another ground for grant of damages, per Lord Halsbury, L. C. in 'The Mediana (1900) AC 113 at p. 116--It is enumerated as a distinct factor from bodily injury in the passage extracted from the judgment of Cockburn C.J. (supra). This head of damages includes both physical pain and mental anguish caused by the injury. A person is entitled to damages for the mental suffering caused by the knowledge that his life has been shortened and that his capacity for enjoying life has been curtailed through physical handicap. 'Damages for pain and suffering are clearly incapable of exact estimation and their assessment must necessarily be a matter of degree. They must be assessed on the basis of giving reasonable compensation for the actual prospective suffering entailed' Charlesworth 'On Negligence' (Fifth Edition) (page 137). As Bramwell L. J. said, the proper direction for a jury was : 'You must give the plaintiff a compensation for his pain and bodily suffering of course it is almost impossible for you to give to an injured man what can be strictly called a compensation, but you must take a reasonable view of the case and must consider under all the circumstances, what is a fair amount to be awarded to him'. Prospective as well as past suffering must be taken into consideration. As Greer, L. J. said in Heaps v. Perrite Ltd., (1937) 2 All ER 60:
'We have to take into account not only the suffering which he had immediately after the accident but the suffering that he will have throughout his life in future.'
26. In the case in hand both theappellants in their plaints claimed damages for the non-pecuniary loss suffered by them, under the heads, 'permanent impairment' and 'physical pain andmental shock'. They correspond the twocategories of 'the injury itself and 'painand suffering' enunciated above. Dr.C.B. Singh, plaintiff in the original suitNo. 222 of 1955 claimed the followingcompensation for the injuries and losssuffered by him:--
For permanent Impairment and loss of earningcapacity
Loss of income for two months
Physical pain and mental shock
For general damages and other injuries
In the First Appeal No. 429 of 1958 arising out of the above suit the appellant, however, confined his claim to a sum of Rs. 10,000/- only. We are of the opinion that he has succeeded in partly establishing the above claim. The learned trial Judge, even though he dismissed the suit, proceeded to calculate the damages and he assessed the general damages at Rs. 2,000/-. This is clearly erroneous assessment Dr. C.B. Singh (P.W. 6) deposed that the injuries suffered by him and other persons i.e. the appellant in the other appeal were noted in the hospital. He was treated there for about a week or ten days, that he had not completely recovered from the injuries which he received, there was a permanent disability in the power of his forearm, the index finger and the thumb of the right hand and the right shoulder. He stated, 'The grip of my index finger and thumb have become weak and now I cannot carry out operations for 9 or 10 hours continuously which I used to do before. Now I can carry out 1 or 2 operations whereas formerly I could do 8 or 10 operations at a stretch without any pain. The same thing is about my shoulder. The permanent disability has affected my earning capacity appreciably......'
'After a week or 10 days I resumed my work normally. I was not able to do the full work as before the accident. I took some leave due to the accident.........'
'After the accident the number of operations which I perform were considerably reduced........,' Even now I am unable to perform the same number of operations which I could perform before the accident.........' 'The injuries which
1 have given in my statement above are of a permanent and partial nature.........'
'The injury which I sustained on the neck and the shoulder affected the brachial plexus and this injury is responsible for the weakness in the raising of the shoulders and the weakness of the forearm and the thumb and the index finger.'
27. The injuries of Dr. C.B. Singh were examined by Dr. A. N. Razdan (P.W. 14), Reader in the Department of Surgery in the Medical College, Agra, He proved the injuries. Exhibit 11, the bed head ticket of Dr. C.B. Singh indicated that injuries NOS. 6 and 7 mentioned therein were the result of brachial plexus injury in the neck. Dr. Razdan stated that such injury would leave a permanent or partial disability. Dr. C.B. Singh is an eminent surgeon and a very respectable person of high status and we find no reason to disbelieve him. His statement is corroborated by the medical evidence in the case. It is fully established that he suffered a permanent, partialdisability. He unequivocally stated that he had not been able to get rid of the disability even now and the injuries had permanently impaired him. We have already observed that the 'injury itself', 'the loss of bodily integrity' gives a right to damage, even though no disability may be occasioned and there may be no loss to earning capacity or the enjoyment of life. On the evidence we are satisfied that Dr. C.B. Singh was not only afflicted with permanent impairment of his body but his earning capacity must also have been adversely affected by the injuries sustained by him. Even irrespective of those factors the factum of bodily injury itself entitled him to damages. On this account he claimed a loss of Rs. 22,000/- in the plaint. We are, however, inclined to evaluate his damages at Rs. 2,000/- under this head. For physical pain and mental shock he had claimed Rs. 3,000/-. Dr. A. N. Razdan (P.W. 14) deposed 'These injuries were of such a nature that they would cause physical pain, mental shock to the injured person.' From the statement of Dr. C.B. Singh, supported by that of Dr. Razdan, it is manifest that the plaintiff suffered pain and mental shock. Further, his suffering was of an enduring character and he could not be said to have become completely immune from it even later. We have already held on the strength of authorities that pain and suffering constitute a distinct ground for award of damages, and prospective as well as past sufferings have to be reckoned with. As Mayne observes in his Treatise on Damages' (1946, Eleventh Edition, page 485):
'Pain and suffering undergone by the plaintiff are also a ground of damage. 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.'
We assess the damages on this count at Rs. 3,000/-. Thus, Dr. C.B. Singh is entitled to general damages of Rs. 5,000/-. We are also satisfied on an appraisal of the evidence in the case that he suffered a loss of income for two months but since he has failed to adduce adequate evidence to prove the precise amount of such loss, we are unable to award special damages to him.
28. The same principle applies to the case of Dr. R.V. Singh, plaintiff in original suit No. 224 of 1955. In the plaint he claimed the following, compensation for the injuries and loss suffered by him:--
For physical pain .
For mental shock.
For loss of profes^ sional business for two months.
For permanent impairment and loss of earningcapacity.
General damages for otherinjuries etc,.
In the First Appeal No. 434 of 1958 arising out of the above suit he confined his claim to a sum of Rs. 10,000/-. The trial Judge assessed the general damages, in case the plaintiff's suit was decreed, at Rs. 1,500/-. That appears to be clearly erroneous. The injuries received by Dr. R. V. Singh consisted of lacerated wounds, contusions and fracture to the left fabula.' The right canine tooth was also broken. His ankle joint was fractured and plastered. His injuries were proved by Dr. B. S. Lal (P.W. 10), Resident Surgical Officer in Agra Medical College in 1955. The X-ray plate was proved by Dr. P. N. Haldar (P.W. 11), Head of the Department of Radiology, Agra Medical College. Dr. R.V. Singh stated, 'I received injuries as a result of the accident. I got a lacerated wound over the lower lip. I got my canine tooth broken. I got multiple bruises and abrasions. I got my left ankle broken. I got severe pain and mental shock. For about a week I stayed at Agra after the accident I could not stand or operate for about 2 months after the accident. I have a permanent partial disability of the left ankle because of the reduced strength and power of endurance of that joint, as a surgeon my work requires long standing hours and this joint is of special importance for me. This disability has affected by earning capacity as I cannot put in the same amount of work as I could do before the accident.........' 'Dr. A. N. Razdan treated me at Agra. When I went to Lucknow Dr. S. C. Misra treated me there.........'
'If I stand for 2 or 3 hours my leg starts aching. If I have to carry out a major operation which might take 5 or 6 hours, then I have to do with the aching leg.' Dr. A. N. Razdan (P.W. 14) speaking about the injuries of Dr. R.V. Singh stated, 'There was a gross injury in the ankle joint of Dr. R.V. Singh. When there is a fracture, we call it a gross injury. In the X-ray Exhibit 17/1 there is an indication about the displacement or dislocation of the bones forming the ankle joint. Such an injury to the ankle joint will certainly affect the endurance and the capacity of the injured person'. In our opinion it is proved by the medical evidence in the case that Dr. R.V. Singh also received permanent, partialdisability of the left ankle because of the reduced strength and power of endurance of that joint. A surgeon's work requires long standing hours and this joint is of special importance for him. It is bound to affect his earning capacity inasmuch as he cannot put the same amount of work as he could do before the accident. The fact that the fracture was properly set is not inconsistent with the conclusion that the ankle joint had left a permanent partial impairment. The statement of Dr. R.V. Singh that he cannot stand for two or three hours, and his leg starts aching illustrates his permanent disability. On the whole, the injuries and the pain and suffering caused to him were almost as severe as in the case of Dr. C.B. Singh. Therefore, we hold that he is entitled to Rs. 2,000/- as damages on account of injuries and Rs. 3,000/- on account of the pain and suffering undergone by him. We assess his total damages at Rs. 5,000/-. We have recorded a finding that the injuries resulted in permanent, partial impairment and also adversely affected his earning capacity. In law even without such findings the appellant Dr. R.V. Singh, would be entitled to the damages aforementioned on the ground of his bodily injuries and the pain and suffering entailed by them. He has, however, failed to prove by cogent evidence any special damages, such as the precise amount of loss of professional business and earning capacity. He is, therefore, entitled only to general damages amounting to Rs. 5,000/-.
29. For the reasons stated above we set aside the decrees of the court below and pass a decree for damages for a sum of Rs. 5,000/- in favour of the appellant in each appeal against the defendant-respondent.
30. In the result the appeals Nos. 429 and 430 of 1958 are partly allowed with proportionate costs. First Appeal No. 434 of 1958 is dismissed.