M.P. Mehrotra, J.
1. This second appeal arises out of a suit for the recovery of damages. The trial court substantially decreed the suit. But on appeal the lower appellate court set aside the decree and judgment of the trial court and dismissed the suit. The plaintiff has now come up in the instant second appeal.
2. The facts in brief are these: on 19th May, 1961, the plaintiff, Smt. Bhagyawati Mittal, was travelling in one of the buses belonging to the U. P. Government Roadways. She was travelling from Delhi to Muzaffarna-gar. It was being driven by the defendant respondent No. 2. Ram Kumar. An accident involving this bus took place near the municipal toll barrier of Muzaffarnagar. The plaintiff sustained injuries due to this accident. Certain other consequences resulted directly as a result of this accident causing injury to the mental and bodily health of the plaintiff. She had to undergo medical treatment. Stilt. despite medical treatment, certain permanent disability in her right forearm came to stay. The plaintiff alleged that the accident was caused due to the defect in the machinery of the vehicle and also due to rash and negligent driving of the bus driver who was also alleged to be incompetent for bis fob. The plaintiff claimed that she was entitled to Rupees 30,000/- as total damages made up of Rupees 5,000/- for medical expenses etc. and Rupees 25,000/- as general damages. However, she claimed only a total sum of Rs. 15.000/- in the suit -- Rs. 10,000/- for general damages and Rs. 5,000/- for medical expenses.
3. The defence was that there was no defect in the vehicle and the driver was not at all negligent or rash in driving the same. It was denied that the driver was incompetent The accident was alleged to have taken place due to an attempt on the part of the driver to save a child on the road. It seems that the child is alleged to have appeared all of a sudden before the vehicle and the driver was said to have made a great attempt to save the child. He had to apply the brakes suddenly with force. In the process the brakes failed. In this situation it was contended that it was an inevitable accident and not attributable to any human defect. Therefore, the defendants were not at fault and the plaintiff could not claim any damages on account of the alleged negligence on the part of the defendants. In any case, it was claimed that the damages claimed were excessive and far too remote.
4. The trial court framed the following three issues:--
1. Whether the accident in question was the result of rashness and negligence on the part of the driver and also of the defective mechanism as alleged in paras 6 and 7 of the plaint?
2. Whether the plaintiff sustained the injuries, mental shock and bodily pain on account of the accident in question as alleged in para. 8 of the plaint? If so to what effect?
3. To what amount of damages, if any, is the plaintiff entitled against the defendants or any of them?
5. All the issues were decided in favour of the plaintiff. The trial court awarded the full sum of Rs. 10,000/- as general damages. It further awarded a sum of Rupees 4029/- as special damages. In all, thus, a decree for Rs. 14,029/-and annas four was passed in favour of the plaintiff against the defendant. The defendants went up in appeal to the lower appellate court and, as stated above, the said court set aside the trial court's judgment and decree and dismissed the suit. The lower appellate Court recorded a finding in these words :
'Not only has the plaintiff failed in proving that the bus was being driven rashly or negligently or at a high speed but also failed in proving that it had any such mechanical defect which could have been found out on a normal checking. On the preceding night the vehicle had been checked thoroughly by the Assistant Foreman and found to be in perfect working order.'
6. On the said finding, the lower appellate Court said that it was really not necessary to go into the question of damages because the plaintiff was not entitled to any amount. However, it did examine the controversy and came to the conclusion that
'The maximum amount that could be awarded as general damages was Rs. 5,000/-.'
7. So far as special damages were concerned, it observed:
'In round figures not more than Rs. 1,000 could have been, in my opinion, awarded under the head 'treatment'.'
8. Shri B. Dayal, learned counsel for the plaintiff-appellant, has raised the following submissions:
(1) The lower appellate court was wrong in holding that there was no defect in the mechanism of the vehicle. Reliance was placed on the following cases:--
1. Lakshmiammal v. State : AIR1975Mad157 ; 2. Henderson v. Henry E. Jenkius and Sons. (1970 ACJ 198); 3. Henderson v. Henry E. Jenkins and Sons, (1969) 3 All ER 756.
(2) The lower appellate Court was wrong in thinking that the sum of Rs. 10,000/-which was awarded by the trial court as general damages was excessive. Reliance was place on the following cases:
1. M. P. State Road Trans. Corporation Bairagarh, Bhopal v. Sudhakar, (1977 ACJ 290) : (AIR 1977 SC 1189); 2. Ramesh Chandra v. Randhir Singh : AIR1977All330 ; 3. Manmohan Sarup Kaushal v. Mela Ram, (1977 ACJ 140) (Delhi); 4. Government of India v. Jeevaraj Alva, (1970 ACJ 221) : (AIR 1970 Mys 13); 5. H. West and Sons Ltd. v. Shephard, (1963) 2 All ER 625; 6. Nance v. British Columbia Electric Rly. Co. Ltd., (1951 AC 601).
(3) The lower appellate Court was wrong in holding that special damages did not stand proved merely on the ground that the necessary vouchers etc. were not forthcoming in respect of the amount claimed. Reliance was placed on the following cases:
1. U. I. F. and G. Insurance Co. v. Sayar Kanwar, (AIR 1976 Raj 173); (2) Ramesh Chandra v. Randhir Singh : AIR1977All330 .
(4) The lower appellate Court erred in not observing the principle that the trial court's assessment of the amount of damages should not ordinarily be interfered with by an appellate Court. Reliance was placed on the following cases:
1. Supdt. of Police Dharwar v. Nikhil Bindurao Galagali (1975 ACJ 307) : (AIR 1975 Kant 138); 2. Government of India v. Jeevaraj Alva, (1970 ACJ 221) : (AIR 1970 Mys 13); 3 Ward v. James, (1965) 1 All ER 563; 4. Nance v. British Columbia Electric Rly. Co. Ltd., (1951 AC 601).
(5) Lastly, the lower appellate court was wrong in treating that the plaintiff's status was not relevant in awarding damages. Reliance was placed on:
1. M. P. State Road Trans. Corporation Biaragarh, Bhopal v. Sudhakar (1977 ACJ 290) : (AIR 1977 SC 1189).
9. On the other hand, learned counsel for the respondents, Shri S. K. Sharma made the following submissions :
(1) The findings recorded by the Court below are findings of fact and no interference can be made in the Second Appeal.
(2) The lower appellate Court was justified in returning the findings on the controversy about the alleged negligence of the defendants and on the amount of damages to be awarded in case the plaintiff had succeeded in proving her allegation about the defendant's alleged negligence. Counsel placed reliance on the following cases :
(1) F. D. Transport Co. v. Madan Lal : AIR1977SC1482 Afsar Shaikh v. Soleman Bibi : 2SCR327 Soma-wanti Marwah v. Surjit Singh (1975 ACJ 233) (Delhi); (4) Atlantic (East) Ltd. v. Ram Prakash, (1975 ACJ 427) (Delhi); (5) C. B. Singh v. Agra Cantonment : AIR1974All147 Rani Hemant Kumariji v. New India Assurance Co. Ltd., (1974 ACJ 284) (Madh Pra); (7) A. Harsha v. Dr. K. V. Kama, (1973 ACJ 57) : (AIR 1973 Mys 162); (8) Hindustan General Ins. Society Ltd. v. Satish Chandra Paul, (1972 ACJ 453) : (AIR 1972 Tripura 9); (9) Yoginder Paul Chowdhry v. Durga Dass Punj, (1972 ACJ 483) (Delhi).
10. The first question which has to be decided is as to what extent the findings of the court below can be said to be findings of fact binding in this second appeal. It is obvious that certain findings recorded by the court below are pure findings of fact. For example, the findings as to how the accident took place, what was the speed at which the bus was being driven, the thickness of the brake pipe at the time when the same burst, the nature of injuries suffered by the plaintiff are questions of fact. However, from those proved facts, the ultimate inference to be drawn whether there was any negligence on the part ot the defendants in the maintenance and the operation of the vehicle will not be a pure question of fact. In my opinion, a mixed question of fact and law is raised in such a situation. In this connection a reference may be made to Phulchand Khandelwal v. Governor General, (AIR 1949 Pat 110), Rikhailal v. Banarsi Singh : AIR1932All139 . B. B. & C. I. Rly. v. Dwarka Nath : AIR1936All771 , D. K. Lakshmiah v. Union of India (AIR 1969 Andh Pra 386), Subbraratham v. Gunavanthalal (AIR 1937 Mad 472), N. Rak-shit v. Commr. Bhardeshwar Municipality, ((1969) 73 Cal WN 88) and Bore Gowda v. B. Nagaraju, (AIR 1969 Mys 8). Similarly, controversy about the damages, if any, to be awarded to a plaintiff on the ground of the defendants' negligence is also a mixed question of fact and law. See Sree Meenakshi Mills Ltd. v. I. T. Commr. 0044/1956 : 1SCR691 I, therefore, hold that I am entitled to interfere in the second appeal on the question whether the defendants' negligence from proved facts stands established or not. Similarly, I am entitled to determine whether in the facts of the case, the correct amount of damages has been assessed by the courts below or not.
11. I shall next take up the question of defendant's alleged negligence as attributed by the plaintiff. The trial court had held that the bus was being driven rashly and negligently. The trial court also disbelieved the defence version that the accident was caused in an attempt of the driver to save a child who had all of a sudden appeared before the bus. The lower appellate court, however, reversed the said finding. It held that the bus was not being rashly or negligently driven. The defence version that the accident was caused due to the appearance of the child was believed. So far as the mechanism of the vehicle was concerned, the lower appellate court observed :
'The thickness of the brake pipe had certainly diminished from two units to 1/20th unit but that was a latent defect which could not have been found out on a normal checking and there does not appear any circumstance in view of which the defendant ought to have felt that some thing more than a normal kind of inspection was required to put this vehicle on the road. As said above, only on the preceding night it had been thoroughly checked by the Assistant Foreman and found to be in perfect working order. In the circumstances the plaintiff cannot be held entitled to get any damages from the defendants.'
In my opinion, the ultimate inference which the lower appellate court has drawn is not justified. The said court went wrong in law in thinking that if a defect was so latent that it could not be obvious to the naked eye, then the plaintiffs claim necessarily stood nonsuited. It has to be emphasised that those who ply vehicles on the public road, and particularly those who do it for hire from day-to-day, owe a duty to see that parts which get worn with the passage of time are checked in the garage and replaced. When the thickness of a brake pipe gradually diminishes over a period of time then the owner of the vehicle is under a duty to see that he replaces the same from time to time taking into consideration tile normal duration over which such a brake pipe can be safely relied on to remain in operation. Obviously, there can be no fixed period and probably that will depend on the user of the vehicle, whether it is intensively used or it is sparingly used. However, the owner of the vehicle cannot certainly be allowed to sleep over the matter and feel that he would change the brake pipe only when the same some day bursts on the road causing some sort of accident It has come in evidence that the roadways used to maintain records which could have shown as to when the last change in the brake pipe in the vehicle in question had been effected. No such record was, however, produced before the court. It is obvious in the facts of the instant case that the thickness of the brake pipe had been reduced in a most dangerous manner from two units to 1/20th unit. It would be highly dangerous for public vehicles carrying large number of passengers to be plied where brakes are in such a highly unsatisfactory state. In my opinion, it almost amounts to playing with the lives of the passengers. Brake is the most sensitive part of a vehicle and it has to be maintained in an absolutely fit condition. How and in what manner it should be done is for the authorities of the roadways to decide. If it is so necessary, taking into consideration the mechanical aspect of the matter, such brake pipes may be replaced at short intervals so that no risk is involved in running the vehicle. The two cases on which Shri B. Dayal has placed reliance in this connection may now be looked into. The head note in : AIR1975Mad157 , which is a Division Bench authority of the said Court, is reproduced below (at p. 159):
'The fact of sudden failure of the brake is not by itself sufficient to hold that the accident was not due to negligence. The fact that the driver of the bus could not have anticipated such failure of the brake also does not alter the position. In all cases of such latent defects the defendant can get over the liability only if it is further shown that latent defect was not discoverable in spite of reasonable care.
In this case there was no evidence that periodical checking of the brake system had been done. But even that is not sufficient. It ought to be further shown that considering the age of the vehicle and other circumstances whether reasonable care did not require removal of the pipe carrying brake fluid at suitable intervals so that even the hidden parts of the pipe could be inspected.'
12. The other case reported in 1970 ACJ 198 by majority held that it is for the owner of the vehicle or those who run the vehicle
'to prove that in all the circumstances which they knew or ought to have known that they took all proper steps to avoid danger.' In the said case also there was a failure of the brake in a sudden manner. In the speech of Lord Reid the facts have been summarised in this manner:
'The brakes were hydraulic, the pressure being transmitted through fluid in a tube to the brakes on the wheels. Some ten teet of this tube was carried in the angle of a chassis girder and held in position by clips, so that, on inspection while the tube was in situ, only about 60 per cent of its circumference could be seen. This part of the tube was in tolerably good condition but when the tube was removed the day after the accident it was found that a larger part of the back, which could not be seen before it was removed, was very badly corroded. A hole was found at one point and the brake failure had been caused by the liquid in the tube escaping through that hole when pressure was applied to the brake pedal, so that no pressure was transmitted to the brakes on the wheels.
It appears that it is not very uncommon for a brake to become soft or spongy owing to a small leak from some part of the braking system. When that happens the driver gets a warning that some thing is wrong and then it would be negligent to proceed until the leak had been traced and stopped. But the instantaneous development of a fairly large hole in one of these pipes such as that which has been held to have occurred in this case is very uncommon.
The tube was a steel tube, the thickness of the wall being Order7 mm and originally it had been coated first by a thin film of copper and on the outside by aluminium paint The lorry was five years old and its mileage was probably about 150,000, otherwise we know nothing of its history apart from the facts that a fitter employed by the second respondents gave evidence that it had always been properly serviced, and that several parts of the braking system had been renewed some 12 months earlier. It had been regularly washed and the underparts had been steam cleaned some nine months earlier, and there had been regular visual inspection of the visible part of this tube. But the corrosion at the back of the tube was so bad that at the point where the hole was found that thickness of the wall had been reduced from Order7 mm to 0.1 mm.
In their defence the respondents admitted that the accident was caused by a sudden brake failure and pleaded that this resulted from a latent defect which occurred without any fault on their part and the existence of which was not discoverable by the exercise of reasonable care by them. Their case is that they have proved that regular inspection of the outer visible part of these tubes is all that ordinary practice requires, that they did that, and that they were not bound to do more. But the extent of the inspection which is necessary must in every case depend on whether the owner of the vehicles is or ought to be aware of any facts which should indicate to him that some unusual defect may have developed which would not be disclosed by the normal kind of inspection.'
13. It seems to me that the ratio laid down by the House of Lords will squarely apply to the instant case also. But it is striking that the defendants in the instant case did not lead any evidence which would have given us some detail as to the mileage the vehicle in question had done when the accident took place, the last replacement of the brake pipes and the time and manner in which it was done. The burden was on them to have placed all these details before the court. The fact that the thickness of the brake pipe was so strikingly diminished from 2 units to 1/20th unit is itself indicative that the brake pipe had not been replaced for a long time and there had been intensive user of the vehicle. Such a circumstance can only be treated as utter negligence on the part of the owners of the vehicle and those who were responsible for its maintenance and upkeep. I, therefore, reverse the finding of the lower appellate Court and, hold that the defendant-respondent No. 1, namely, the State of U. P. was negligent in the maintenance of the vehicle and the accident was caused directly due to such negligence.
14. The next and more difficult question is to quantify damages which should be held to be payable. So far as special damages are concerned, however, there is not much difficulty, It is not disputed from the Bar that such special damages have to be proved in their detail. In the facts of the instant case the plaintiff claimed a sum of Rs. 5,000/- on account of medical treatment and other connected expenses. She relied on a copy book which was alleged to have been written at her dictation by her daughter-in-law. The lower appellate court has given cogent reasons tor not placing much reliance on the evidence adduced on behalf of the plaintiff in support of the claim for special damages. The said court has correctly observed that the alleged payment to the nurse @ Rs. 50/- per day from 20th May. 1961, to 4th July 1961 cannot be accepted inasmuch as the nurse in question has not been produced in the witness-box and there is no other satisfactory evidence to prove the said expenditure. Shri Dayal has taken exception to the lower appellate Court placing too much reliance on the availability of vouchers etc. It is true that it is not an inflexible rule that courts must insist on the availability of vouchers and receipts. However, the decided cases are both ways. In some cases the courts have placed reliance and in others they have gone by general consideration. However. even apart from the non-availability of vouchers etc., in the present case the lower appellate Court has given other reasons also why the trial court's figure could not be accepted and, as I stated above, I am satisfied that the finding of the lower appellate court in this appeal does not call for any interference. These are pure findings of fact and, in my opinion, the figure of Rs. 1,000/- laid down in the lower appellate court's judgment as special damages should not be disturbed in this appeal.
15. The real difficulty, however, is in relation to the quantification of general damages. A passage from the speech of Lord Morris in the decision of the House of Lords reported in (1963) 2 All ER 625 is apposite:
'My Lords, the damages which are to be awarded for a tort are those which 'so far as money can compensate, will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act '(Admiralty Commrs. v. Susquehanna (Owners), (1926) All ER 124 of p. 127). The words 'so far as money can compensate' point to the impossibility of equating money with human suffering or personal deprivations. A money award can be calculated so as to make good a financial loss. Money may be awarded so that some thing tangible may be procured to replace something else of like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach.
By common assent awards must be reasonable and must be assessed with moderation.' Despite the desirability of enforcing uniformity in the matter of awards it has been recognised that there is a deep variance in the amounts awarded as general damages. Of course, that has, to a great extent, to depend on the difference in the nature of injuries involved in the different cases and, therefore, ultimately the amount to be awarded as damages will be basically dependent on the nature of injuries and the after effects of such injuries in the case of a particular plaintiff. Still however, a reference to the cases which have been cited at the Bar may; be enlightening.
16. In 1977 ACJ 290 : (AIR 1977 SG 1189) the Supreme Court upheld the enhancement by the High Court of the figure of general damages awarded by the Tribunal from Rs. 10,000/- to 20,000/-. The nature of injuries sustained will appear in the following passage from the judgment of the Supreme Court (at p. 1191 of AIR SC):--
'The other appeal (C. A. No. 2255 of 1968) relates to the injury sustained by a boy aged about four years. He suffered compound fracture of his right tibia and fibula lower third near the ankle joint with infection of the wound. Skin grafting had to be done and the boy had to remain in hospital from June 25 to August 4, 1961. According to the doctor who examined him, the child was likely to develop a permanent limp which might require another operation at the age of 16 years or so. In any case, in the opinion of the doctor the deformity was certain to persist till the boy was 16 years when another operation might remove it. The Tribunal awarded Rs. 10,000/- as damages and Rs. 890/- as special damages. The High Court increased the general damages to Rs. 20,000/-. It appears from the evidence that the boy comes from a well-to-do family. Though the possibility was there of the deformity being removed by surgical operation when he grew up to be 16 years, the other possibility cannot be altogether ruled out. That being the position, we are not inclined to interfere with the sum awarded by the High Court.'
17. In : AIR1977All330 the Division Bench laid down as follows :--
'Coming to the second part of the contention, the relevant section in the Motor Vehicles Act regarding awarding of compensation is Section 110-B. It only states that the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just. It would thus appear that the Claims Tribunal has a very wide discretion in the matter of award of compensation. When a person is physically disabled on account of any accident, he is not only deprived of his earning, but he also suffers in mind and body on account of the accident. Throughout the rest of his life he suffers with a feeling that he is no more a normal man and cannot enjoy the amenities of the life as a normal man can do. In the instant case one foot of the claimant had to be amputated and the functioning of the other leg also got impaired on account of the fracture with the result that throughout the rest of his life he cannot walk except with the aid of crutches. It is, therefore, obvious that throughout the remaining part of his life he would be a crippled man. He will find himself handicapped in the company of other fellow beings. The fact that he will not be able to even walk freely will be a source of permanent mental torture for him. This is besides the fact that, for some time after the accident, the claimant would have also suffered physical pain and agony. The compensation awarded to a person for this mental and physical pain and suffering is separate from the compensation that is awarded to him on account of his loss of earning capacity, and it has been so recognised in a number of cases......'
18. In this case this court upheld the award of a sum of Rs. 20,000/- on account of pain and suffering. The nature of injury suffered was undoubtedly very very serious in this case. The claimant's right foot had to be amputated on account of gangrene which was caused due to the loss of blood supply as a result of the injuries sustained in the accident.
19. In 1977 ACJ 140 the Delhi High Court upheld the award of Rs. 30,000/- as general damages to a girl named Miss Rachna who had received a permanent injury in her leg.
20. In 1970 ACJ 221 : (AIR 1970 Mys 13) the Mysore High Court (as it then was upheld the award of Rs. 25,000/- as general damages by the trial Court. The said court placed reliance on a passage in Winfield on Tort (7th Edition) at page 781.:
'Unsatisfactory though it may be. all that can be said is that the damages awarded should be fair and reasonable compensation for the injury bearing in mind all the relevant heads of damage, and that, so tar as is possible, the sums awarded should bear a reasonable relationship to one another. The need for consistency is now fully recognised by the courts, and if Judges can be persuaded to apportion the total sum awarded between the various heads of damage and to set out the factors which they take into account there is no reason why that consistency should not be achieved to a substantial extent. But it remains true that every case must ultimately be decided on its own facts and that 'the choice of the right order of figure is empirical and in practice results from a general consensus of opinion of damage awarding tribunals, juries, judges and appellate courts.'
21. Shri B. Dayal further emphasised that it is a settled rule regulating interterence by an appellate court that in the matter of award of damages by a trial court an appellate court should not ordinarily interfere merely on the ground that the latter would have awarded a different sum in the circumstances of the case. The classic exposition of this proposition is to be found in Nance v. B. C. Electric Rly. Co. Ltd.. (1951) AC 601 (PC) wherein it was laid down as under :
'Once the assessment of damages be by a Judge or a Jury, the appellate Court is not justified in substituting a figure of its own for that awarded below merely because it would have awarded a different figure if it had tried the case in first instance. Even 3 the tribunal of the first instance was a judge sitting alone, then before the appellate Court can intervene it must be satisfied that the Judge while assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one) : or short of this, that the amount award (sic) is either so inordinately low or inordinately larger it must be wholly an erroneous estimate of the damages.'
22. A reference may also be made to (1965) 1 All ER 563, 1975 ACJ 307 : (AIR 1975 Kant 138) and 1970 ACJ 221 : (AIR 1970 Mys 13).
23. On the other hand Shri S. K. Sharma placed reliance on certain cases which have been catalogued above. In : AIR1977SC1482 the Supreme Court upheld the enhancement of general damages from Rs. 7,000/- to Rs. 12,000/-. The nature of injury was like this. The claimant's one foot had been amputated and injury was caused to the other leg which gave a limp to the child.
24. In 1975 ACJ 427 the Delhi High Court upheld the award of Rs. 5.000/- as general damages. The claimant remained in plaster from toe to loin for 11 months and the injury had resulted in the shortening of a leg.
25. In : AIR1974All147 this court upheld the award of Rs. 5,000/- as general damages to each of the two claimants. The claimants happened to be medical practitioners of repute.
26. In 1974 ACJ 284 the Madhya Pradesh High Court upheld the award of Rs. 2,000/- as damages on account of shock and pain. It will be seen that in this case the two claimants had claimed Rs. 5,000/- and Rs. 15,000/- respectively as special damages. Hut both of them were awarded damages amounting of Rs. 2,000/- each.
27. In 1973 ACJ 57 : (AIR 1973 Mys 162) the Mysore High Court upheld the award of Rs. 10,000/- which was made by the Claims Tribunal in favour of the applicant by way of general damages. The injuries which were caused to the claimant in the said case were such that he had to remain in hospital for about 7 months and on account of mal-union of the bone, the leg had shortened by half inch.
28. In 1972 ACJ 483 the Delhi High Court in appeal reduced to one half the amount awarded by the Claims Tribunal as general damages. The Tribunal had awarded Rs. 3,000/- as such damages and in the appeal the lower appellate court reduced it because it was found that the claimant was himself guilty of contributory negligence. In the facts of the said case the claimant had remained under treatment for about two months and the injury had resulted in permanent partial disability.
29. In 1972 ACJ 453 : (AIR 1972 Tripura 9) the court of the Judicial Commissioner, Tripura upheld the award of Rs. 5,000/- as general damages to the claimant by the Tribunal. The claimant had remained in the hospital for about three months and he had sustained fracture and had to remain under plaster. The treatment continued for the period of about a year.
30. A reference may also be made to Halsbury's Laws of England, 3rd Edition, Volume 11, page 255 para 427 which is as follows:
'Personal injury. In a claim for damages !pr personal injury, whether caused by trespass, or by negligence, or by breach of statutory duty, 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, and 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.'
31. In Salmond on Tort, 13th Ed. 1961 at p. 736 it is stated as follows:--
'There are some kinds of damage for which no true compensation can be given in this world by any amount of money, no matter how elaborate an arithmetical computation is employed. This is particularly so with claims for loss of expectation of life and pain and suffering. Yet the courts are obliged to do the best they can. In such cases the plaintiff is entitled to fair and reasonable compensation, assessed in the light of previous rewards in respect of comparable damage. 'It would be paradoxical if the law refused to give any compensation at all because none could be adequate.' It might be better to say that such sums are acknowledgement of regret for having caused a hurt that is imponderable rather than a compensation properly so called.'
32. In the facts of the instant case the trial court dealt with the nature of the injuries while dealing with issue No. 2. Its finding can be usefully reproduced.
'In consequence of this accident, the plaintiff sustained the injuries. There is no dispute about that. She has detailed them in para 8 of the plaint. The written statement shows that it was admitted. The plaintiff has examined P. W. 2. Dr. Rhimsen and P. W. 3. Dr. Rule K. Arora to support her case. Dr. R. K. Arora has examined her immediately after the accident at the Civil Hospital, Muzaffarnagar. He had prepared an injury report which is Ex. 10 on record. There were as many as six injuries on the person of the plaintiff and injury No. 6 was of a serious nature. It was on the right forearm and around the wrist. The plaintiff has claimed that her forearm could not be cured and it had become permanently disfigured so much that she could not hold anything with this hand. Dr. Bhim Sen had taken the picture of this forearm and applied plaster of pans. The pictures are Exs. 6 and 7 on record. He has stated that the plaintiff was treated by him for some time for the shock, injuries and pain throughout the body caused on account of accident. He has stated that on account of shock and consequent worry blood pressure also might shoot. The plaintiff has stated that she had consulted Dr. Sen and Dr. Dora Swami of Delhi also and they had treated her. She had also stated about the injuries, mental shock and bodily pain caused to her as a result of this accident. She asserted that her general health had also been adversely affected and her heart had become weak. She had still to take injections for those ailments. No challenge was made by the defendants, to this. It thus bears out that the plaintiff sustained injuries, mental shock and bodily pain on account of the accident as alleged by her. This issue is thus decided accordingly.'
The lower appellate court has not set aside the said finding. It has, however, observed that the injuries in this instant case were not so serious as those which were involved in 1967 ACJ 202 (Delhi). It seems to me that in these circumstances the trial court's finding should be deemed to have been upheld by the lower appellate Court.
33. From the record it has transpired that the age of the plaintiff at the time of the accident was nearly 65 years and we must make a distinction between the cases of young children with a longer expectancy of life from the cases of aged persons such as the plaintiff where the expectancy of life is necessarily short. The trial court, in my opinion, disproportionately emphasised the status of the plaintiff. I am quoting the following para from the trial court's judgment:
'She has stated that she was the daughter of the late Chief Justice of Punjab High Court who was for some time a member of Privy Council also. Her husband was a retired Executive Engineer of the Railways and had served in England also for sometime. His salary at the time of retirement was Rs. 1,500/-. She has stated that her brothers were proprietors of Shamli Sugar Mill and her elder son is its Director. Her younger son was an Executive Engineer, posted in Rihand Dam Division. He was educated in Switzerland. Her elder grandson was a Captain in the Army. She has stated about her father-in-law as being a very well placed man and that she had been given a lot of property by her father and father-in-law.'
34. It is not clear to me as to what significance should in law of damages be given to the status of the claimant. As I have stated above, Shri Dayal placed reliance on 1977 ACJ 290 : (AIR 1977 SC 1189) where in passing the Supreme Court observed:
'It appears from the evidence that the boy comes from a well-to-do family.'
It is difficult to take it as the law laid down by the said court that the amount of damages should be determined in accordance with the respectability or status of a claimant. It may be that the situation of a claimant, the manner in which he is placed in life may have some relevance in determining whether his future movement will stand curtailed in view of the accident. But it is difficult to see that apart from such aspects of the matter the status per se should have a bearing on the amount of damages to be awarded for pain and suffering. I must confess that despite the number of cases which have been cited before me I find that this aspect of the matter has really not been thrashed out with sufficient clarity. However, I can hazard an opinion and it is this that in the facts of the instant case it seems that the trial court allowed its mind to be swayed too much by this consideration.
35. I agree with the learned counsel for the appellant that in the matter of the assessment of damages, the trial court's verdict has its own significance and it should not ordinarily be interfered with. This is, however, not a rigid principle and as will be seen from the aforesaid case law discussed above, the High Courts very often interfere with the figures awarded by the Claims Tribunal, and the Supreme Court upheld such enhancement. Shri B. Dayal sought to distinguish the cases on which Shri Sharma placed reliance on the ground that in most of the said cases the claims themselves were not on the high side and, therefore, the Tribunal or the High Court in appeal could not award higher figure. This contention is supported by some cases but in many cases high figures were claimed and yet low amounts were awarded. One such case pointed out by me is 1974 ACJ 284 (Madh Pra).
36. In my opinion, however, there is one aspect of the matter which must be held in favour of the appellant and it is this. The value of the rupee has strikingly gone down compared to what it was when the accident took place. The suit itself was instituted in 1962 and, this Court is entitled to take a judicial notice of the fact that the value of the rupee in terms of its purchasing power has depreciated to a very appreciable extent. A sum which should have been awarded in 1962 or in 1961 when the accident took place will not have the same significance in terms of purchasing capacity in 1977 when I have to determine the figure of damages. Taking into account all these considerations, I feel that I should not disturb too much the trial court's figure as the approach has necessarily to be empirical. I hold that under general damages the plaintiff should have been awarded Rs. 9,000/- and thus in all the plaintiff should have been granted a decree for Rs. 10,000/-.
37. So far as the question of costs is concerned, I think it would be in the interest of justice that the plaintiff should have, in the facts of the instant case, her proportionate costs but the defendants should bear their own costs.
38. The appeal is accordingly allowed. The plaintiff's suit shall stand decreed tor Rs. 10,000/- with proportionate costs throughout. The defendants shall bear their own costs throughout.