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Kumari Deepti Tiwari Vs. Banwarilal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. First Appeal No. 51 of 1963
Judge
Reported inAIR1966MP239
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96
AppellantKumari Deepti Tiwari
RespondentBanwarilal and ors.
Appellant AdvocateR.K. Varma, Adv.
Respondent AdvocateR.S. Dabir, Adv. for Respondents Nos. 1 and 3
DispositionAppeal partly allowed
Cases ReferredIn Wilson v. Pilley
Excerpt:
- - 7. it was argued by shri dabir that the applicant did not complain to dr. ford, 1937-3 all er 359 (379), it was observed by lord roche i regard impaired health and vitality not merely as a cause of pain and suffering, but as a loss of a good thing in itself' and greer, l. 1942 ac 601 :there is so much room for individual choice that the assessment of damages is more like the exercise of discretion than an ordinary act of decision. as a result of her injury, she had to give up the sport of 'motor-cycle scrambling',which she had formerly enjoyed with her husband......a fracture of the spine. she had to remain in the hospital for 3 months. she claimed rs. 8,400 as general damages and rs. 1,600 as special damages.2. the motor accident claims tribunal (hereinafter called the tribunal), passed a decree in favour of the applicant for rs. 1,250, that is rs. 500 as special damages and rs. 750 as general damages against the third respondent, the indian trade and general insurance co. the claim was dismissed against the owner, banwarilal (respondent 1), and the driver of the truck, cornalious (respondent 2). the applicant has filed this appeal for enhancement of the general damages awarded to her by rs. 7,660 and has prayed for a decree for the rs. 8,910. all the three non-applicants, that is, the owner and driver of the truck as also the insurance co. have.....
Judgment:

Shiv Dayal, J.

1. This appeal under Section 110-D of the Motor Vehicles Act, arises from a claim for compensation, which was made under Section 110 of that Act. The appellant, a yong girl of 15 years, a student of the 1st Year Science class in the S. B. R. College, Bilaspur, riding a lady bicycle, while returning from the College to her house, was struck from behind by a truck No. M.P.L. 718. She fell down with her bicycle. She was extricated from under the truck where she was lying between the front and the rear wheels. She was removed to the hospital. She sustained a fracture of the spine. She had to remain in the hospital for 3 months. She claimed Rs. 8,400 as general damages and Rs. 1,600 as special damages.

2. The Motor Accident Claims Tribunal (hereinafter called the Tribunal), passed a decree in favour of the applicant for Rs. 1,250, that is Rs. 500 as special damages and Rs. 750 as general damages against the third respondent, the Indian Trade and General Insurance Co. The claim was dismissed against the owner, Banwarilal (respondent 1), and the driver of the truck, Cornalious (respondent 2). The applicant has filed this appeal for enhancement of the general damages awarded to her by Rs. 7,660 and has prayed for a decree for the Rs. 8,910. All the three non-applicants, that is, the owner and driver of the truck as also the Insurance Co. have been made respondents in this appeal, so that if it is found that the Insurance Co. (respondent 3) is liable for a lesser amount, the other respondents may be held liable for the balance. There is no appeal by the non-applicants or any of them.

3. The Tribunal has found that the applicant was involved in the accident; that the truck was being driven rashly and negligently when it gave her a dash from behind and it caused the accident; that she sustained fracture of the spine, i.e., the 4th lumber vertebra that she was put under a plaster jacket for about three months; and thereafter a fortnight was spent in rehabilitating her; that she could not attend her college from 5-10-1959 to 20-1-1960; that, consequently, she could not pass the annual examination that year; and that no permanent disability has been caused to her. It is unnecessary to give the details of the special damages which were partly allowed by the Tribunal and about which there is no dispute in this appeal.

4. She claimed Rs. 8,400 as general damages, but the Tribunal awarded only Rs. 750. The applicant had stated in her deposition that she continued to have discomfort in walking; that she could not take part in the outdoor games and that she could not ride a bicycle. This statement was corroborated by her father, Bhagwandas (A. W. 2). When further cross-examined, he said that she used to play Badminton, but since after the accident site could not.

5. When this appeal was heard, learned counsel for both aides agreed that medical evidence as to the consequence of the fracture which she sustained was obscure and that ends pf justice required that evidence of an expert be taken in this Court. Dr. K.D. Koshal, Professor of Surgery, Medical College, Jabalpur, was then asked to examine the appellant. His statement was recorded. Counsel for both sides were allowed to cross-examine him. Dr. Koshal states that on examining the appellant, he found that her gait was normal, the muscle power in both the lower limbs was normal; and tile sensations in both the lower limbs were normal. X-ray examination revealed an old, healed fracture of the 4th lumber vertebra and c vertebra appeared to be deformed. In the opinion of the witness, if the appellant gains weight, she is liable to develop osteoarthritic changes and develop low back-ache. The witness says :--

'It is quite possible for a patient, who hassustained a lumber spinal fracture, to experienceserious difficulty in playing strenuous games.Badminton is a strenuous game; so also aboutriding a bicycle. Even if she plays games lightly and rides a bicycle casually, she might stillhave low back-ache. If the patient does notcomplain of low back-ache, in such a case,there is likelihood of a feeling of tiredness ordiscomfort. This is our general experience. There is no special test for it.'

Shri Dabir confronted Dr. Koshal with a statement in Watson Jones on Fractures and JointInjuries (1955 Edition, at pp. 957-958), whichis regarded as an authoritative treatise, wherethe treatment of unstable lumbo-dorsal fractures by reduction and immobilisation in plaster is discussed. It was suggested to Dr.Koshal that if spine was immobilised in hyperextension in plaster for three or four months,and the correction was maintained, it wasquite untrue to suggest that such immobilisation gives rise to permanent stiffness or anyoilier permanent disability.' The professorreplied that this was undoubtedly the opinion,as stated by the learned author, based on experience, yet in the same book al page 965,here is the following passage :

'A plaster jacket can be applied with light vertical traction in the neutral position of the trunk without any hyperextension. This does not correct wedging of the compressed vertebral bodies. Nevertheless some surgeons believe that immobilisation in hyperextension causes persistent lumbo-sacral pain and deliberately immobilise the trunk in the neutral position even although slight compression is left uncorrected; they think that recovery is accelerated without any disability arising It is of course evident that fractures produced by hyperextension should be immobilised in this way and not in a hyperextension plaster.'

The witness further remarked that Watson Jones agrees that other surgeons have noted persistent lumbo-sacral pain following immobilisation in hyperextension. Dr. Koshal also stated that the usual treatment given in our hospitals is immobilisation in a hyperextension plaster. The Doctor further staled that, as a follow up of treatment after plaster of pans immobilisation, it is necessary to advise the patient to undertake spinal exercises, but adequate facilities do not exist in most of the district hospitals and Indian patients generally are afraid to move while the plaster is on. This results in weakness of the back-muscles, which is ultimately responsible for disability, such as low back-ache.

6. We have no reason not to accept the findings and opinion of Dr. Koshal. Accordingly, we hold that although her gait is normal and there will be no disability in walking, yet, the 4th lumber vertebra is deformed and there is a permanent disability as regards playing Badminton and any other strenuous game and also as regards riding a bicycle. She may have low back-ache or at least a feeling of tiredness and discomfort. If she gains weight, she is liable to develop osteoarthritic changes and develop low back-ache. She is a young girl in her teens and it is difficult to predict that she would not gain weight as she grows older.

7. It was argued by Shri Dabir that the applicant did not complain to Dr. Kamalh of any discomfort in walking, nor did she state in her deposition that after she was discharged from the hospital, she tried to play or to ride a bicycle and got back-ache. Therefore, her complaint to Dr. Koshal should be rejected as an after-thought. It was also argued that the girl does not say that she played Badminton of any high order. In our opinion the statement of the appellant and her father that she is unable to take part in the games or to ride bicycle imply that she did try to play and to ride a bicycle. We also believe that the appellant used to play Badminton before the accident.

8. This brings us to the question whether the amount of general damages awarded In the Tribunal is proper and reasonable having regard to the facts and circumstances of the case. In an action for personal injury, damages which are awarded may be divided into two heads : (1) for the pecuniary loss: and (2) for non-pecuniary loss. Full compensation for the pecuniary loss that the plaintiff suffers may be awarded subject to rules of remoteness and mitigation.

9. As regards general damages, two questions must be asked : (1) What are the items of loss and injury for which compensation is claimed (2) How are those items to be quantified or reduced to terms of money Regarding the first question, persona) injury may range from the loss of a limb or other part of the body to minor cuts or bruises and may involve not only pain and hardship, but also loss of pleasures of life. Damages are awarded in respect of pain and suffering already undergone and likely to be undergone in future, in respect of the loss of the amenities of life, and in respect of the reduction in the expectation of life.

10. Indeed, full compensation cannot be given in the sense that no amount of money can fully compensate for pain and suffering, loss of expectation of life, or loss of the amenities of life Restitution in integrum will not be an attainable ideal in Admiralty Commrs. v. S.S. Valeria, 1922 AC 242 (248). Viscount Dunedin said:

' If by somebody's fault I lose any leg and am paid damages, can anyone in his senses say I have had Restitution in integrum?'

Even so, damages for personal injury are intended to be equivalent in money for the loss sustained. There are many things for which there is no substitute yet they have a recognised value. Damages are by nature wholly discretionary and it is a difficult task to assess general damages, which arc not capable of being estimated with any exactitude. The observations of Lord Halsbury, L.C., in The Mediana 1900 AC 113 at pp. 116-117 are classic.

'Of course the whole region of inquiryinto damages if one of extreme difficulty. Youvery often cannot even lay down any principleupon which you can give damages; nevertheless, it is remitted to the jury, or those whostand in place of the jury to consider whatcompensation in money shall he given for whatis a wrongful act. Take the most familiar andordinary case how is anybody to measurepain and suffering in moneys counted Nobody can suggest that you can by any arithmetical calculation establish what is the exactamount which would represent such a thing as the pain and suffering which a person hasundergone by reason of an accident. But,nevertheless the law recognises that as a topicupon which damages may be given.'

Similarly in the Ceramic (Owners) v. TheTestbank (Owners) (1942) 1 All ER 281Goddard, L.J., said :

' it is no doubt true that one cannot apportion blame with anything approaching mathematical accuracy; but that is a familiar difficulty in cases where the damages are at large. In an ordinary accident case, there is no yardstick bv which the court can measure the amount to be awarded for pain and suffering or ensuing disability.'

I would also recall here the observations of Birkett, L.J., in Bird v. Cocking & Sons Ltd. (1951) 2 TLR 1260 (1263):--

'The assessment of damages in cases of personal injuries is perhaps one of the most difficult tasks which a judge has to perform, and certainly the task is no lighter when the appellate court is asked to re consider the assessment made by a judge in the court below. The task is so difficult because the elements which must be considered in forming the assessment in am given case vary so infinitely from other cases that there can be no fixed and unalterable standard for assessing the amounts for those particular elements.'

11. But the difficulty or uncertainly does not prevent assessment of damages, which should represent the full equivalent of money, so far as the nature of money admits. Assessment of damages for pain and suffering has necessarily to depend upon a reasonable view of the case, having regard to all the circumstances. It is the duty of the Court to form an estimate of chances and risks, although they cannot be determined with any precision, for instance, the possibility of the injury improving or deteriorating. However, the possibilities or chances which are slight or nebulous have to be disregarded. The entire circumstances of the situation must be taken into account. Discretion must be exercised judicially and it has to be remembered that damages awarded in an action for torts are compensatory and not punitive. As regards damages to be awarded for loss of the pleasures of life, the personal circumstances of the plaintiff must form the background of the assessment. In Rose v. Ford, 1937-3 All ER 359 (379), it was observed by Lord Roche

'I regard impaired health and vitality not merely as a cause of pain and suffering, but as a loss of a good thing in itself'

And Greer, L.J., said in Heaps v. Perrite Ltd., 1937-2 All ER 60:--

'The joy of life will have gone from him. He cannot ride a bicycle, cannot kick a football. Al any rate, if he can kick a football, he cannot catch one. He cannot have any of the usual forms of recreation, which appeal to the ordinary healthy man.'

12. To apply these principles, we have before us these important considerations:

(1) She is a young girl, her age being 15 years al the time of the accident. (2) When she received a dash from behind, she fell down and was taken out from underneath the truck, where she was lying between the wheels. She had to remain in the hospital for three months, (3) The fourth lumber vertebra was fractured. She had to remain in plaster jacket for 3 months. (4) She lost one academic year. (5) She is liable to develop osteoarthritic changes and develop low back-ache, (6) There is deformity of a vertebra (7) She is unable to play Badminton which, formerly, she used to. (8) She is unable to ride a bicycle. (9) There is the possibility of her getting back-ache occasionally (10) She is still unmarried, although there is no evidence that the prospects of her marriage would suffer by reason of the aforesaid disability.

13. In 1951-2 TLR 1260, it was held that in estimating damages for the loss of the pleasure of life, youth and age are important considerations. Age may be a material factor justifying a lower assessment for an older man.

14. In Rushton v. National Coal Board, 1953-1 All ER 314 (316) Singleton. L.J., said :

'Every member of this court is anxious to do all he can to ensure that the damages are adequate for the injury suffered, so far as they can be compensation for an injury and to help the parties and others to arrive at a fair and just figure.'

And Birkett, L.J., said :

'I still think that it is a most useful thing to look at comparable cases to see what oilier minds have done, and so to gather the general consensus of opinion as to the amount which a man in a certain state of society ought to be awarded.'

In 1951-2 TLR 1260, Birkett, L.J., had said thus

'Although there is no fixed and unalterable standard, the courts have been makingthese assessments for many years, and I thinkthat they do form some guide to the kind offigure which is appropriate, when, therefore, a particular matter comes for review, oneof the questions is, how does this accord withthe general run of assessments made over the years in comparable cases.'

15. It is difficult to get exactly similar cases. Facts and circumstances of each case are peculiar and particular to itself. In the State of Madras v. James Appadurai, AIR 1959 Mad 369, Rs. 10,000 was awarded for loss of one leg. In Gwalior and Northern India Transport Co. Ltd. v. Dinkar Joshi, (S) AIR 1955 Madh Pra 214, a sum of Rs. 30,000 was awarded as general damages. The, plaintiff's clavicle and first lumber vertebra were fractured; he had a lump over his shoulder and was disabled; on account of these injuries he suffered extreme pain and inconvenience for over six months. See also the following cases in: Barry v. British Transport Commission: 1954-1 Lloyd's Rep 372, Smith v. London Graving Dork Co. Ltd., 1956-1, Lloyd's Rep 186; Smith v. Silvertown Services Ltd., 1957-2 Lloyd's Rep, 569; Buckley v. Ocean Steamship Co. Ltd., 1955-2 Lloyd's Rep. 97: Byrne v. Clan Line Steamers Ltd., 1955-2 Llyo's Rep. 598; Newell v. Grimdilch 1957-2 Lloyd's Rep 457: Clarke v. E.R. Wright & Son. 1957-1 WLR 1191. Also see cases on pain, suffering and shock at pages 683 to 694 of the same book. Here I would recall what Lord Wright said in Davies v. Powell Duffryn: 1942 AC 601 :

'There is so much room for individual choice that the assessment of damages is more like the exercise of discretion than an ordinary act of decision.'

16. No doubt the amount of damages is a mailer discretionary with the trial Court primarily, yet, the Court of appeal would interfere, when the trial Court proceeded on a 'wholly erroneous estimate'' 1942 AC 601, or the amount awarded is 'inordinately low or inordinately High' Nance v. British Columbia Electric Rly. 1951 AC 601. In Wilson v. Pilley, 1957-3 All ER 523, the plaintiff, a married woman was knocked down by the defendant riding a motor-cycle. She received a penetrating wound on her right ankle and minor injuries on her left shin. On the same day, she underwent an operation, her leg was immobilised in a plaster, which was removed after a month. She was away from work for eight weeks. Thereafter, her ankle had still a tendency to swell. She was likely to have for the rest of her life some discomfort in cold and wet whether. As a result of her injury, she had to give up the sport of 'motor-cycle scrambling', which she had formerly enjoyed with her husband. In an action for damages of negligence, in which she claimed 300, the County Court Judge awarded her lbs. 75 as general damages. The Court of appeal held that although the onus was on an appellant seeking to interfere with a comparatively small award of damages was a very heavy one, the Judge had in that case proceeded on a wholly erroneous estimate. The Court of appeal enhanced the amount of damages to 200.

17. In the present case it does not appear from the judgment of the Tribunal that it properly appreciated the loss of amenities which the accident has occasioned to the appellant. Since we find that otherwise also the loss of damages awarded to her for pain and suffering and for the loss of one academic year is inordinately low we must enhance the amount of damages. Having regard to all the circumstances enumerated above, we are of the opinion that the applicant must be awarded Rs. 1,000 as general damages for pain and suffering and for loss of certain amenities of life.

18. The third respondent, against whom the Tribunal passed a decree for Rs. 1,250 did not prefer any appeal or cross-objections. It must be taken to have accepted the finding reached by the Tribunal that the accident occurred because of the negligence on the part of the driver of the truck.

19. The appeal is partly allowed. Thedamages awarded to the appellant by the Tribunal against the third respondent. InsuranceCompany are enhanced to rupees four thousand five hundred (4,500). The third respondent shall also pay to the appellant proportionate costs in this Court and in the Tribunal.All the three respondents shall hear their owncosts throughout.


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