1. This appeal is directed against the award passed by the Motor Accidents Claims Tribunal, Madras, in O. P. No. 103 of 1974, awarding a sum of Rs. 2,00,000/-, as compensation in favour of the respondent in respect of a motor accident.
2. On 20-8-1973, the respondent was proceeding on Mount Road on his scooter. When he stopped at the automatic signal opposite to the Agurchand Mansion, the bus, MSQ 5948 belonging to the Pallavan Transport Corporation coming behind hit the scooter causing grievous and multiple injuries to the respondent as also damages to the scooter. On account of the injuries sustained, the respondent had to remain as an inpatient in the hospital for some time and undergo an operation. On the ground that on account of the accident he has sustained loss of Rs. 2,00,000/-, as he was unable to undertake the European business tour sponsored by one Transworld Trading Corporation and he had lost his job in the British Leyland International Ltd., London, he filed a claim petition claiming a compensation of Rs. 2,00,000.
3. The Pallavan Transport Corporation resisted the claim petition contending that the bus was stopped at the automatic signal that when after the appropriate signal was given, the bus was started a small boy suddenly crossed the road and the driver with a view to avert hitting the boy swerved the vehicle to the right but that there was a sudden failure of the brakes as a result of which the driver could not control the vehicle and that it is because of the said mechanical defect, the accident had occurred. It also contended that there was no rashness or negligence on the part of the driver and that the accident is an inevitable one. It was also pleaded that in any event the compensation claimed is excessive.
4. On these rival contentions the Tribunal has set down the following two questions for consideration: (1) was the accident due to the rash and/or negligent driving of the bus? and (2) To what, if any, compensation is the petitioner entitled?
5. On the first question the Tribunal, after considering the evidence in detail, held that the driver of the Pallavan Transport Bus has been rash and negligent that it is that rashness and negligence that has contributed to the accident in question, and that the accident was not an inevitable one. On the second question, the Tribunal-held that the respondent is entitled to a compensation of Rs. 2,05,000, as he had suffered a pecuniary loss to that extent, but that since he has restricted his claim to Rupees 2,00,000, the same should be awarded to him as compensation.
6. The learned Advocate General appearing for the appellant Pallavan Transport Corporation does not question the finding of the Tribunal that the accident was due to the rash and negligent driving of the Pallavan Transport bus by its driver, but has questioned only the quantum of compensation awarded on the ground that the award of Rs. 2,00,000, as compensation is highly excessive and arbitrary. Therefore. the only question that arises for consideration in this appeal is as to whether the award of Rs. 2,00,000, as compensation to the respondent by the Tribunal can be justified as proper and reasonable on the facts and circumstances of the case.
7. It is not in dispute that the respondent has sustained a fracture of the left leg and other multiple and previous injuries. He was an inpatient in the Royapettah Hospital from 20-8-1973 to 6-9-1973, and after discharge from the hospital, he was getting treatment from the same hospital as an out patient from 7-9-1973 to 15-1-1974. In the claim petition the respondent has claimed that even after the prolonged treatment, he is not able to work as before and that he has sustained loss of salary of Rupees 15,000, for five months from 1-10-1973 to 28-2-1974, at Rupees 3,000 per month in Transworld Trading Corporation. He has also claimed Rs. 500 as transport charges for going to the hospital, Rs. 1,500 towards extra nourishment, Rs. 1,800 towards damage to clothing and scooter, Rs. 2,00,000 towards loss of commission on European Business tour sponsored by Transworld Trading Corporation and damages for loss of job in the British Leyland International Ltd., London, Rs. 200 as attendant's salary while the respondent was in the hospital, Rs. 500 as medical expenses, Rs. 3,000 as compensation for pain and suffering, Rs. 5,000 as compensation for continuing of permanent disability and Rs. 20,000 as compensation for loss of earning power in an aggregating to Rs. 2,47,500. But the respondent has ultimately restricted his claim to Rs. 2,00,000. Thus it is seen that the substantial claim is only in relation to the loss of commission on European business tour and damages for loss of job in the British Leyland International Ltd., London. The Tribunal, however, held that' the respondent is not entitled to any damages for loss of job in the British Leyland International Ltd. London as the respondent was not employed by the British Leyland International Ltd London an the date of the accident.
8. Even though the Tribunal held that the respondent is not entitled to any damages for loss of job, it sustained the claim of the respondent for Rupees 2,00,000, under the first head 'loss of commission on European business tour.'
9. The claim for compensation of Rupees 2,00,000, under the head 'loss of commission on European business tour' as well as 'loss of job in the British Leyland International Ltd., London' is based on the following facts-The respondent had obtained a degree of M.Sc in the faculty of technology from the University of Manchester in 1972, and also a degree for M. Sc. in the management and business studies from the University of Warwick on 30-6-1973. Even while he was pursuing his studies he had business contacts in the textile line and was able to procure orders for readymade garments in U.K. In or about Aug. 1973, the respondent was in Madras and at that time Messrs Transworld Trading Corporation who are the exporters of readymade garments in Madras wrote a letter Ex. P. 5 to the respondent agreeing to sponsor a trip to European countries at their cost and expenses for the sole purpose of booking orders on their behalf and on their account in the name of their concern and also to accompany one of their partners, Shri Kantilal Ghandak and introduce him to the overseas dealers and agreed to pay him a commission of 10 per cent in respect of all the orders booked by him during the forthcoming trip with their partner. In the same letter they also agreed to appoint him in their concern on. a monthly, salary of Rs. 3,000 after his return from the business tour. The offer under Ex. P. 5 was accepted by the respondent under Ex. P. 6. In pursuance of the offer under Ex. P. 5, and the respondent's acceptance under Ex. P. 6, arrangements were made by the Transworld Trading Corporation for the business tour. Necessary passport visa and tickets were all obtained and respondent and Shri Kantilal, partner of the Transworld Trading Corportion were about to depart from Madras by air on 20-8-73, and return to India on 18-10-1973. But as a result of the accident the respondent could not take the trip and Kantilal alone made the trip. Though the respondent could not make the trip as originally intended, he had given letters of introduction to Kantilal so as to enable him to contact all the dealers with whom he had business contacts. Thus, though the respondent could not a company Kantilal as originally planned, during his trip, he had done all that he could do for getting orders from purchasers overseas. The result was that Kantilal was able to procure orders to the tune of Rupees 25,00,000, even though the respondent did not accompany him. Thus the Transworld Trading Corporation has got the entire export orders- for readymade garments, which they would have got if the respondent had made the foreign tour along with Kantilal. Thus, there is no loss of business for, the Transworld Trading Corporation as a result of the accident. They not only got the entire orders which they expected to the tune of Rs. 5 lakhs but also made a saving with regard to the travel expenses of the respondent. However, the respondent who could have made a claim for commission on the basis of Ex. P. 5 on Messrs Transworld Trading Corporation, did not make a claim against them but claimed the entire commission of ten per cent on Rs. 25 lakhs, from the Pallavan Transport Corporation, on the ground that he had lost the commission on account of the accident The respondent does not dispute the fact that the entire orders were procured from overseas by Kantilal because of his spade work and his letters of introduction Even P. W. 5, the father of , Kantilal who made the business trip has admitted:-
'P. W. 3 (claimant) has had lots of contacts in Europe and I wanted Kantilal to pick up the experience. They should have started on 20-8-1973 .......... P. W. 5 could not undertake the t6ut due to the accident. I met him in the hospital and discussed future plans He gave the address of foreign buyers and letters to those buyers. Even prior to tour P. W. 3 was in England and had procured orders for us Kantilal had booked orders worth Rs. 5 lakhs. P. W. 3 would have been paid ten percent commission if he had made the trip. The names of all the buyers had been provided by P. W 3. P. W. 3 approached for job after recovery 6 of 7 months after the accident. As my son has had picked up the experience, I did not employ P. W. 3. I would have given him
the job if he had made the trip'.
He further added that 'My son had just then returned from the college and he could not by himself got these orders. Orders were result of spade work done by P. W. 3. The European companies who had placed orders, were contacted by us only as per the instructions of P. W. 3. We contacted most of these companies after P. W. 3 met with the accident. Prior to the accident we had sent garments to 5 or 10 parties in Europe. I do not remember those names we had sold to those parties about 2 lakhs of rupees worth of garments. We are now supplying to about 200 parties It is not true to say that Kantilal at his own business ability obtained orders.'
The evidence of P. W. 5 makes it clear that it is only with the help and assistance rendered by P. W. 3, in doing spade work and in introducing Kantilal to various dealers with whom he had contact, Transworld Trading Corporation was able to procure orders to the tune of Rs. 25 lakhs, and, but for the respondent's efforts Kantilal could not have procured the orders. Thus even though the respondent has not made the trip, he is responsible for procuring all the orders which he intended to procure by making a trip abroad. Thus on the facts of this case the respondent can be taken to have earned the commission for the work done by him. Though Ex. P. 5 contemplates procurement of orders during the foreign trip, even without making a trip the respondent was able to procure orders. The object of giving commission to the respondent is to get orders and not to make the trip. We do not understand Ex. P. 5 as meaning that the respondent will be entitled to commission only if he made a foreign trip and not otherwise. Even without making a foreign trip the respondent was able to procure orders and he is entitled to claim compensation from the Transworld Trading Corporation, for they had the benefit of the orders procured by the respondent even without making a trip. The respondent, who has become entitled to the payment of commission from the Transworld Trading Corporation cannot give up that claim and seek to proceed against the Pallavan Transport Corporation on the ground that it is because of the accident he could not make the foreign trip and thus he had lost the benefit of the commission. As Ex. P. 5, has been interpreted by us as enabling the respondent to get the commission for the orders procured through him and making a foreign trip is not the essence of the contract, the respondent has in fact not sustained any loss of commission. If he purposely did not claim the commission from Transworld Trading Corporation, and is claiming the compensation towards loss of commission from the Pallavan Transport Corporation, he has done so at his own risk. We therefore hold that there is no loss of commission as a result of the accident.
10. Even assuming that the commission is payable to the respondent under Ex. P. 5, only when the respondent makes a foreign -trip and not otherwise, we are inclined to think that loss of commission which is problematical can be taken to be too remote and that the same cannot be claimed as compensation for personal injuries in relation to the accident. If the respondent had made the foreign trip but had not procured any orders, he is not entitled to be paid commission. On the date of the accident there is no knowing as to whether the respondent will be able to procure any orders. Therefore, the question whether he will be able to procure any orders is problematical and such damages based on certain contingencies cannot be held to be damages directly flowing from the accident. In the case of personal injuries resulting from an acc dent the injured person is entitled to claim compensation for the cost of treatment of the injuries, earnings during the period loss of earning power any permanent disability or other incidental or ancillary damages sustained by who injured person. In addition to such compensation, if the injured person were to be awarded loss of commission or other emoluments which he may or may not get in future we will be entering into the field of surmises. As has been held by Cockburn C. J. in Phillips v. South Western Railway Co., (1879) 4 QBD 406, what has to be taken into account in, ascertaining damages for personal injury is:-
'all the heads of damages 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 above passage has been approved m a later decision of the Court of appeal in Heaps v. Perrite Ltd., (1937) 2 All ER 60. In Owners of the Steamship 'Gracie' v. Owners of the Steamship 'Argentino', (1889). 14 AC 519, the House of Lords had expressed the view that in common law if the damages though admittedly traceable to the wrong in . respect of which an action is brought is too remote, it cannot be recovered. But as to what constitutes remoteness of damage is a matter of opinion. All damages which flow directly and naturally or in the ordinary course of things from the wrongful act cannot be taken to be too remote. Vol. 37 of Halsbury's Laws of England, 3rd Edn. at page 119, while dealing with damage and causation says in paragraphs 203 and 204 as follows:-
'203. Injuria sine demno. The cause of action in certain torts may be complete without proof of actual damage or loss, and in such case the infringement of right alone is the tort. If, in such an instance, damages for particular loss are sought, causal connection between the tort and the damage must be shown. A tort may, according to the nature of the act, be actionable either without proof of special damage or only with such proof.
204. Causation. Only such damages are recoverable as are the reasonably foreseeable consequences of the tortious act. The law has regard to the proximate cause. A plaintiff, on whom the burden of proving damage lies, discharges the onus if he shows that, on a balance of probabilities, the tortious act caused or materially contributed to the injury or damage ..............'
Winfield and Polowics on Tort, 11th Edn. at page 599, dealing with the various heads of damages in actions for personal injury says thus-
'If restitutio in integrum is the object of damages awarded for pecuniary loss and compensation the object of damages for non-pecuniary loss, it might have been expected that in calculating the plaintiff's total damages in a given case the Court would always have drawn clear distinction between these two aspects of his damage. The distinction has, of course, been acknowledged many times, but the practice of the courts has tended until recently to cut Across the obscurity by the making of global awards which did not distinguish between the different aspects of damages. This practice was supported by the Court of Appeal, partly on the ground that separate assessment and addition of individual items might lead to 'overlapping', and a consequently excessive award. However, the introduction by the Administration of Justice Act, 1969 of a new basis for the award of interest on personal injury damages and subsequent decisions that different heads of damage should be treated in different ways for this purpose have meant that a Judge is compelled to itemise his award at least into pretrial pecuniary loss, future loss of earnings and non-pecuniary loss. Indeed, if recently proposed alterations in the principles governing the off-setting of social security payments against damages are implemented it will be necessary to carry the process of 'itemisation' even further. Whatever the future of 'itemisation', it has long been the case that a variety of situations, each presenting some unusual feature, has compelled the Courts to consider particular 'heads of damage, within the broad categories of non-pecuniary and pecuniary loss and it is to these that we must now turn.'
According to the Authors, damages can be claimed under the following heads-1. Non-pecuniary loss-(i) pain and suffering (ii) loss of expectation of life; (iii) loss of amenity and (iv) the injury itself. 2. Pecuniary loss (i) loss of earnings; (ii) loss of earning capacity; (iii) expenses; (iv) other pecuniary loss and (v) interest on damages for personal injury. Ramaswamy Iyer in his treatise on the 'Law of Torts', 7th Edn. under the head 'Damages for bodily harm' at page 51, has stated that the damages may be general or special or both; that the former represents a solatium or satisfaction for the pain, infirmity, and attendant circumstances like mental pain disgrace and indignity, and, the latter represents compensation for pecuniary loss, that is medical expenses or other expenses properly incurred on account of the injury, loss of business, salary or earning capacity, that under the former head the damages may be exemplary in cases where the defendant's conduct has been wanton or reckless or calculated to insult or disgrace the plaintiff; that under the latter head, items like medical expenses or temporary loss of earnings are easy to value but it is more difficult to estimate the prospective loss due to permanent impairment. McGregor on Damages 14th Edn. at page 112 deals with a situation like the one before us in par& 161 which is as follows:-
'There remains the case of the person engaged on especially remunerative contracts. This is generally posed as the problem of the man who by a tortious injury is disabled from performing a contract of an unusual and exceptionally remunerative character. Whether he can recover for such a loss was expressly left open, in the Arpad by Greer L., J. It is submitted that the principles considered in relation to the loss of exceptionally profitable contracts through tortious interference with the plaintiffs property apply equally where the tort is one affecting his person.'
11. However, in the earliest case Hoey v. Felton, 1861 11 CB 142, loss of situation, which the plaintiff alleged he would have obtained had he not missed an appointment through illness caused by a false imprisonment, was held too remote. In Davies v. Taylor, 1973 ACC CJ 124, the House of Lords had expressed the view that speculative possibilities cannot enter the computation of the compensation and the Court cannot apply the test of balance of probabilities in the matter of award of compensation.
Dealing with the scope. of Ss. 211 and 212 of the Contract Act, the Supreme Court expressed the view in Firm Pannalal Jankidas v. Mohanlal, : 1SCR979 , thus:-
'These sections make it clear that in case of the agent's negligence he is liable to make good the damage directly arising from his neglect but not directly or remotely caused by such neglect or misconduct. The question, therefore, is whether in the present case, the claim of the respondents based on the neglect or misconduct can be stated to be a direct consequence of such neglect or misconduct or is only indirectly or remotely caused by such neglect.'
12. We are of the view that the same rule has to apply in relation to torts as well.
13. On a due consideration of the various principles involved in the computation of damages for personal injuries caused in a motor accident, we are of the view that except under the head 'loss of earning power for any partial or permanent disability, the loss of profits which the injured person might or might not earn can be taken to be not directly connected with the accident. Earning a profit in a business or a commission as in this case for procuring orders will depend upon so many indeterminate factors like the market conditions, the law of demand and supply etc. Therefore, such indeterminate factors cannot go into the computation of damages for personal injuries. If the injured person would have definitely earned an income but for the accident, then it should be taken to be a loss of his future earnings due to the accident. But in this case, the mere fact that the respondent was injured in an accident and was being treated in the hospital for some time cannot be taken to disable him in procuring the export orders as was originally intended by visiting those countries later. There is no time limit involved in procuring the orders. No material has been produced by the respondent to show that the orders should be procured within a particular time otherwise, there is no possibility getting any orders. Therefore, the respondent cannot say that because of the accident he could not procure the orders by making the trip later on after getting treatment for the injuries. As a matter of fact, the Tribunal while dealing with the point as to whether there is a loss of employment to the respondent has rightly held that as the offer is not conditional upon his taking up the employment within a particular time, the respondent could have gone to London and secured the appointment after the treatment for the injuries and therefore he has not suffered any loss. On the same reasoning, since no time limit has been fixed for procuring the orders, the respondent could have made a trip subsequently and earned the commission, for whatever work he could do. Having enabled Kantilal to procure the orders by making spade work and introducing him to various dealers, the respondent cannot now say that he could not procure the orders and earn commission, especially when the entire orders to the tune of Rupees 25 lakhs had actually been procured as a result of his spade work and introduction by the Transworld Trading Corporation. In this view of the matter, we have to that there is no loss of commission to the respondent arising out of the accident for in Ex. P. 5 there is no time limit fixed for making the trip to foreign countries and that the trip could have been made even after his treatment for the injuries. In any event, the entire orders which the respondent wanted to secure has been procured by Transworld Trading Corporation as a result of his spade work and introduction and the respondent has thus earned his commission from Transworld Trading Corporation for the work done by him. We have to therefore hold that the respondent is not entitled to any compensation either under the head of loss of commission or under the head of loss of job.
14. However, it is seen that the respondent has claimed a sum of Rupees 3000/- for pain and suffering; Rs. 500 for medical expenses, Rs. 200 for medical attendant; Rs. 300 towards damages to cloth, Rs. 500 for transport charges and Rs. 500 for extra nourishment. The learned Advocate General appearing for the appellant concedes that the respondent is entitled to be paid compensation claimed under the various heads as they directly flow from the injuries sustained by the respondents as a result of the accident. We, therefore, award a sum of Rs. 5000/- as in this case there is no evidence of any partial or permanent disability. Though in the claim petition a statement has been made that the respondent is not able to work as before and has claimed a compensation of Rs. 5000/-, for continuing or permanent disability, no evidence has been adduced to prove partial or permanent disability. We are, therefore, of the view that except a sum of Rs. 5000/which is claimed under the various heads set out above, the respondent is not entitled to be paid compensation under any other head. The award of the Tribunal is therefore reduced to Rs. 5000/- from Rs. 2 lakhs, with interest at the rate specified by the Tribunal.
15. In the result, the civil miscellaneous appeal is allowed in part and the award of the Tribunal is reduced to Rs. 5000/. There will, however, be no order as to costs.
16. The learned counsel for the respondent prays for leave of this Court to appeal to the Supreme Court against the judgment just now pronounced. Having regard to the fact that our decision is mainly rested on the factual) petition, we do not think this is a fit case for grant of leave to appear The leave sought for is refused.
17. Appeal partly allowed.