1. Plaintiff, Mrs. H. I. Halligua, who belongs to the community of Cochin jews, sues defendant 1, a Madras taxi owner, for the recovery of Rs. 15,090-6-9 as general and special damages incurred as a result of injuries she sustained consequent on a collision between defendant l's taxi in which she was travelling, with a tram car in Mount Road, Madras, on 10th March 1947. Defendant 1 has impleaded the Kaiser-i-Hind Insurance Company Ltd., as defendant 2under third party procedure to make them liable under their policy of insurance. Both the defendants have sought to repudiate liability on the ground of absence of any negligence on the part of defendant 1's driver. The company seeks in any event to limit their liability to Rs. 2000 in accordance with a copy of the policy, Ex. D. 5, issued by them. The original policy issued to defendant 1 is not forthcoming.
2. The following issues were framed.
1. Was the taxi driven rashly and negligently where emerging from the petrol bunk?
2. Was the driver of the taxi responsible in any manner for the accident ?
3. Did the plaintiff sustain all or any of the injuries referred to in the plaint as a result of the accident?
4. Did the plaintiff suffer any bodily or mental injury as a result of the accident?
5. Is the plaintiff entitled to any damages, and if so, to what extent?
6. In any event is the third party liable to bear any damages that may be awarded by Court against defendant 1?
7. Is the third party discharged from liability to any extent against any of the other parties on the policy of insurance issued by them to the defendant under the circumstances set out in Para. 6 of their written statement ?
8. To what relief are the parties entitled?
3. The facts are these. The plaintiff and her husband who is a well-to-do merchant and landlord at Cochin came on a four day visit to Madras and arrived on the morning of 10th March 1947. They were staying at the Tourists Home. They engaged defendant 1's taxi in which they travelled along with plaintiff's sister, Miss Koder, examined on commission at Cochin as P.W. 3. The taxi dropped plaintiff's husband, P.W.7, at the Hanagraph Studio and the two ladies were proceeding to the Y. W. C. A. The taxi driver drove to the Caltex petrol bunk next to Messrs. Lawrence and Mayo Ltd., on the Mount Road and after filling up with petrol, was crossing the road towards Bosottos when a tram car proceeding towards the Mylapore side collided with the taxi and smashed up the front portion of the car. Miss Koder only received a bruise on one shoulder. Plaintiff says she immediately became unconscious, and when she regained her senses she found herself bleeding badly from the nose and mouth. She could not stretch out her hands and all her fingers became set. A passing taxi with some soldiers came to their rescue and took them to the Hanagraph Studio where plaintiff's husband was. He took them immediately to the Casualty Department in the General Hospital. The only injury shown in the Casualty Medical Officer's certificate, Ex. P. 7, was an abrasion on the upper lip and bleeding from the upper gums.
4. The evidence, however, shows that Mrs. Halligua, immediately after the collision, was seized with what appears to have been a very severe pain in her arms and hands. Dr. Balakrishnan, P. W. 6, was called in that same day. He found her in a state of agony complaining of painin her hands and arms which she would not allow him even to touch. He gave her an injection of morphia and saw her again daily for two or three weeks. He diagnosed her trouble as Neuritis due to the accident, and also took her for consultation to Dr. Viswanatha Menon, P. W. 8, at his nursing home. Both these doctors say they found no external injury at all. An X-ray resulted in no evidence of fracture. Dr. Viswanatha Menon who is an M. B. and M. S. of Madras and F. R. C. S. of England has given expert evidence in this case which I shall presently consider. He only saw Mrs. Halligua once and advised massage deposing that the only objective finding he could discover was bruising of the muscles of the forearms. Mrs. Halligua says that about 12 days after the accident she consulted Major Thomas, I. M. S., because, as the result of the shook due to the collision, she began to menstruate with excessive flow of blood, prematurely. He treated her only for that. After a stay of three weeks in Madras during which she showed no improvement, she went back to Cochin where she was under continued medical treatment for some months. Dr. Balakrishnan was a personal friend of Mr. Halligua and was not remunerated in money, but by the gift of a set of crockery and other presents valued by him at about Rs. 300 for his services.
5. Three doctors who attended on Mrs. Halligua at Cochin have been examined on commission. One is Dr. Simon, P. W. 2, a retired Civil Surgeon of Burma who has been President of the Cochin Medical Association for ten years. He is a cousin of Mrs. Halligua. He examined her after she arrived in Cochin and said she complained of severe pain in her arms and fingers and kept her hands in all sorts of positions to alleviate it. She was not able to use her hands and had to be fed. He consulted Dr. Kini who came to Cochin in connection with Medical Association work. Dr. Simon's diagnosis was injury to the ulnar nerve. Another doctor who examined her shortly after her return to Cochin was Dr. M. B. Roby, M. B. and B. S. Honorary Assistant Medical Surgeon of the Maharaja's Hospital, Cochin, P. W. 4. He described her as being in agonising pain and crying. He was called again to see her about July 1947 and treated her for nervous pain and general condition. According to Mrs. Halligua her condition did not improve and she got herself examined by an Ayurvedic physician, V. Kochu Pillai examined on commission as P. W. 1. He too says that Mrs. Halligua was not able to use her hands and fingers freely because of contraction of the nerves, that she complained of pain in the hands, that both the hands were affected, but the right hand more seriously so. He treated her with kashayam and oils and so on and came from his residence in Vettakkal to Cochin to see her more than 20 times, plaintiff's husband paying all his expenses. Treatment by P. W. 1 or the processof natural recovery appears to have done Mrs. Halligua some good, though she says that she has been reduced to a nervous wreck. She is unable to bend her right little finger which according to Dr. Balakrishnan is likely to be a permanent deformity. Mrs. Halligua says that it was only after a period of five months that she very gradually began to be able to use her arms and fingers. She can use them now, but she says not quite well. She says she is aged 46.
6. Dr. Viswanatha Menon after perusing the evidence of Dr. Balakrishnan, Dr. Simon, Dr. Roby and V. Kochu Pillai differed from Dr. Simon in his opinion that there was an injury to the ulnar nerve. He expressed the opinion that if the ulnar nerve was partially or wholly injured there would be loss of sensation and muscular paralysis. He would attribute the great pain to trauma of both forearms by some violent impact probably against the front Beat when she was thrown forward. At the same time he expressed the view that ordinarily bruised muscles would heal in two or three weeks, but added that trauma may be the basis of a psychoneurosis or hysteria, and that a patient may get into a subconscious state of continuous pain without any conscious malingering, in which case the pain may continue and can be cured only by a psycho-analyst.
7. It is clear from these differing medical opinions that the real cause of Mrs. Halligua's affliction after this collision has been difficult to diagnose medically. It is, however, equally clear that it is this collision and her being thrown forward on to the front seat that produced the immediate excruciating pain she felt in her hands and arms. This is not only established by the medical evidence, but by the evidence of Miss Kodar, P. W. 3, who said that immediately after the accident she complained of her fingers being hurt and of severe pain. There can also be no doubt that Mrs. Halligua reached Madras in normal health. Dr. Balakrishnan has sworn that he saw Mrs. Halligua on the morning of the accident and met her casually in Mount Road and conversed with her when she seemed quite healthy.
8. I shall now consider the question of negligence. It is in evidence that the taxi-driver was criminally prosecuted for rash and negligent driving and that he was convicted on his plea of 'guilty' and sentenced to a month's rigorous imprisonment. It is urged that he was an experienced driver with a clean record of 25 years' driving and that he merely pleaded guilty in the hope of being let off with a fine. I concede that the conviction evidenced by the Chief Presidency Magistrate's judgment, Ex. P-6, does not by itself establish negligence and that it is open to the defendants in this action to establish want of negligence. It would appear, and indeed the positive evidence of both plaintiff and her sistershows, that the taxi was crossing the road at slow speed and that the tram car was coming along at high speed. It must be remembered that a tram car is immobile in the sense that it is bound by rails and cannot deflect its course. There is a duty cast on a motorist who crosses a tram line to make sure that there is no tram car approaching. It would appear from Miss Kodar's evidence that she saw the tram car coming and screamed with the result that the driver's attention was drawn to the tram, and as she deposed 'we missed being heads on with the tram'. She further says that before she shrieked, the driver was not aware of the tram coming on the line. This by itself is clear proof of negligence on the part of a driver crossing a road on which there is a tram line. I find that the negligence of the driver has been established.
9. In the first lawyer's notice in the ease Ex. P. 8 sent by Mr. Reynolds, an advocate of Cochin, on 3-4 1947 to defendant 1, to the taxi driver and the Insurance company she claimed Rs. 3,000 as damages and costs of all her probable expenses for treatment. The Insurance company replied enquiring the number of the policy and also wrote to defendant 1. They also wrote a letter, Ex. P. 17, on 20-6-1947 to plaintiff's advocate saying that they were not in possession of any particulars or details about the accident, and enclosed the claim form to be filled in by the plaintiff. The claim form, Ex. P. 5, was filled in by the plaintiff's sister, Lily Koder, and the only description of the injury to persons is that it caused injury to her sister (plaintiff) and herself who were both in the car and that they were both taken to the General Hospital. No details about the sufferings of Mrs. Halligua and her treatment by so many doctors were communicated to the Insurance Company. But in a lawyer's letter, Ex. P. 9, dated 26-7-1947 to the Insurance company's lawyer it was stated that Mrs. Halligua's state of health was very bad and that she could not move her hands and was still under expert medical treatment It further stated that 'thousands' had been spent by her with no satisfactory results. The letter requests the original claim of Rs. 3000 to be met which was much less compared to what she actually spent. This claim not being met further lawyer's notices, Exs. P. 18 and P. 19, were issued to both defendants demanding damages of Rs. 10000. Plaintiff claimed this sum as damages for bodily injury, mental shock and pain. In addition special damages amounting to Rs. 5000 are claimed unsupported by any vouchers, namely, Rs. 1,040 for medical expenses Rs. 842 for enforced stay at the Tourists Home, Rs. 2000 for probable future medical attendance, Rs. 708for travelling and taxi expenses and Rs. 500 for miscellaneous expenses. The only evidentiary basis for part of this claim is two diaries kept by Mr. Halligua in Malayalam in which he jotted downexpenses incurred in Madras.
10. Mr. T. T. Srinivasan who ably argued this case for defendant 1 in the absence of his senior Mr. Venugopalachari has urged that plaintiff's claim for these heavy damages based on no external physical injury but mainly as a result of shock is unsustainable. He says that there is no decision in Indian case law in which damages have been awarded for mental shock. He has relied on a Bench decision of the Nagpur High Court in Surajmal v. Governor-General in Council, which following an old decision in Dulieu v. White and Sons, 1901 2 K. B. 669 observed that the standard to be applied in these cases is the standard of ordinary normal healthy persons and not of some aupersensitive psychopath. In the Nagpur decision heavy general and special damages were claimed for some slight injuries to plaintiff's eye and thigh which were bruised and a scratch on his face as a result of a very minor accident on the railway in which the tram in which the plaintiff was travelling collided with a stationary goods train. The trial Court awarded Rs. 4791 and the appellate Court reduced it to Rs. 3308. A Privy Council decision Victorian Railways Commissioners v. Coultes, (1888) 13 A.C. 222 of the year 1888 followed there contains the following dictum:
'In every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now often exists in case of alleged physical injuries of determining whether they were caused by the negligent act would be greatly increased and a wide field opened for imaginary claims.'
The learned Nagpur Bench observed that this case has not been followed in English Courts, but emphasised the general trend of Judges to step cautiously when dealing with claims of this kind.
11. There has been a great advance in English case law in this domain of negligence, and perhaps as observed by Mayne in his book on Damages, in view of no recent English decisions a solution of various problems arising must await final determination by the House of Lords. The case of Hambrook v. Stokes Brothers, (1925) 1 K. B. 141 is an interesting one of nervous shock resulting from fright. In that case the defendant's servant left a motor lorry at the top of a steep and narrow street unattended with the engine running and without having taken proper precautions to secure it. The lorry started off by itself and ran violently down the incline. Plaintiff's wife who had been walking up the street with her children had left them a little below a point where the street made a bend when she saw the lorry rushing round the bend towards her. She became frightened for the safety of her children who she knew must have met the lorry in its course. A bystander informed her that a child answering to the description of one of hers had been injured. In consequence of her fright and anxiety she suffered a nervous shock which eventually caused her death. The action was filed by her husbandunder the Fatal Accidents Act. Bankes and Atkin L. JJ. Sargant L. J. dissenting, held that on the assumption that shock was caused by what the woman saw with her own eyes as distinguished from what she was told by bystanders, she was entitled to recover, notwithstanding that the shock was brought about by fear for her children's safety and not by fear of her own. Atkin L. J. made the following observation:
'The legal effects of injury by shock have undoubtedly developed in the last 30 or 40 years. At one time the theory was held that damages at law could cot be proved in respect of personal injuries, unless there was some injury which was variously called 'bodily' or 'physical', but which necessarily excluded an injury which was only 'mental'. There can be no doubt at the present day that this theory is wrong.'
With great respect, I have no hesitation in following the view of Atkin L. J. The learned advocate for the Insurance company has sought to evade liability on the strength of a clause in the policy which makes the company legally liable to pay in respect of death or 'of bodily injury' to any person. I am quite unable to accept his argument that because bodily injury was not manifested by external visible injury, injury caused to a person by a shock to his nervous system which incapacitates him from his ordinary activities and avocations is not, therefore, bodily injury. The body is controlled by its nervous system and if by reason of an acute shock to the nervous system the activities of the body are impaired and incapacitated from functioning normally, there is in my view clear bodily injury. I fully appreciate the difficulty in estimating damages claimed by reason of shock. But it is only shock of such a description which can be measured by direct consequence on bodily activity which can form the basis for an action in damages. It is not possible to lay down any hard and fast rule, and each case has to be dealt with on its own merits. I think that the trend of English case law having exploded the old view that damages cannot be claimed on the basis of nervous shock directly attributable to negligence, Indian case law based on old English decisions should in this domain of law have a similar orientation.
12. Coming to the present case, it is hardly in the category of disability resulting from pure nervous shock. There can be no doubt that the plaintiff immediately after the collision was afflicted by acute pain in her hands and arms, it may be as Dr. Viswanatha Menon has said due to trauma of the forearms by violent impact. She was thrown forward against the front seat. She was therefore the victim of immediate, and it would appear, acute physical pain directly consequent on the collision. Nor can the difference in medical opinion come to the rescue of the defendants and assist them in repudiating liability.
13. Another argument has been advanced that the criterion for damages in a case of this kind shouldbe the ordinary effect of the act of negligence on an ordinary normal person. It is urged that plaintiff's sister who was sitting next to her sustained the same degree of shock with little or no harmful results. My attention has been drawn to an English decision, Griffith v. Peter Co. Ltd., 1939 1 E. R. 685, a very interesting case of plaintiff, a lady, who purchased a Harris tweed coat specially made for her to order by the defendants. She developed dermatitis and sued them for damages. It was found that plaintiff's skin was abnormally sensitive, and that there was nothing in the cloth which would have affected the skin of a normal person The abnormality of the plaintiff's skin not being made known to the seller, it was held that the warranty in the Sale of Goods Act did not apply. The interesting argument put forward by analogy is, as I understand it, that Mrs. Halligua was a neurotic lady who was peculiarly susceptible to a shock of the kind she experienced which would not ordinarily have affected any normal woman in the same way. It must be conceded that the effects of this accident on her have been unusual and extremely unfortunate. It may be that, as Dr. Viswanatha Menon has deposed, the persistence of the acute pain in her hands and arms may have been due to psychoneurosis. However, the fact remains that she was in a normal state of health until this collision and since then was reduced to a comparatively nervous wreck for some months.
14. Next it is argued that in any event plaintiff should not be awarded more than Rs. 3,000 as damages altogether, the sum she claimed in July 1947 after she was fully aware of the consequences she suffered. Of course had the Insurance company met that claim then, this suit would never have been instituted. I am not, however, prepared to hold that plaintiff is precluded from claiming more damages in view of her suffering and the deformity which developed in her little finger which according to medical opinion, and also as it appears to me, is likely to be permanent. The measure of damages in a case of this kind is by no means easy to assess. The nervous complexes of persons are different and so are their reactions to violent shock and even to physical injury. I am making allowance in the fixation of damages to a propensity which appears to have been manifested by plaintiff to shook of this description, and to her having a neurotic disposition which may be described as being somewhat abnormal. I would, taking all circumstances into consideration, fix the general damages for bodily injury, pain and mental shock at Rs. 4,000 and special damages by way of expenses for medical treatment and other miscellaneous items at Rs. 1000, unsubstantiated as these claims have been by vouchers. I have no doubt that plaintiff's husband has expended far more than this sum for treatment and other expenses consequent on thisaccident. It would not be equitable, however, to award more than this sum by way of special damages in view of the other aspects of this unusual case.
15. I come now to the contest between the taxi owner and the Insurance company as regards apportionment of liability. The original insurance policy has not been produced. The learned advocate explained that it was handed over along with other papers said to have been handed over to the company's agent in a lawyer's letter, Ex. P. 22, dated 18-11-1948. Defendant 1 himself who was a very deaf person in the witness box said that the insurance policy was lost, that it was kept in the car and he looked for it after the accident but could not find it. The copy of the policy, Ex. D-5, was prepared according to the evidence of a Superintendent of the Insurance Company, D. W. 1, from the office records. It shows a slip attached limiting the cover for each passenger to Rs. 2000 with Rs. 4000 admittedly corrected into Rs. 2000. On the face of it Ex. D. 5 describes itself as an 'Act policy' obviously issued under Section 95 (2) (b), Motor Vehicles Act which requires compulsory insurance for each passenger up to a limit of Rs. 4000. D. W. 1 explained that the original of Ex. D. 5 was prepared according to an earlier tariff, Ex. D. 6, which prescribed a premium of Rs. 3-8-0 for a Rs. 2,000 liability, and that the later tariff, Ex. D. 7, which came in on 26-5-1950 prescribed a premium of Rs. 3-8-0 for Rs. 4000. He would say that Ex. D. 6 was prepared to be filed in this suit from the office records, and that the Bombay head office drew attention to the fact that the liability was only for Rs. 2000 and that then this correction was made in the slip affixed to Ex. D. 5. It would appear that defendant 1 has suppressed original of the policy because it limited liability to Rs. 2000 only, whereas there was a statutory obligation imposed by Section 95 (2) (b) for insurance of each passenger upto Rs. 4000. The point is, in the circumstances what should be the extent of the Insurance Company's liability I can see no substance in the contention of Mr. Srinivasan for defendant 1 that the liability of the Insurance company is really unlimited by virtue of the general exceptions 3 and 4 in the policy. I find that the liability of the Insurance Company is under their policy limited to Rs. 4000. I find further that the Insurance Company having issued this policy as an Act policy, must be bound in the circumstances upto a limit of Rs. 4000, the minimum prescribed by the Act.
16. I have assessed the total damages to which plaintiff is entitled at Rs. 5000. She will have a decree against the Insurance Company, defendant 2, for Rs. 4000 with costs upto this amount and a separate decree against defendant 1 for Rs. 1000 with costs upto this amount, the defendants bearing their own costs. In the contest as between defendants l and 2, in view of defendant 1's suppression of the original policy, Idirect defendants 1 and 2 to bear their own costs. Costs of commission have already been directed to be costs in the cause. Costs will include an expert's fee to be paid to Dr. Viswanatha Menon fixed at Rs. 100. This will be paid in the first instance by plaintiff and recovered as costs. All costs to be apportioned as between defendants 1 and 2 in proportion to the amounts decreed against them.