Madras High Court
N. Sukumaran Nair And Anr. vs P. Narayanan on 6 February, 1996
Equivalent citations: (1996)2MLJ184
JUDGMENT S.S. Subramani, J.
1. Plaintiffs in O.S. No. 613 of 1978, on the file of District Munsif's Court, Srivaikuntam, are the appellants. The suit was one for damages of Rs. 5,000 with future interest and costs.
2. Material averments in the plaint are as follows: 2nd plaintiff is the daughter of 1st plaintiff. First plaintiff is an Iyappa devotee and is also an Iyappa Guruswami for a group of devotees. Defendant is also an Iyappa devotee. First plaintiff used to conduct Iyappa Pooja and Bajans in his house. Defendant used to attend the Pooja and Bajans regularly in the house of plaintiffs, and in course of time, he became a family friend of plaintiffs. Defendant developed intimacy with the second plaintiff and wanted to marry her. They wanted to marry, and the defendant also wrote to the first plaintiff on 8.8.1978 requesting his consent for their marriage. Plaintiffs also agreed and a betrothal also took place, whereby the marriage was agreed to be performed on 4.9.1978. Invitation cards were printed. But all on a sudden, plaintiffs saw a publication in 'Dhina Thanthi' stating that there was no such marriage, and the marriage also could not take place. In view of the breach of promise of marriage, the reputation of plaintiffs and their family was seriously impaired and they were put to great mental agony and torture. Especially the second plaintiff's reputation was lowered in the eye of the public. Her prospects of another marriage were also bleak. For the above reasons, plaintiffs filed the suit for damages of Rs. 5,000, with interest and costs.
3. In the written statement filed by the defendant, it is said that he used to go to the first appellant's house for Iyappa Pooja, and in view of the same, he developed some intimacy with the second appellant. The defendant also wanted to marry her. It is alleged by the defendant that subsequent to his letter dated 8.8.1978, he came to know that the second plaintiff was having some intimacy with other persons and, therefore, he did not want to marry her. Again, plaintiffs and defendant belong to different castes, and inter-caste marriage was opposed by his relations and, therefore, he refused to marry second plaintiff.-He said that there was no agreement between the defendant and the second plaintiff and, therefore, he is not liable to pay any damages.
4. Trial court as well as lower appellate court came to the conclusion that there was a promise by defendant for marrying second plaintiff, and the defendant had committed breach, and therefore, the plaintiffs were entitled to damages.
5. Trial Court came to the conclusion that the reputation of plaintiffs was affected. It was of the view that the prospects of the marriage of second plaintiff were also bleak, and since the marriage was broken, her reputation was also affected. For getting a decent marriage, the status of a bridge will be considered by every person in society, and when the same is affected by cancellation of marriage especially after a close intimacy with the defendant, there will be difficulty for the plaintiffs to get a proper alliance in future. Taking all these factors into consideration, trial court awarded Rs. 5,000 and costs. Interest was also awarded at the rate of 6% per annum from the date of plaint.
6. Against the judgment, defendant preferred A.S. No. 33 of 1980, on the file of the Additional Subordinate Judge's Court, Tuticorin. Lower Appellate Court confirmed all the findings of the trial court. But, on the question of awarding damages, it held that in the case of loss of reputation arising from breach of contract, it is impossible to set the money value upon the injury suffered, for, who can measure in terms of money, the injury sustained by wounded feelings. Therefore, it is, at best, a vague speculation in a dark field, and courts of law have often confessed inability to make a complete and adequate compensation, how much the sufferermay deserve it. In that view, the lower appellate court reduced the damages to Rs. 500.
7. In this second appeal by the plaintiffs, we are concerned only with the quantum of damages granted by the lower appellate court.
8. At the time of admission of this second appeal, the following substantial question of law was raised for consideration:
Whether the reduction of the quantum of damages to Rs. 500 by the lower appellate court is in accordance with law?
9. Let me first of all consider the question of law on the subject.
10. In The Law of Contract' - Third Edition (1970), the learned Author G.H. Trietel has said at pages 811 and 812 thus:
A plaintiff can sometimes recover damages in tort for injury to his feelings, far exceeding any financial loss suffered by him. In Hurst v. Picture Theatres Ltd. the plaintiff was forcibly ejected from a cinema seat for which he had paid 6 d. He recovered $ 150 in an action for assault and false imprisonment. In substance this was compensation for the indignity he had suffered. Such damages cannot be recovered in a contractual action. Thus in Addis v. Gramophone Company Limied 1909 A.C. 488: (1908-10) All E.R. 1, a company wrongfully dismissed its manager in a way that was "harsh and humiliating". He recovered damages for his injured feelings or for the loss he might suffer because the dismissal made it more difficult for him to get another job. Damages cannot generally be recovered in contract for injured feelings or loss of reputation. Nor can damages be recovered for the anxiety which a breach of contract may cause the injured party; though where actual mental illness results from the breach damages can be recovered in respect of it, provided that it is not too remote a consequence.
Further down, learned author further says that in the case of injured feelings, special damages will be paid e.g., breach of promise of marriage. Learned Author says that though technically it is based on a contract, in many respects the claim for damages is analogous to actions in tort. It is stated thus:
Damages for injured feelings are only recoverable in the special case of actions for breach of promise of marriage, which, though technically based on contract, are in many respects more closely analogous to actions in tort.
11. Sutton and Shannon on Contracts - Seventh Edition (1970) - Chapter XVII deals with damages in the case of breach of contracts. Learned Authors say that whenever either party has committed a breach of contract, the other party has a good cause for action for damages whether or not he has sustained actual loss by the breach. It is further said that the damages recoverable in actions for breach of contract are ordinarily either nominal or substantial but not exemplary. Learned Authors say that, to the above Rule, there are two exceptions. In page 401 of the said book, learned authors have defined as to what is meant by 'Loss sustained' for the purpose of recovering damages. While commenting on the same, the learned authors have said that the loss sustained does not include aggravated damages for the disappointment of mind or vexation caused by the hurtful or humiliating manner in which the defendant broke his contract, nor for injury to existing reputation. Learned authors say that there are two exceptions for the same, where exemplary, damages are given. The exceptions are dealt with in the same page (401). It reads thus:
Exceptions: There are two kinds of contracts which are exceptions to the general rule, and in which a plaintiff may recover for injury to feelings or reputation.
1. In actions for breach of promise of marriage damages are given for the plaintiffs injured feelings and loss of honourable reputation resulting from the misconduct of the defendant may be taken into account. They are partly punitive
2. xxx xxx xxx.
12. Anson on 'English Law of Contract' - 22nd Edition (1964) deals with 'Compensatory nature of Damages' at page 499, and say thus:
The object of awarding damages for breach of contract is to put the injured party into the position in which he would have been, had there been performance and not breach. It is not to put him in the position which he would have enjoyed had the contract never been made. Also damages for breach of contract are given by way of compensation for loss suffered, and not by way of punishment for wrong- inflicted. Hence the 'vindictive' or 'exemplary' damages of the law of tort have no place in the law of contract. To this rule, however, the action for breach of promise of marriage is an exception; in that case injury to the feelings of the disappointed party may be taken into account in the assessment of damages except where the (or he) is deceased and the action is brought for the benefit of her estate.
13. Chitty on Contracts - 25th Edition (1983) Volume 1 - General Principles - says (at page 1682) thus:
Exemplary damages are damages awarded against the defendant as a punishment, so that the assessment goes beyond mere compensation of the plaintiff. Such "punitive of "vindictive damages were permitted in some cases of tort until 1964 when the House of Lords in Rookes v. Barnard (1964) 2 W.L.R. 269: 1964 A.C. 1129: (1964)1 All E.R. 367, severely restricted their use in such cases by specifying only two categories where they may be awarded. The right to receive exemplary damages for breach of contract was, for many years before 1964, confined to the single case of damages for breach of promise of marriage....
14. In McGregor on Damages - 14th Edition (1980), in the footnote at page 568, the learned Author says thus:
Another long-standing exception to the basic pecuniary flavour of contract damages appeared in the anomalous breach of promise of marriage where damages for non-pecuniary loss and even exemplary damages were recoverable.
In the same page, in the main text, learned Author has said that contract has not presented much of a problem since recovery for breach of contract has been almost invariably for pecuniary loss only. A longstanding exception appears where the breach of contract results in physical injury or death to the contracting party. Thereafter, learned author says that the awarding of exemplary damages in the case of breach of marriage has now ceased in view of the statute law passed in 1970.
15. Law of Damages and Compensation - 5th Edition (1985) Volume III - by C. Kameshwara Rao - deals with the topic 'Damages under Section 73, Indian Contract Act.' At page 2316, the learned Author has said thus:
The question whether such damages, as well as damages for loss of reputation can be admitted under the language of Section 73, Indian Contract Act, has nowhere presented any difficult. The expression loss or damage used in the section covers not merely pecuniary loss but also very other kind of loss or damage which is suffered by a person as a result of the breach of contract of marriage. Consequently it has been held in several cases that compensation may be granted for any injury to the plaintiff's character and reputation or to his prospects in life, as being loss or damage, which naturally arose in the usual course of things from the breach of promise. Damages for loss of reputation are granted on the ground that the defendant's breach of promise to marry will render it more difficult for the plaintiff to procure another suitable match. Some damages will also be awarded for the annoyance and injury to feelings which the breach of promise has caused to the plaintiff.
The measure of damages in an action for breach of promise of marriage among Hindus has been defined by the Madras High Court in Venkata Narasimha v. Govinda Krishna 1937 M.W.N. 1274. Where a contract is entered into between two Hindus that the daughter of one of them should be given in marriage to the son of the other, the agreement is between or on behalf of the respective families of the parties to the marriage. When such a contract is broken damages of two kinds may naturally result:
(1) the pecuniary loss, if any, and the injury to the feelings and prospects of the bride or bridegroom personally;
(2) the pecuniary loss and the loss to the credit and reputation of the family of the injured party.
16. V.G. Ramachandran - on 'The Law of Contract in India' - Volume II - (1971) in his Commentaries on Section 73 of the Indian Contract Act, has said thus:
Breach of promise of marriage: There are three cases where damages recoverable for breach of contract have certain limitations. They arise in the case of
(i) Injured feelings and reputation;
(ii) Non-payment of money;
(iii) Failure to make title.
As to injured feelings and loss of reputation Addis v. Gramophone Company Limited, pointed that while a wrongly dismissed company manager can recover damages for loss of salary and commission he cannot sue for damages occasioned by injured feelings and loss of reputation in that he could not get another job.
But in the case of breach of promise of marriage, damages for injured feelings are recoverable in English Law. Technically, the breach is based on contract though the situation is more akin to tort. Generally, contracts do protect only economic interests which are in no way affected by injured feelings.
The learned author after narrating the circumstances under which damages could be awarded, has said thus:
In Buddha v. Mansharam A.I.R. 1914 Lah. 83, the court was of the opinion that in assessing damages, annoyance, loss of reputation and resulting injury may all betaken into consideration apart from the loss incurred by way of expenses....
17. In Buddha v. Mansharam A.I.R. 1914 Lah. 83, it has been held thus:
In assessing general damages in the case of a breach of a betrothal contract the court will not take into consideration the amount which the plaintiff may have to pay if he wishes to secure another woman as his wife. But something must be awarded for the annoyance which the breach of the contract has caused him and also for possible loss of reputation and injury to feelings.
18. In Vishanji Bhanjee v. Gangashankar Shambhoolal A.I.R. 1953 Kutch. 26, learned Judge, after discussing the entire law, has held thus:
As regards quantum of damages, it is clear that there was hardly any good evidence about loss of reputation. Hence, what should have been decreed was something by way of solatium and possible loss of reputation.
19. Recently, Gujarat High Court has considered this point in the decision reported in Miss.Prema Korgaokar v. Mustak Ahmed and a Division Bench of that High Court has held thus:
In Alison's Law of Contract, it is observed as follows under the head Compensatory Nature of Damages' in Chapter 17 of Remedies for Breach of Contract', damages for breach of contract are given by way of compensation for buffered, and not by way of punishment for wrong inflicted. Hence the vindictive' or 'exemplary' damages of the law of tort have no place in the law of contract. To this rule, however, the action for breach of promise of marriage is an exception; in that case injury to the feelings of the disappointed party may be taken into account in the assessment of damages.
This is the well settled common law in England which applies in India also. Thus, the breach of promise of marriage is not only actionable and there is no bar of public policy operating against the same but even exemplary damages apart from the normal damages would be awarded. In the case of Jarvis v. Swans Tours Limited (1973)1 Q.B. 233, the court of Appeal held that the plaintiff is entitled to compensation for his disappointment and distress at the loss of the entertainment and facilities for enjoyment which he had been promised in the defendant's brochure and his damages should be increased to £ 125. In that case, the charges for the fortnight holiday were $ 63.45 and it was proved that he did not get the promised facilities, entertainment and enjoyment and had inconvenience and loss of benefit. It was found that in the first week, a holiday he got was very largely inferior to what he had been led to expect. The court at the first instance took the difference in value between what he paid for and what he got and it was though that the plaintiff had got half of what he had paid for and so the trial court gave him half the amount which he had paid, namely, £ 131.72. The Court of Appeal enhanced the damaged to £ 125 and negatived the argument the on a breach of contract, damages cannot be given for disappointment of mind occasioned by breach of contract. Lord Denning observed as follows:
I think that those limitations are out of date. In a proper case damages for mental distress can be recovered in contract, just as damages for shock can be recovered in tort. One such case is a contract for a holiday, or any other contract to provide entertainment and enjoyment. If the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. I know that it is difficult to assess in terms of money, but it is no more difficult than the assessment which the courts have to make every day in personal injury cases for loss of amenities.
What is said to be applicable in a case of breach of promise of a happy holiday would most strongly and appropriately apply in the case of breach of promise of marriage and happy family life.
20. The Kerala High Court also applied the same principle in the decision reported in Ramalinga Mudali v. Natesa Mudali .
21. On the above legal position, it is clear that the plaintiffs have a cause of action to sue for damages.
22. For assessing the damages, we have to consider certain admitted facts. The defendant admitted that he was having acquittance with the second plaintiff for more than two years and they were having intimacy. This was a fact known to all the members of the society. So, naturally, when the marriage was broken, especially on a false ground that she is having a bad reputation, that must have affected her reputation. Her future is bleak and her prospects of getting a decent marriage according to status is also remote. The conduct of the defendant after having written to her parents that he intends to marry her and also after the betrothal ceremony, publishing in paper without prior intimation to the plaintiffs, is not proper. His accusation of bad character on her, and that she is having connections with other persons, really shows that he was not sincere to her, and, at the same time, gave her hopes of a married life. The other reason mentioned by the defendant is that his parents did not agree for an inter-caste marriage. It was not with the consent of the parents, the intimacy between the defendant and the second plaintiff continued for more than two years. Taking into consideration these aspects of the case, the damages awarded by the trial court cannot be said to be excessive. The lower appellate court said that one cannot measure in terms of money the injury sustained by wounded feelings. That is only a vague stipulation in a contract for marriage. As stated above, when awarding exemplary damages, it is in the nature of penalty which law recognises, and in such circumstances, they are partly punitive.
23. In the result, for the reasons stated above, the second appeal is allowed with costs by modifying the decree of the lower appellate court by enhancing the damages to Rs. 5,000 as claimed in the plaint. There will be a decree as prayed for in the plaint, with interest and costs, from the date of plaint, till date of realisation.