Andhra HC (Pre-Telangana)
P. Satyanarayana Through His Wife P. ... vs I. Babu Rajendra Prasad And Anr. on 7 August, 1987
Equivalent citations: I(1988)ACC510
Author: M. Jagannadha Rao
Bench: M. Jagannadha Rao
JUDGMENT M. Jagannadha Rao, J.
1. This appeal raises questions relating to assessment of non-pecuniary damages in cases such as loss of both eyes and severe head injury resulting in total loss of mental faculties. Today the appel- lant is mentally unsound.
2. The accident occurred in Kakinada town on 4-4-1979 at about 1 00 p.m. when the appellant who was going on a bicycle was knocked down by the jeep belonging to the District Collector's office. The appellant was then aged 25 years. He was married and his wife, two young daughters and a son are dependent on him. Unfortunately, the Tribunal has held that negligence on the part of the jeep driver was not established and dismissed the claim totally. On quantum, it held that evea if there should be an award, it should be Rs. 25,000/- for the per nanent disability (on the basis of monthly earnings of Rs. 200/-) and Rs. 5,000/- towards medical expenses and for pain, suffering etc , in all, Rs. 30,000/-. The claimant has preferred this appeal. Both findings are attacked by his learned Counsel Mr Raj Reddi, advocate representing Mr. T. Bali Reddy while, on the other hand, Miss V. Lakshmi Devi, the learned Government Pleader, tried to support the findings.
3. On the question of negligence, the claimant examined, apart from his mother-in-law PW 2 near whose house the accident occurred, three others, namely, PW I. (brother-in law), PW 3 (a rickshaw puller at the bus stand) and PW 4 (another eye-witness). The Tribunal doubted the presence of PWs 1, 3 and 4 and rejected their evidence. I am not basing my conclusions on the evidence of PWs 1, 3 and 4 but I am basing mainly on the evidence of PW 2 and RW 1 (the driver), the admissions in the counter, the facts emamating from the FIR Exh. B-l and other circumstances. Admittedly, the cyclist started from his mother-in-law's (PW 2"s) house on the right side of the road and then crossed the road and proceeded from south to north. The jeep was coming from the opposite direction from north to south. The evidence of PW 2 and, in fact, the suggestions to other PWs by the respondent's counsel in the cross-examination reveal clearly that, even according to the respondent, the appellant was knocked down and fell from the cycle in front of the gate of Chaganti Lakshmi's house, on the left side of the road. Coupled with this is the admission in the counter that the jeep crossed some school children who were going in front, of the jeep just before the accident. These two important circumstances were unfortunately omitted by the Tribunal from consideration. Assuming the absence of PWs 1, 3, 4 at the scene, there is no justification for rejecting PW 2's evidence, the accident having occurred so soon after the appellant got up on the cycle and left PW 2's house, all within a few yards, when the jeep knocked him down. The Tribunal repeatedly raised doubts as to why or how the jeep could have moved to its tight. This doubt is clearly answered by the above two circumstances. The other important circumstances are that there is no other evidence except that of the driver, RW 1, that the victim dashed against some pedestrians in his front and came' to his right side. In fact, there is no witness for respondent except the interested evidence of RW 1. It is admitted in the statement of RW 1 before the police (see Exh. B-l) that in the jeep, there was a government employee, R. Satyanarayana, travelling He was not examined. When the accident occurred at about 12.30 p m or 1.00 p m. there is no reason as to why, in a big town like Kakinada, RW 1 should have gone to the police station only at 4.30 pm. when the case was registered unless it be that, RW 1 did not take the victim to the hospital and had fled from the scene. This is clear from the evidence of PW 2, the mothe inlaw and of PW 5, the wife of the victim. The medical evidence does not also speak of RW 1 bringing the victim to the hospital. In fact, there is no evidence for RW 1 in this regard. Instead of concentrating on these crucial facts, the Tribunal discovered discrepancies in the evidence of PWs 1. 3, 4 and rejected their evidence and then the whole theory of negligence. Haying regard to the serious injuries-losing one eye on the spot (and the other later) and the severe head injuries --the inference can only be that the jeep was going at a high speed. If, in fact, it was going slow at 5 km. as alleged for the respondent and the cyclist hit the jeep, these injuries are almost impossible. The place where the claimant fell, even as per the respondents, requires invoking the principles of res ipsa loquitur. I have no hesitation in holding that this serious accident occurred solely because of the negligence of RW 1. 1 hold accordingly
4. In my judgment rendered in K. Sapnaa v. B. Appa Rao 1988 ACJ 113 (AP), I have ducussed the various sub-heads relating to pecuniary and non-pecuniary losses. Again in my judgment in Bhagwandas v. Mohd Arif 1987 ACJ 1052 (AP), I have discussed the mode of assessment of the quantum of pecuniary losses. Now; in this judgment, I propose to consider the principles and mode of assessment of non-pecuniary losses.
5. I shall presently deal with the question of quantum. As this is a case of loss of two eyes (ultimately), and severe head injury leaving the claimant a total mental wreck, it is necessary to refer to certain fundamental concepts relating to non-pecuniary losses. They are relevant in this case because of present mental condition of the appellant. Quantum: Non pecuniary Losses--Subjective or Objective Approach ?
6. Before I go into the subject proper, it is necessary to steer clear of certain fundamental objections based on the 'subjective' approach as opposed to the 'objective' approach. These are again interrelated, respectively, to the theories of 'functional compensation' and 'full compensation'
7. In injury cases, money compensation is paid for non-pecuniary
8. It may be noted that in fatal cases, non pecuniary damages go into the head of loss to the estate.
(a) Plaintiffs who are not unconscious:
9. In case the victim in the accident is conscious after the accident, there is not much difficulty in compensating him on a 'full compensation' basis and for awarding substantial damages for 'loss of expectation of life', 'loss of amenities of life' and also for 'pain and suffering'. This is because the victim is fully conscious and suffers all these losses and he is also 'aware' of these losses, including 'pain and suffering'. The difficulty arises only in the case of unconscious plaintiffs'.
(b) Plaintiffs who are unconscious
10. Here the'awareness'of the victim becomes somewhat material while assessing non-pecuniary damages. Here again two views are expressed--the'subjective'view and the'objective'view.
11. The 'subjective' view says that compensation should depend upon the question whether the injured person is able to experience the 'loss of amenities of life', or 'the loss of expectation of life' or 'pain and suffering' so that there could be some meaning or purpose in paying him for these losses. It is argued here that if the payments are not going to be of much use to the. victim, they should hot be awarded at all for it is not the purpose of the law, to pay damages which might only benefit the victim's legal heirs. This approach is called the' functional or subjective approach'.
12. The 'objective' view is that 'full compensation' is to be paid. That principle was laid down by Lord Blackburn in Livingstone v. Rawyard Coal Co., (1880) 5 AC 25, and was restated later in Benham v.Gambling 1941 AC 157, by Lord Simon, a case dealing with 'loss of expectation of life' and there the 'objective' method of assessing damages was elucidated as opposed to the 'subjective' method. In the latter case, the House of Lords was dealing with a body aged two and half years who had become unconscious after the accident and who died on the same day. Awarding a sum of £200 for 'loss of expectation of life', Viscount Simon, LC, in a famous passage, stated as follows: "The thing to be valued is not the prospect of length of days, but the prospect of a predominantly happy life.... The ups and downs of life, its pains and sorrows as well as its joys and pleasures-all that makes up "life's fitful fever'--have to be allowed for in the estimate...the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness; the test is not subjective and the right sum to award depends on an objective estimate of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not."
(Emphasis supplied)
13. Thus, in the above passage, Lord Simon, LC. propounded the 'objective' or 'non-subjective' theory as more appropriate for assessing 'loss of expectation of life'. In that case, a sum of £ 200 was awarded under that head on the ground that the 'awareness of the victim was irrelevant. Later, in 1962, in Wise v. Kaye 1958-65 ACT 208 (CA, England), the majority of the Court of Appeal and in 1964 in H. West & Son Ltd v. Shephard 1953-65 ACJ 504 (HL, England), (both being cases of unconscious plaintiffs), the majority of the House of Lords extended the 'objective' method to the estimation of damages for 'loss of amenities'. The majority clearly ruled that 'awareness'was not a condition precedent for the award of damages for 'loss of amenities' and applied the'objective'test for awarding damages and held that 'substantive' damages are to be awarded therefof. However, the minority consisting of Diplock, LJ. in the former case and Lord Ried and Lord Devlin in the Tatter, applied the 'subjective' or 'awareness' test and also advocated the award of smaller conventional sums toward 'loss of amenities of life'for, according to them, if larger amounts were paid to a person who is not aware of the 'loss of enjoyments' of life, they would not be useful to him and would only benefit the legal representatives ultimately. The result of all these cases starting.from Benham v. Gambling 1941 AC 157, is, therefore, that the'objective' test is applied for awarding substantial damages under the heads of 'loss of expectation of lite' and'loss of amenities of life' and the subjective or awareness test is rejected.
14. The English courts have, however, made a difference when it came to the question of awarding damages for 'pain and suffering' for unconscious plaintiffs. Here they stuck to the'awareness' theory and held that only'moderate' conventional sums have to be awarded on the functional or subjective approach. This distinction is maintained by them even today between damages for 'loss of expactation of life' and 'loss of amenities of life on the one hand and damages for'pain and suffering' on the other. Even in the latest case of Lim Poh Choo v. Camden and Islington Area Health Authority 1980 ACJ 486 (HL, England), (again relating to an unconscious plaintiff) Lord Scarman has reiterated that the award towards 'pain and suffering' 'depended upon the plaintiffs' 'personal awareness of pain, her capacity for suffering'. The English courts have stated that if unconscious' ness was almost immediate to the accident almost nothing is payable but if it is not immediate, a moderate sum is payable depending on the length of time of awareness. However; there is one sliver lining in these cases, namely, that it has been held that the 'wealth' or 'social status' of the m.victim is not relevant while awarding damages for 'pain and suffering'. In the case.of a wealthy plaintiff in Fletcher v. Autocar ani Transporters Ltd 1969 ACI 99 (CA, England), Lord Diplock, LJ. said "high though his deprivation ranks, I cannot think that it ranks any higher because the plaintiff, before the accident, was a rich man". Salmon LJ. said "the normal compensation for the loss of an arm as such is the same for a rich man as it is for a poor one". Thus, the position in England, therefore, in the . case of unconscious plaintiffs is that while the 'objective' or'full compensation' approach is adopted for awarding substantial damages towards 'loss of expectation of life' and 'loss of amenities or enjoyments of life', on y mo erate damages are awarded under, the subjective or awareness appfoac for 'pain and suffering'.
15. It is surprising that the Australian and Canadian approaches to these fundamental concepts in cases of unconscious plaintiffs are very unsympathetic to victims in that they apply the subjective or utility or 'functional'approach not merely to the award for 'pain and suffering'(as in England) but even to the award for 'loss of expectation of life' and 'loss of amenities of life', the majorityof the Australia High Court in Skelton v. Collins (1965-66) 115CLR 94 (a case of an unconscious plaintiff) held that only moderate damages are payable for all kinds of 'non-pecuniary'damages. In particular, Windeyer, J. based his conclusions on the'solace' theory. The plaintiff, observed Windeyer, J."is not, like Samson Agonistes, aware and able to bemoan his fate 'to live a life half-dead, a living death'. His existence is, in very truth, a living death."
16. Likewise, the Canadian Supreme Court, too, took the same view and has held that even the non-pecuniary damages for loss of expectation of life and loss of amenities of life, should be assessed only on a functional basis awarding moderate conventional amounts and not substantial damages as in England. These views were propounded in a trilogy of Canadian cases in An irews v. Grand and Toy Alberta Limited 83 DLR (3d) 452; Thornton v. School District No. 57 83 DLR (3d) 480; Arnolds. Teno 83 DLR (3d) 609, (all being cases of unconscious plaintiffs). In Andrew's case (supra) the 'solace' theory expressed by Windeyer, J. in the Australian case was approved by Dickson, J. stating ;'Solace' in this sense is taken to mean physical arrangements which can make life more endurable rather than 'solace' in the sense of sympathy. To my mind, the last approach has much to commend it, as it provides a rationale as to why money is considered compensation for non-pecuniary losses such as loss of amenities, pain and suffering and loss of expectation of life. Money is awarded because it will serve a useful function in making up for. what has been lost.
17. If damages for non-pecuniary loss are viewed from a 'functional' perspective, it is reasonable that large sums should not be awarded, once a person is properly provided for in terms of future care for his injuries and disabilities.
(Emphasis supplied)
18. This 'subjective'or'functional'approach of the Australian court has, unfortunately, been accepted by Prof. Harold Luntz of the Melbourne University in 'Damages for Personal Injury, Rhetoric, Reality and Reform from an Australian Perspective', Current Legal Problems 1985, page 29, while the Canadian view has commended itself to Prof. Beverley M. Mclachlin of the University of British Columbia, Vancouver in ' What Price Disability: A perspective on the Law of Damages for Personal Injury, Vol. 59, Can. Bar Rev. 1981, p. 1. Later in England too the Pearson Commission (1978) surprisingly advocated the 'functional'approach (Vol. 1, para 397) when it said:
We think the approach should be to confine non-pecuniary damages only where they can serve some useful purpose, for example, by providing the plaintiff with an alternative source of satisfaction to replace one that he has lost.
(Emphasis supplied)
19. Fortunately, the English courts have not, till today, accepted this view so far as damages for loss of expectation of life and loss of amenities of life (of unconscious plaintiffs) are concerned though with regard to 'pain and suffering', they follow the awareness principle.
20. In my opinion, the English view of awarding 'substantial non-pecuniary damages' for'loss of expectation of life' and'loss of amenities or enjoyments of life' in cases of unconscious plaintiffs is the correct one and the Australian and Canadian views are not correct. Weighty reasons in favour of the English view have been given in the English cases in Benham v. Gambling 1941 AC 157; Wise v. Kaye 1958-65 ACJ 208 (CA, England); H. West & SonLtd. v. Shepherd 1958-65 ACJ 504 (HL, England) and Lim Poh Chao v. Camden and Islington Area Health Authority 1980 ACJ 486 (HL, England). The last one was also a case of an unconscious plaintiff. In that case, Lord Scarman summarised the position and stated that the pleas in favour of the moderate awards for 'loss of expectation of life' and loss of amenities of life' did not stand to reason. He rejected the argument that higher damages for non-pecuniary losses increased the public burden through increased premiums and taxes and the further contention that improved National Health Service provisions obviated the need for substantial damages. Several other reasons were given, namely, that 'the principle of the law was that compensation should, as nearly as possible, put the party who has suffered, in the same position as he would have been, if he had not' sustained the wrong' (as stated by Lord Blackburn in Livingstone v. Rawyard Coal Co, (1880) 5 AC 25. It was stated further that there was no room here for considering the adverse consequences of a high award on the wrong-doer or those who finance him. Another very important consideration referred to by Lord Scarman is that it would-be dangerous to suddenly switching down to 'moderate' figures for loss of expectation of life and for loss of amenities of life having all these years awarded substantial damages under these two heads by applying the'objective'method. It was observed that since 1962, when Wise v. Kaye 1958-65 ACJ 208 (CA, England), was decided, higher awards were being made in England for non-pecuniary damages. After 1962, money values had been eroded by steady inflation and consequently courts had been steadily upgrading the 'conventional' amounts that were being granted towards these items of non-pecuniary losses. If now, suddenly, the 'subjective' approach was to be adopted, these awards would slump down to unjust figures. Any sudden reduction of awards would, Lord Scarman said:
cause widespread injustice....For since 1962, settlements have proceeded on the basis that the rule adopted in Wise's'. Kaye 19 8-65 ACJ 208 (CA, England), was correct, and Judges have had to asses damages on the same basis in contested cases. We are in an area of 'conventional' awards for non-pecuniary losses, whose comparability matters. Justice requires that such awards must be consistent with the general level accepted by the Judges.
(Emphasis supplied) and be said, 'conventional awards would become 'contemptible'. I may, in this context, add one more reason, namely, that even those who have propounded the 'subjective or 'functional' approach have not laid down any proper guidelines, to make that approach meaningful. At least, for the 'objective* approach, there is an existing pattern of awards for different types of injuries. But there is no such material available for. applying the functional approach. In fact Prof Mclachlin has pointed out that though in Andrev's case 83 DLR (3d). 452, Dickson, J of the Canadian Supreme Court advocated the 'functional' approach, the learned Judge resorted to the 'objective' approach when it came to the actual compilation of the figures for awarding damages for loss of expectation of life, and 'loss of amenities of life, for unconscious plaintiffs. Again almost all the leading authors on the Law of Torts have opted for the 'objective' method rather than the 'subjective' one. Munkman on Damages 1985, p. 16, Kemp do Kemp 1982, paras 1007-8, Charlesworth on Negligence, 6th Edn. 1977,para 1427, Winfleld and Jobwicz onTort, 12th Edn. 1984, pp. 625-628 and Sdlmond and Heuston, Law of Torts, 18th Edn. 1984, p. 539. Therefore, the'objective'approach is the correct one for assessment of these non-pecuniary damages.
21. However, the position in England, and even in Australia and Canada appears to be at least far better than that in the Soviet Union, China, Rumania and Hungary where, no compensation whatsoever is payable for 'pain and suffering', (whether the victim is conscious or not). The total denial there appears to be bated on a principle of Communist philosophy that compensation is part of a bourgeois outlook. It is atleast gratifying that in Bulgaria, Yugoslavia, Poland and Czechoslavakia, some monetary compensation is paid for pain and suffering even though these countries too follow the same political philosophy. In Israel, Denmark, Japan, Mexico and Switzerland moderate damages are paid though not as high as in the United States. [Arye Miller: Should social insurance pay compensation for pain and suffering? 1982 International and Comparative Law Quarterly,* p. 550].
22. I agree entirely with the objective approach of the English courts for assessing 'loss of expectation of life' and 'loss of amenities or enjoyments of life' in the case of 'unconscious plaintiffs'. So far as damages for 'pain and suffering' are concerned, the subjective approach adopted in such cases by the English courts is no doubt based on the. principle .of 'awareness' but it looks strange that wrong-doer whose negligence makes the victim unconscious is placed in a more advantageous position than one who inflicts a lesser injury which does not render the victim unconscious. Subject to this observation, I accept the English view in principle even with regard to 'pain and suffering'. As the appellant in this case has become mentally unsound, the above principles are relevant in this case. Non-Pecuniary Losses: Computation--Periodic Review of Conventional Amounts to offset Inflation.
(a) Non-pecuniary losses for similar injuries -- can be compared and reviewed.
23. Over a long course of years, coyrts have attributed--in a rough and ready fashion--a particular conventional amount for each particular type of injury. There is, no doubt, no special rationale about this quantum except that the more serious or severe injuries attract higher compensation--on a comparative basis After all, some compensation has to be paid for non-pecuniary losses, such as, loss of expectation of life, loss of amenities of life and for pain and suffering, both past and present Today, the process of computation of damages for these non-pecuniary losses consists mainly in standardising the amounts and in upgrading past awards, in keeping with inflation, to meet current values of money. That is how the principle of awarding conventional amounts on a comparative basis and in renewing them periodically to offset inflation has today become the principal process of computation of damages for non-pecuniary losses. In Bird v. Cooking & Sons Ltd 1951 (2) TLR 1260, Birkett, LJ. explained this method as follows:"Although there is no fixed and unalterable standard, the courts have been making these assessments for many years, and I think they form some guide to the kind of figure which is appropriate when, therefore, a particular matter comes for review, one of the questions is, how does this accord with the general run of assessment made over - the years in comparable cases."
24. This method was approved in H. West & Son Ltd v. Shephard 1958-65 ACJ 504 (HL, England) and also by the Judicial Committee in Singh Toong Fong v. Omnibus Co. Ltd. 1964 (3) All ER 925. The word 'conventional' used by the higher courts does not mean that the amount is arbitrary but rather means that it is arrived at by general custom and agreement. It does not mean 'token' damages but means the 'standard' level of damages (Munkman, p. 21). It is a figure derived from experience and from awards in comparable cases.
(b) Pecuniary losses or total losses--not to be compared:
25. It is unfortunate that Tribunals are, while comparing awards in injury cases, taking the total awards given in earlier cases, which sums include the damages not only for non-pecuniary but also for pecuniary losses. This is not correct. The comparison of figures must be limited to the conventional figures, given for 'pain, suffering and loss of amenities' only. So far as pecuniary losses are concerned, they are not comparable because each case depends upon the particular earning capacity of the injured person. Therefore, the comparison of the total sum awarded --be they cases of similar injuries--is to be avoided. The comparison, is to be limited to the sums awarded for 'pain, suffering and loss of amenities'.
(c) Positive and negative factors:
26. There are positive and negative factors to be considered. On the one hand, the extent to which the good things of life are taken away (i.e., the loss of amenities) and on the other, the positive infliction of unpleasant things (pain and suffering). Many conclusions in the law and in practical affairs are reached empirically or rather pragmatically, that is by feel and instinct, such as for example, conclusions on the standard of care or what amounts to misconduct or cruelty. In the philosophical system of Aristotle, allowance was made for 'practical judgment' (phronesis), as a valid mode of correct decision, its foundation being that anyone who is familiar with a particular subject matter can decide a point by instinct. So it is with the question of money value. One may be certain that £500 is ridiculously small and £ 100,000 extravagantly large for the amputation of a leg, but a fair point is reached by the 'collective instinct' of courts based upon their knowledge of the current values of society. (Munkman pp. 21-22).
(d) 'Brackets'or 'range' of non-pecuniary damages.
27. Today, notions of certain 'brackets' or 'range' of damages for non-economic damages have been built up. More recently in Writ v. British Railways Board (1983) 2 AC 773, Lord Diplock observed:
Thus, so called 'brackets' are established, broad enough to make allowance for circumstances which make the deprivation suffered by the individual plaintiff greater or less than in the general run of cases, yet clear enough to reduce unpredictability of what is likely to be the most important factor in...settlement of claims. 'Brackets' may call for alteration not only to take account of infliction, for which they ought automatically to be raised, but also...to take account of advances in medical science (Emphasis supplied) Comparative awards are relevant only in assessing non-pecuniary losses whereas financial losses are now calculated mathematically in the award of non-pecuniary losses, a judge draw? from his own 'experience' which he acquires from knowledge of other judges' decisions as the amounts, from his own knowledge and from his ordinary experiences of life. Waldon v. War Office 1956(1) All ER 108, per Singleton LJ]. In other words, the judge takes 'judicial notice' of the current levels or brackets or ranges of awards.
28. For the purpose of upgrading conventional amounts fixed by courts for accidents of earlier years, I am giving the Wholesale Price Index as well as the Consumer Price Index (Reserve Bank of India, Economic Division). They can be applied if amounts fixed by courts for the relevant year in which the accident has occurred are not available.
INDIA-CALENDAR YEAR BASIS Year WPI (Base 1970-71=100) CPI (Base 1960=100) Index % Variation.
Index %Variation 1 2 3 4 5 1970 99.0 + 62 184 + 5:1 1971 105.0 + 6.1 190 + 3.3 1972 1.13-0 + 7.6 202 + 6.3 1973 131.6 +16 5 236 + 16.8 1974 169 2 +28.6 304 +28.8 1975 175.8 + 3.9 321 + 5.6 1976 1724
-- 1 9 296
-- 7.8 1977 185.4 + 7.5 321 + 84 1978 185 0
-- 0 2 329 + 2.5 1979 206.5 +11.6 350 + 6.4 1980 248.1 +20.1 390 + 11.4 1981 278.4 + 12.2 441 + 13.1 1982 285.3 + 2.5 475 + 7.7 1983 308.5 + 8.1 532 + 12.0 1984 334.0 + 8.3 576 + 8.3 1985 353,3 + 5 8 608 + 5.6 1986 372.2 + 5.3 661 + 8.7 Classification of Injuries: A Useful Guide.
29. If a collection of cases on the quantum of damages is to be useful, it must necessarily be classified in such,a way that comparable cases can be grouped together. No doubt, no two cases are alike but still, it is possible to make a broad classification which enables one to bring comparable awards together. Such classifications have been made by Bingham in his Motor Claims Cases, Munktnan in his Employer's Liability and Kemp and Kemp in their Quantum of Damages. (Munkman p. 181).
30. Apart from stray attempts to make comparative assessments by some of our High Courts, the most rational and systematic comparison is made, if I may say so with respect, in the Gujarat High Court and particularly in the illuminating judgments of P.D. Desai, J. (as he then was) right from 1978 which have been a great source of knowledge and inspiration.
31. Cases relating to injuries have been classified into four categories, i.e.,; (a) total wrecks ; (b) partial wrecks and (c) where limbs and eyes and other specific parts of the body are lost, which can be sub grouped according to the type of limb lost and (d) smaller injuries which cannot be specifically grouped but for which compensation can be assessed by comparison with injuries of loss of limbs, e.g., comparing permanent 'wrist injury' with' loss of hand', or comparing a temporary broken arm with the loss of the arm etc. Such comparisons are often made by judges Munkman points out that in America, Mr. Melvin M. Belli, an eminent lawyer, classified injuries into 11 categories as (1) Back ; (2) Trau.natic amputation of leg ; (3) Paralysis ; (4) Hand or arm off ; (5.) Death ; (6) Multiple fractures ; (7) Burns; (8) Personality change ; (9) Blindness, (10) Brain injury and (11) Occupation diseases. By 1967, awards (say) for blindness had risen to 930,000 dollars (Munkman pp. 181-182). Today after 20 years, these awards must have gone up further. The 'total wreck' category comprises of cases of complete incapacity for work and virtually no enjoyment of life, e.g., paralysis, severe brain injury causing insanity, multiple injuries leaving the victim a total cripple. The 'partial wreck' cases are also cases where the entire body is affected and not one set of limbs alone as in the third category. Cases of brain injuries resulting in a personality change and multiple injuries with grave disfigurement fall in this second category The third category does not present much difficulty for sub-classification The fourth category deals with minor injuries in a limb which be compared with major injuries in the same limb.
Past Inflation--Relevancy of Date of Accident:
32. The dates of accident resulting in similar injuries have great relevancy. For example, if a particular conventional sum of (say) Rs. 10,000/-was awarded towards the non-pecuniary damages of loss of expectation of life, loss of amenities and pain and suffering--all put together--in a case of amputation of a leg consequent to an accident in 1970, the award to be made for an identical loss today would have to be upgraded from the 1970 value to its value in 1987, having regard to the erosion of the value of the rupee. This can be done by comparing the cost of living index in 1970 with that in 1987.Charles worth on Negligence, 6th Edn. 1977, para 14, says, the 'conventional figures' must keep 'pace with the times in which we live'. He says that this can be well illustrated by considering the class of injury resulting (say) in the loss of sight in one eye and the conventional sum lay around £2000 about a quarter of a century ago but today in 1977 it will probably exceed £5000 or it ought to do. Kemp and Kemp on , Damages 1982, Chapter 7, para 7001, say: If a court is seeking to make a comparison with some earlier award (for non-pecuniary losses) and if by the date of the comparison, the currency in which the earlier award was made has declined by, say, 50 per cent, one must surely double the earlier award in order to make a valid comparison. The authors have compiled two table* (at para? 7007 and 7008), one showing the current level of general damages for 'pain and suffering' and' loss of amenities' in cases of severe injury and the other showing similar earlier years, and have compared whether courts are or are not keeping pace with inflation. The authors ask, why tort-feasor alone, as a class should be excused from paying the value-based price? In Walker v. John McLean and Sons Ltd. 1980 ACJ 429 (CA, England), the court found that while the value of the pound fell by 50% between 1957 and 1972 (over a period of 15 years), there was a steeper fall between 1973 to 1978 (within 5 years) when it again fell by 50% (vide Kemp and Kemp's Tables). 'Conventional'. figures, if they do not keep pace with inflation, might indeed become 'contemptible'. Kemp and Kemp point out that an award of E 16,000 in 1879 would be about £ 500,000 in 1982. After Walker's case (supra), courts in England are carefully adjusting awards for 'pain and suffering' and 'loss of amenities' to keep pace with inflation.
Delay in Commencing Trial and Inflation:
33. In cases where, between the date of the accident and the date of trial, there is considerable delay, the court will first fix the' conventional' figure suited to the date of accident and then revise it upwards so that such increase could be set off against the inflation during the period Long delays in accident claims are not only peculiar to our country but occur in other countries too therefore, non-pecuniary losses for pain and injury and loss of amenities awardable on date of accident would have to be revised upwards if awarded after a long lapse of time. As Prof. Fleming James Jr. has stated, 'If a long period has elapsed between the accident and the trial and a material change in living costs has occurred during that time', necessary adjustments have to be made. [Vol. 41 1956, Cornell Law Quarterly, p. 582 at 605).
Pleadings: Special and General Damages:
34. Pleadings are no less important in accident cases than the law. It is necessary to know what facts are to be stated in the pleadings. In recent times, It have found pleadings rather deficient in accident cases. I hope that counsel will benefit from what I have said in these three judgments.
35. When we deal with pleadings in accident cases, it is important to bear in mind the essential distinction between special and general damages. The former require a specific pleading and the defendant is to be put on notice of the details. The latter are presumed to flow from the injury and the defendant cannot claim any special notice. Loss of earnings and the expenses incurred upto date of trial are to be pleaded specifically as special damages. On the other hand, claims towards pain and suffering and loss of amenities (non-pecuniary losses) and also prospective loss of earnings and prospective expenses (pecuniary) fall under the category of general damages. [McGregor on Damages 1972 Edn., paras 1382 and 1416].
36. In British Transport Corporation v. Gourley 1955 AC 185, it was stated by Lord Goddard as follows:
In an action for personal injuries, the damages are always divided into two main parts. First, there is what is referred to as special damages which has to be specifically pleaded and proved. This consists of out of pocket expenses and loss of earnings incurred down to the date of trial, and so generally capable of substantially exact calculation. Secondly, there is general damages which the law implies and which is not specially pleaded. This includes compensation for pain and suffering and the like and if the injuries are such as to lead to continuing or permanent disability, compensation for loss of earning power.
(Emphasis supplied)
37. What is in the nature of general damages on date of accident continues to be so at the time the pleadings are drafted because what flows directly from the injury continues to be known to the opponent on both dates. But what is in the nature of a special damage not known to the opponent on date of accident may become general on date of pleading. The obligation to particularise earnings already lost and expenses already incurred arises, as pointed out in Perestrello v. United Paint Co. 1969 (I) WLR 570 (Ca), 'not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible' [McGregor on Damages 1972, para 1382].
38. Rule 533 of the A.P. Motor Vehicles Rules, 1964 contains an Explanation which defines 'special damages' and 'general damages.' The relevant portion reads:"Rule 533 XXX XXX XXX Explanation: For the purposes of the above sub-rule ;
(i) "Special Damages' is one which has to be specially pleaded and proved. It consists of out of pocket expenses and loss of earnings down to the date of trial and is generally capable of exact, substantial calculations; and
(ii) 'General Damages' is one which the law implies and which is not specially pleaded. It includes compensation for pain and suffering and the like and if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power.
Obviously, these words are bodily lifted from Lord Goddard's judgment in British Transport Corporation v. Gourley 1956 AC 185, above referred to. Shifting of Claims From One Head to Another--If Permissible:
39. It has now been held that though the claimants have estimated different sums of damages under various heads, it is open to the court to award sums which are higher than those claimed under particular beads of damages, so long as the court does not exceed the total amount claimed.
40. Such a principle was first laid by the Guiarat High Court in Bat Nanda v. Shivabhai Shankerbhai Patel 1966 ACJ 290 (Gujarat). That was a case of a death by murder in which J.B. Mehta and M.U. Shah, JJ.observed (para 47) that within the total sum of Rs. 20,000/- claimed, the court could adjust between the loss to the dependency and the loss to the estate. When a similar question arose in a claim for injuries in Babu Mansa v. Ahmedabad Municipal Corporation 1978 ACJ 485 (Gujarat), after referring to a claim of Rs. 1,000/-towards loss of income till date of filing claim petition, the court awarded Rs. 1,200/-. P.D. Desai, J. (as he then was) and M.K. Shah, J. observed:"However, as long as the total amount to be awarded does not exceed the total amount claimed, there should be no objection in awarding higher amount than that claimed under one particular head, if on the true assessment of the evidence led at the trial, the claimant is found entitled to the same.... So long as the award does not exceed the total amount claimed, there should be no objection in splitting it up under different heads and, even if a specific amount is claimed under a particular head, the Tribunal has the power to award an excess amount under that very head without amendment of the claim application provided the evidence justifies it."I am in entire agreement with the view expressed by the Gujarat High Court. Separate Estimation of Sub-Heads of Non-Pecuniary & Pecuniary Damages, if necessary.
41. So far as pecuniary damages are concerned they are how computed upto date of trial and from date of trial separately.
42. Again, pecuniary damages and non-pecuniary damages are to be assessed separately. This was made clear, as a principle in Pickett v. British Rail Engineering Co- 1980 ACJ 216 (HL, England).
43. There was some conflict of opinion regarding itemisation of the various components of non-pecuniary damages. In Fletcher's case [See on appeal Fletcher v. Autoear Transporters Ltd. 1969 ACJ 99 (CA, England)] the trial judge Cantley, J. considered each bead of general damages separately, namely, the past loss of the plaintiff upto date of trial, his future expenses due to his injuries, his future loss of earnings, and his pain and suffering and loss of amenities. He assessed a separate sum for each of these heads and added the four sums together to make his total award. He refused to cut down the total figure even if it should be large unless there was over-valuation of any of the items. Cantley, J. said:
If, having added up the various items for which he is entitled to be compensated, the total is dauntingly high, I agree I ought then to reconsider the matter, but only to see whether I have over-valued any of the items, not for the purpose of compressing or burying them in a smaller and more unobtrusive sum.
44. But, unfortunately, on appeal Lord Denning MR. and Diplock LJ. (Salmon LJ. dissenting) did not agree with this view fully, the former stating that the items are 'not separate heads' of compensation but are only aids at arriving fair and reasonable compensation as stated inWatsonv. Powles 1968 (1) QB 596. Salmon LJ. in his dissent said:"For the purpose of computing financial loss, it is, in my view, not only permissible but it is necessary to assess the value of each head of loss and to add up the sums thus ascertained in order to arrive at the true amount of the total financial loss."451 Kemp & Kemp, 1982, para 1021, have seriously criticised the view of the majority of the Court of Appeal and commended the views of Cantley, J. in the trial court and that of Salmon, LJ. in the Court of Appeal that the components of non-pecuniary damages should be computed separately and that they could be added up without any reduction.
46. It is refreshing to note that the practice in India appears to be the same as the one which commended itself to Cantley, J. and Salmon LJ. Each of the subheads of non-pecuniary damages is separately computed in our country and added up. I agree that this is the proper method provided we take care to see that there is no overlapping between the individual components such as loss of expectation of life, loss of amenities, pain and suffering etc. Non-Pecuniary Damages: No Reduction Because Pecuniary Damages Are High
47. Denning M R. in Smith v. Central Asbestos Co. 1972 (1) QB 244, has unfortunately taken a view that damages assessed for non-pecuniary damages for pain, suffering and loss of amenities can be reduced, if the quantum of pecuniary damages payable is high. This principle has not been accepted by the British Law Commission. [Law Commd. No. 56 para 199]. Kemp & Kemp have also not agreed with 'the view of Lord Denning.
Mitigation of Damages:
48. It is sometimes said that it is the duty of the victim to mitigate the damages by doing whatever is reasonable to keep down the loss as he can. It is perhaps more accurate to say that the plaintiff cannot recover damages for any aggravation or prolongation of his injuries which is due to his own wilful act or neglect. Such an act or neglect would be a novus actus inter-veniens which breaks the causal sequence. [See McKew v. Holland & Hannen & Cubitts (Scotland) Ltd. 1 69 (3) All ER 1621; The causal sequence may similarly be broken by any. unreasonable refusal to undergo a surgical operation. The Privy Council has held recently that the onus is on the plaintiff to show that his refusal was reasonable, in the light of medical advice [Setyana-yagam v. University of West Indies 1983 (1) All ER 824].
Exemplary or Vindictive Damages
49. Exemplary damages could be awarded in an action of tort where the defendant has not only committed a legal wrong but has also behaved in an outrageous and insulting manner. Aggravated damages take into effect the motives or conduct of the defendant. Rookes v. Barnard 1964 AC 1129. Having dealt with the principles, I shall come down to the computation.
Computation
50. The appellant was a purohit at Kakinada and neighboring villages. According to the claim petition he was earning Rs. 500/- p m. His family consists of himself, his wife, two young daughters and a son. The appellant was aged 25 years at the time of the accident on 4-4 1979 He underwent treatment at Kakinada General Hospital frorn 4-4 1979 till 16-5-1979. He was admitted in the Nizam's Orthopedic Hospital, Hyderabad for the period from 18-5-1979 to 25-5-1979. PW 6 who was the Surgeon at Kakinada. Hospital testifies to the claimant's loss of both the eyes and other personality changes. The head injury was 4 inch x 1/2 inch extending from forehead to the eye. His assistants conducted the surgery. PW 6 referred the appellant to Dr. Balaparameshwara Rao at Hyderabad (vide Exh. A-3) and the latter said nothing could be done in this case. PW 6 and PW 8 Surgeons who did the surgery say, the victim was unconscious when brought and an operation for the head injury was performed. The appellant lost both eyes. The trial took place in December, 1980 and the judgment was given on 3-2-1981.
51. PW 1 stated that. the hospital expenses were Rs. 5,000/-. The appellant was earning Rs. 500/-p.m. but has now become totally disabled and become of unsound mind, apart from losing-both eyes. The claimant is a purohit and knows the rituals for performing upanayanams, marriages etc. He was attending to functions in prominent houses including houses of Vysyas; PW 2 speaks to the same facts and says she spent Rs. 5,000/-for medical expenses from out of her savings from the postal savings bank. PW 4, a purohit and PW 5 (his wife) also spoke to the appellant's earnings. It may be that the appellant is not a vedic scholar but, there can be little doubt that he was a purohit engaged for performing upanayanams, marriages and vratams. The Tribunal estimated the incomes at Rs. 200/- per month and estimated the loss at Rs 25,000/-. It awarded Rs. 5,000/- for medical expenses. Having'regard to the amendment of the mistake in the grounds of appeal, (vide orders in CM.P. No. 8563 of 1987;, the claim now in the appeal is for Rs. 1 lakh.
(A) Non-Pecuniary Damages
52. The appellant lost one eye immediately and the other shortly thereafter. The head injury was 4 inch deep. He has now lost his mental capacities fully and behaves like a mad person. He underwent surgery on 4-4-1979 for the brain injury. He was in hospital for one month and 12 days at Kakinada and again for 15 days at Hyderabad.
Damages for Eyes Loss
53. So far as loss of one eye or both eyes is concerned, certain conventional figures of damages have been settled in England. Kemp & Kemp as well as Munkman refer to decided cases. Munkman, 1985 Edn., pp 190 19J refers to decided cases as follows:
(A) ENGLAND:
54. (a) Total blindness: Standard damages in 1984 is around £ 50,000 for blindness alone, (i) Mustari v. Post Office 1982 Times, 11 February, a man blinded, lost both sense and smell; £ 65,000; (ii) Singh's case 1982 CLY 820, a man, 36, blinded, disfigured, unable to learn Braille, pain in eyes: £ 55,000; (Hi) Miller's case 1983 CLY 1011, a, man, blind, losi of smell, taste, spleen removed, plate in mouth etc:£ 7,500 and opinion expressed that for total blindness alone £ 50,000 and above is awarded.
55. (b) Loss of one eye: The standard in England and Scotland in 1983-84 was £ 11,000. Higher awards are given if coupled with other injuries (i) Kelly's case 1982 CLY 82, boy, 9 years, one eye destroyed, education affected:£ 15,000; (ii) Lamb's case 1983 CLY 1014, boy, 15 years, loss of right eye: £ 11,000 etc. (B) INDIA:
56. One eye (according to chronology of date of accident):
(i) In the Gujarat High Court, in Bhupendra Kumar Kohli v. Oil & Natural Gas Commission, Sabarmati 1981 ACJ 385 (Gujarat), M.P. Thakkar, J. (as he then was) and Gheewala, J. awarded Rs. 25,000/-towards pain and suffering and loss of amenities of life for loss of one eye in an accident which took place on 12-2-1974. The injured man was aged 30 years. The pecuniary losses were, however, computed at a disability ratio of 40%. (ii) Again, in Ashish Jirajbhai v. Ashwinbhai Himatlal 1982 ACJ (Supp) 195 (Gujarat), a boy aged 7 years lost his right eye and memory was affected. He was paralysed on one side. In the High Court P.D. Desai, J. (as he then was) and R.C Mankad, J. awarded Rs. 55,000/- for pain and suffering and loss of amenities of life. The accident took place on 18-7-1975. Damages for Head Injury or Total Wreck Cases
57. According to Munkman, these are divided into two categories. Where there is brain damage and involve paralysis or personality change, they come under 'Total wreck' or 'Partial wreck' cases. Other cases of mere facial injuries or local injuries are less serious (p. 194):
(A) ENGLAND
58. (i) Odell's case 1983 CLY 1005: A man, 18, brain damage resulting in double vision with restricted eye movement, poor memory, slurred speech, headache, reduced sex vitality, depression: £ 10,000.
(ii) Barrett's case A man, 28 depressed skull fracture, epilepsy, 50% chance of recovery:£ 10,000.
(iii) Scars disfigurement range between E 1000 and £ 10,000 [See p. 215. Munkman].
(B) INDIA:
59. (a) Total wreck cases: (Considered according to chronology of date of accident).
(i) In D.T.C. v. Lalita 1983 ACJ 253 (Delhi), [on appeal from 1973 ACJ 79 (Delhi), decided by Avadh Behari Rohtagi and Leila Seth, JJ.] the accident occurred on 6-12 1961 to a young girl aged 8 years and she was permanently crippled due to fracture of right femur, right leg, right humerus, right scapula and became totally dependent on others. After an exhaustive discussion of the law, Rs. 50,000/-was awarded towards pain and suffering and loss of amenities of life.
(ii) In A.S. Rajara v. Joitaram Rawabhai'Patel 1982 ACJ (Supp) 1 (Gujarat), [P.D. Desai, J. (as he then was) and Majmudar, J.] the accident occurred on 7-8-1977, the claimant's abdomen was crushed, urethra reptured, there was fracture of hip joint and pelvis and skin grafting done. The person was aged 26 years. It was treated as a case of extra-ordinary damage, and, perhaps, the highest figure of Rs. 75,000/-was awarded towards pain and suffering and losi of amenities.
(iii) Again in National Insurance Co. Ltd. v. Ramanbhai Fulabhai Bhoi 1983 ACJ 779 (Gujarat) (R.C. Mankad and D.H. Shukla, JJ.) the accident took place on 10-9-1977 and a boy of 15 years got fractured his pelvis and ruptured urethra and the natural passage of urine was closed and a catheter was put for use throughout life. The court awarded Rs. 75,000/-towards pain and suffering and loss of amenities.
60. (b) Other serious head injuries: (including loss of memory or paralysis, slurred speech or loss of intelligence). The awards are given below.
61. I shall give the list of cases as per chronology of date of accident and consider only the damages awarded for pain, suffering and loss of amenities, for purposes of comparison. Date of accident Ruling For pain and suffering and loss of amenities.
--------------------------------------------------------------------------------
Date of accident Ruling For pain and suffering
and loss of amenities.
--------------------------------------------------------------------------------
(i) 5-7-1967 1977 ACJ 213 (P&H) Rs. 10,000/-
(ii) 14-1-1969 1982 ACJ 31 (Assam) Total Rs. 2.75 lakhs for
pecuniary and non-pecu-
niary damages.
(iii) 27-1-1969 1982 ACJ 129 (Karnataka) Rs. 30,000/-
(iv) 10-8-1972 1983 ACJ 525 (Allahabad) Rs. 15,000/- for pain and
suffering. Rs. 20,000/- for
loss of amenities. Rs.
5,000/- for loss of expec-
tation of life.
Rs. 15,000/- for loss of
education
Total Rs. 55,000/-
(v) 8-9-1972 1986 ACJ 55 (Bombay) Rs. 25,000/-
(vi) 2-4-1976 1983 ACJ 497 (P&H) Rs. 40,000/-
(vii) 12-1-1979 1984 ACJ 163 (P&H) Rs. 20,000/- for pain and
suffering
Rs. 25,000/- for loss of
amenities
Total Rs. 45,000/-
--------------------------------------------------------------------------------
62. In the light of the above figures of damages, the question is as to what should be awarded for a person who has lost both eyes and has also suffered severe brain damage resulting in loss of memory and intelligenee and who has become mentally unsound. There were also changes in personality. In my view, this is not a case of mere loss of eyes or of some limb but is, obviously, a total wreck case. I have shown that the Gujarat High Court has awarded Rs. 75,000/- in 'total wreck' cases for injuries which took place on 7-8-1977 and on 10-9-1977. The Delhi High Court awarded Rs. 50,000/-for the accident which occurred on 612-1961. These amounts are awarded only for non-pecuniary losses for pain and suffering, and loss of amenities or enjoyments of life. Coming to other types of serious 'head injuries', involving loss of memory or intelligence or paralysis or slurred speech, 1 have given a range of awards for accidents occurring from 1 67 to 1979.
63. According to the principles of law laid down earlier, the particular conventional figures adopted by courts for loss of particular limbs have to be upgraded basing upon inflation--by looking at the percentage increases in the Wholesale Price Index or the Consumer Price Index.
64. As I have come to the conclusion that this is a 'total wreck' case where a person lost both eyes, memory and has become mentally unsound, and as the accident took place on 4-4-1979, there being no discrimination between rich and poor for evaluating non-pecuniary losses vide Dip lock LJ. & Salmon LJ. in Fletcher's case 1969 ACJ 99 (CA, England) and there also being no difficulty in shifting claims under one head of damage to another--whether pecuniary or non-pecuniary or for any sub-head--as long as the total claim is not exceeded vide Babu Mansa's case 1978 ACJ 485 (Gujarat), there can be no difficulty in considering that in this case the claimant is entitled at least to Rs. 50,000/-towards pain and suffering, loss of amenities and loss of expectation of life, even assuming that the rates adopted in Gujarat are on the high side. It is true that these items have to be separately evaluated and added up as stated by Cantley, J. and also by Kemp & Kemp but as that method was not adopted in the lower court, I am not going through that exercise here. Of course, as I am taking into account the conventional figures awarded for accidents of 1979, it has not become necessary to upgrade them by taking into consideration the Wholesale Price Index or the Consumer Price Index over the period.
65 On a consideration of the values in all the types of cases referred to above --both eyes loss or total wreck case or serious brain damage--I award Rs. 50,000/- towards pain and suffering, loss of amenities of life and loss of expectation of life.
(B) Pecuniary Losses: Past and Future
66. Coming to the pecuniary damages, on a consideration of the evidence in the case, I am of the view that the loss of earnings of the claimant are liable to be computed at Rs. 350/- p m. The claimant was aged 25 years at the time of accident which occurred on 4- 4-1979 and trial took place in December, 1980. The past losses upto trial are to be computed for 20 months.
67. So far as future loss of earnings is concerned, the same has to be computed on the basis that the claimant's age is 27 years at the trial. The multiplier for a person aged 27, on the basis of the Table given in Bhagwandas's case 1987 ACJ 1052 CAP), will work out to 17.40 if the claimant should earn only upto 60 years. As this is a case of a person who could earn beyond 60 years, it will be slightly higher (about) 18.50.
68. Even if there is shortening of life span, the expected life before accident is to be taken into account for computing future losses. Of course, for the 'lost years' the multiplicand or annual loss of earnings should be reduced by the 'personal expenses' of the claimant in the 'lost years' as stated by me in Bhagwandas's case 1987 ACJ 1052 (AP), following Pickett v. British Rail Engineering Co 1980 ACJ 261 (HL, England). But, there is no positive medical evidence as to the extent of shortening of the life due to the accident. As the claim of the appellant is limited to Rs. 1 lakh and as the present computation is resulting in a figure far exceeding Rs 1 lakh, I am not calculating the reduced damages for the 'lost years' by deducting the personal expenses' for 'lost years'.
69. Admittedly, the claimant requires an attendant to look after him throughout the rest of his life. Even if his wife looks after him, the extra services have to be assessed and paid for--for the past upto the date of trial and again for the future, putting this at least at the lowest at Rs. 100/- p.m.
70. In the result, the past losses upto trial will be Rs. 350/-p.m. + Rs. 100/- p.m.=Rs. 450/- p.m. for 20 months. Future losses for a person aged 27 at the trial, and for whom no question of retirement at 60 years arises, the multiplier will be slightly higher than for a person retiring at 60 years and is taken at 18 50 to be applied to Rs. 350/- p.m. + Rs. 100/-p.m: Rs. 450/- p.m. [See Table given in Bhagwandas's case 1987 ACJ 1052 (AP)].
(i) Past pecuniary losses: Rs. 450 x 20=Rs. 9,000/- (upto date of trial),
(ii) Future pecuniary losses: Rs. 450 x 12 x 18.50=Rs. 99,900/-(after trial upto rest of life).
Pecuniary losses (Rs. 9,000/-+ Rs. 99,900/-) Rs. 1,08,900/- Non-pecuniary losses: Rs. 50,000/- Pecuniary losses: Rs. 1,08,900/- Total: Rs. 1,58,900/-
71. At the claim of the appellant is only for Rs. 1 lakh in this appeal, the award will be only Rs. 1 lakh. As decided by the Supreme Court in Chameli Wati v. Delhi Municipal Corporation 1985 ACJ 645 (SC), this sum will carry interest at 12% p.a. from the date of petition. The appeal is allowed, but in the circumstances, without costs.
C.M.P. No. 8563 of 1987.
72. This is a petition for amendment of the memorandum of grounds of appeal. The court below dismissed the claim petition on the ground that the negligence of the 1st respondent is not proved. Alternatively, it gave a finding that in case damages are to be assessed they are to be assessed at Rs. 25,000/- towards loss of earning. An award of Rs. 5,000/-towards medical expenses was also made.
73. After the grounds of appeal were typed initially claiming one lakh of rupees the learned Counsel for the appellant by mistake appears to have thought that the court below had passed an award for Rs. 25,000/-.He accordingly struck out the valuation in the memorandum and deducted Rs. 25,000/- and limited the claim to Rs. 75,000/-.
74. The learned Counsel for the appellant has realised that this was a clear mistake inasmuch as the lower court did not pass any decree even for Rs. 25,000/-. As it was the mistake of the counsel he filed a petition for necessary amendment. No counter has been filed. On hearing the counsel for petitioner and the learned Government Pleader I am of the view that this petition should be allowed and the memorandum of appeal must be appropriately allowed to be amended. I am satisfied that there was a clear mistake on the part of the counsel 'For bis mistake his client should not suffer.
75. The petition is accordingly allowed. No costs.