Kerala High Court
P.G. Hari, Minor By His Next Friend vs Director General, Indian Council Of ... on 13 November, 1986
Equivalent citations: I(1987)ACC228
Author: K S. Paripoornan
Bench: K S. Paripoornan
JUDGMENT T.L. Viswanatha Iyer, J.
1. These are two appeals against the judgment and the decree in O.S. No. 33 of 1976 on the file of the Subordinate Judge, Kasaragad. A.S. No. 14 of 1980 is by the plaintiff and A.S. No. 18 of 1980 is by the defendants. We shall refer to the parties in accordance with their array in the suit.
2. The plaintiff was a minor aged 5 years at the time of the suit. He filed the suit for realisation of a sum of Rs. 60,000/- by way of damages and expenses incurred by him on account of a bus accident. The bus KLC 6218 stood registered in the name of the second defendant and its ownership vested in the first defendant. The 3rd defendant was the driver of the bus and the 4th defendant was the Insurance Company with whom the bus had been insured for third party risk and covering the vehicle against all accidents. The accident took place on 16-7-1974. According to the plaintiff, the 3rd defendant was driving the vehicle in a rash and negligent manner. The plaintiff who was standing on the eastern edge of the road, which runs north-south, was knocked down as a result of which he fell down and the tyres of the bus overran his body crushing him in the process. The plaintiff sustained injuries, external and internal, for which he had to be treated for long in hospital. He had to undergo operations. But he was not completely cured. It was disclosed that there was a rupture of the urethra and complications arose in the matter of urinal functions. Apart from this serious injury, which has caused handicap and hardship to the plaintiff, he had also suffered mental shock, pain and bodily injury. Even now the plaintiff is not able to carry on a normal life. He has been crippled for life and has to be under constant treatment. It is in these circumstances that the suit was laid for recovery of Rs. 60,000/- as damages.
3. Defendants filed separate written statements contesting the claim of various grounds, some of which were absolutely frivolous and were not pressed at the time of the trial. These include pleas like the suit being barred by limitation, that the court had no jurisdiction and that the suit was bad for want of notice under Section 80 of the CPC. The defendants had also denied the maintainability of the claim on other grounds. They denied the various allegations in the plaint and particularly denied that the accident was caused due to the rash and negligent driving by the 3rd defendant. The factum of injuries to the plaintiff and various items of expenditure alleged to have been incurred by him were also denied. The defendants broadly contended that they were not bound to pay the whole or any portion of the claim made by the plaintiff for damages.
4. The lower court dealt with the matter at great length. The entire evidence was discussed. The court came to the conclusion that the incident alleged by the plaintiff was true. The lower court also found that the defendants are liable for the suit claim. The court then went into the question whether the claim for Rs. 60,000/- under various heads was justified. This matter was also gone into in the light of the decisions of the various courts. Ultimately the court found that the plaintiff could be expected to earn Rs. 150/- per month, and calculated at this rate for 30 years, he was entitled to damage of Rs. 54,000/- for loss of anticipated earnings. Since the amount was being paid in lump in advance the court fixed the damages payable under this head at Rs. 40,000/-. The court also allowed Rs. 7,088-44 as expenses for treatment, Rs. 5,000/- for mental shock, strain and physical discomfort, Rs. 5.C00/- for sufferings due to pain and Rs. 10,000/- for loss of pleasure and happiness in life. The total compensation thus awarded was Rs. 67,088-44, out of which the court deducted Rs. 2,100/- received from the second defendant by way of medical reimbursement as evidenced by Ext. S6 file of the second defendant. A decree was thus passed for the said amount with costs. It may be noted that while the claim was for Rs, 60,000/- the award was of Rs. 67,088-44 less Rs. 2,100/- received from the second defendant. The court however, did not award any future interest on this amount. We find that there is not even an advertence to this aspect.
5. As stated earlier, the parties have come up in appeal. The defendants Appeal A.S. No. 18 of 1980 is directed against the entire decree in toto including costs, except the sum of Rs. 2,100/- paid by the second defendant. The plaintiff, in this appeal claimed a further amount of Rs. 42,152-70 under various heads including Rs. 30,000/- for estimated expenses for future medical treatment necessary to sustain life upto the age of 65 years and also a further amount of Rs. 10,000/- as loss of anticipated earnings. It may be noted that the lower court awarded Rs. 40,000/- under this head while the plaintiff now claims in the appeal a further amount of Rs. 10,000/-.
6. The matters were heard together. In the light of the voluminous evidence in the case, counsel for the defendants could not seriously challenge the findings of the lower court in regard to the factum of the occurrence of the incident or about the liability of the defendants to compensate the plaintiff in relation to the accident. Regarding the damages awarded by the lower court also counsel could not point out to us any serious infirmity in relation to the heads of the compensation awarded or the quantum thereof. In these circumstances we do not find it necessary to discuss in detail about the occurrence or about the liability for damages or the quantum thereof. We confirm the findings of the lower court in regard to these matters
7. The point seriously urged by counsel for the defendants was that the lower court had gone wrong in awarding compensation in excess of that claimed in the plaint While the claim in the plaint was only for Rs. 60,000/-under various heads, the award aggregated Rs. 67,088-441 ess an amount of Rs. 2,100/- paid by the second defendant. Counsel would content that since the plaintiff had himself limited the claim to Rs. 60,000/- the court could not by itself and without any amendment of the plaint award a larger sum.
8. Counsel for the plaintiff would however, argu that the lower court has acted rightly in awarding an amount larger than that sought for in the plaint. In fact plaintiff has filed the appeal A.S. No. 14 of 1980 claiming a further amount of Rs. 42,152-70. In justification of this claim plaintiff's counsel placed reliance on the decision of this court in Veeran v. Krishna-moorthy particularly the following observations:
Even in valuing the claim, it is open to the plaintiff to put an estimate of the general damages paying court fee thereon and offering to pay before decree is passed additional court fee on the fixation of damages due to him.
9. We are not able to accept the plaintiff's contention. Plaintiff has, for his own reasons, limited the claim to an amount of Rs. 60,000/-. It is not open to the court to grant a larger amount than that claimed in the plaint. It is not for the court to go into a roving enquiry as to what could be the just amount of compensation and award more than what is claimed. It is for the plaintiff to estimate the amount that he wants to recover from the defendants and pay the court fee thereon. It is that claim that the defendants are also called upon to meet. In a suit of this nature, it is necessary for the plaintiff to be precise about the amount that he wants to recover. It is true that he can only estimate the amount of general damages. But then it is open to him to ament the plaint, if at any point of time he seeks to enlarge his claim. We do not read the observation of this court extracted above to give a carte blanche to the court to award amounts in excess of what has been prayed for in the plaint. In fact this court itself only proceeded on the basis that the plaintiff should pay the court fee on any larger amount that he desires to get before the decree is passed. All that this court meant was that the plaintiff need not necessarly to be painned down to the amount sought in the original plaint, but that he may reserve to himself liberty to make a larger claim before the decree is passed if he is able to sustain such a claim. We owed the decision in Veerah's case only in this way and not as enabling the court to pass a decree for amounts larger than those claimed in the plaint by itself without even an amendment of the plaint.
10. In this view of the matter the award of Rs. 67,088-44 as against the claim of Rs. 60,000/- in the plaint is unjustified. The plaintiff's appeal A.S. No. 14 of 1980 claiming further amounts by way of damage, therefore, must necessarily fail. However, and having regard to the facts of the case we do not wist to interfere even in the defendant's appeal. The accident took place on 16-7-1974. The decree of the lower court was on 14-12-1978. The plaintiff has been allowed to withdraw only the cost portion of the decree unconditionally. Over twelve years have passed by since the date of the accident. The value of the rupee has considerably come down. over these years. The plaintiff has also not been granted any future interest on the amount decreed though he was ordinarily entitled to it. We, therefore, feel that the interests of justice in this case do not require us to interfere with the decree passed by the lower court.
11. The plaintiff has a further case that the amount of Rs. 2,100/-which was directed to be deducted out of the decree amount represented amounts paid for treatment subsequence to the institution of the suit and therefore not deductible from the plaint claim as it did not form part of the suit claim. On going through Ext. X6 file we find that this contention is justified. The amount of Rs. 2,100/- was not therefore, liable to be deducted from out of the decree amount.
12. The appeals are therefore, disposed of with the modification that the decree passed by the lower court will stand confirmed. But that there will be no deduction of Rs. 2,100/- from out of the amount of Rs. 67,088-44 decreed as directed by the lower court. The parties will bear their respective costs in the appeals.