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Judgment
Venkatadri, J.—These two appeals arise out of an order passed by the Motor Accidents Claims Tribunal, (District Judge), Tiruchirapalli,
awarding compensation in a sum of Rs. 5000, to the appellant in C. M. A. 28 of 1963 who was involved in an accident caused by the lorry
belonging to the first respondent, G. Veerappan, and which has been insured with the second respondent, Madras Motor and General Insurance
Co., Ltd, Madras. Appellant, minor Ayisha Begum, aged about 5 1/2 years, is the daughter of P. K. Mohamed Yusuf, residing at No. 105 West
Bouleward Road, Tiruchirapalli. On 16th August 1961 at about p.m. while she was returning from her school, she was hit and injured by the lorry
MDY 3439. The actual incident was witnessed by P. W. 7, Subba Rao, who is keeping a betel-nut shop opposite to the Gosha Hospital, where
the accident occurred. The evidence of P. W. 7 is that, when the child was proceeding to her house from the school keeping to the left side of the
road, the lorry MDY 3439 came from south to north very fast without sounding the horn and hit the child by throwing her down. His evidence is
that there was no other vehicle on the road at the time of the occurrence and that the width of the road is more than 30 ft. According to him, the
driver of the lorry did not apply the brakes to stop the lorry and went away even after knocking down the girl and had to be stopped by one
Karunakaran. Soon after the accident, P. W. 1, the father of the girl, was informed of the accident by P. W. 6, a clerk in the Tiruchi Vaisya Bank.
P. W. 1 took the girl and admitted her in the Headquarters Hospital, Tiruchirapalli. P. W. 5 Dr. Bashrudeen, examined her, and, suspecting
fracture, directed X-ray photos of the thigh and hip joint to be taken. P. W. 5, Dr. Bashrudeen has stated that there was dislocation of pelvic bone
as showed in the X-ray photos, Exs. A. 3 and A. 4. He further said that hit by a vehicle like the lorry was likely to cause the fracture. As the stay in
the hospital did not do her any good, P. W. 1, took her to P. W. 2, Dr. V. K. Ranganathan, a Medical Practitioner of 18 years, standing, who
found fracture, dislocation of the right sacroiliac joint and dislocation of the symphysis pubis. He advised that the child should be shown to a
Orthopaedic Specialist. P. W. 1, therefore, brought the child to Madras and showed her to one Dr. Natarajan, an Orthopaedic specialist. The
doctor advised a course of treatment for the child. P. W. 1''s evidence is that she is unable to walk or run freely and is crippled. Thus it has been
established that the child was involved in a lorry accident and sustained an injury. The Tribunal (District Judge) found the child limping and having a
big belt around her hip. The Tribunal found that the injury was the result of an accident brought about by the rash and negligent driving of the lorry
of the first respondent.
Regarding the quantum of compensation, the appellant had claimed Rs. 15000. After considering the status and the loss of enjoyment of normal
life of the child, the learned Judge has awarded Rs. 5000 as compensation.
Against this order of the Motor Accidents Claims Tribunal, minor Ayesha Begum has filed C. M. A. 28 of 1963, for the enhancement of the
amount of compensation. Madras Motor and General Insurance Co. Ltd., the second respondent, in the Lower Court, has filed C. M. A. 117 of
1963, contending that the amount awarded is arbitrary and based on a rough and ready estimate.
Now, Birkett L. J. in Bird v. Cocking and Sons Ltd (1951) 2 T.L.R. 1260, has observed :
The assessment of damages in cases of personal injuries is, perhaps, one of the most difficult tasks which a Judge has to perform, The task is so
difficult because the elements which must be considered in forming the assessment in any given case vary so indefinitely from other cases that there
can be no fixed and unalterable standard for assessing the amounts for those particular elements. Although there is no fixed and unalterable
standard, the Courts have been making these assessments over many years, and I think that they do form some guide to the kind of figure which is
appropriate to the facts of any particular case, it being for the Judge, or for the appellate Court if they are reviewing the matter, to consider the
special facts in each case. For I agree that one ease cannot really be compared with another. The only thing that can be done is to show how other
cases may be a guide, and when therefore, a particular matter comes for review one of the questions is, how does this accord with the general run
of assessments made over the years in comparable cases ?
Again, as the Earl of Halsbury L. C. said in the Mediana 1900 A. C. 113 at 116:
You very often cannot even lay down any principle upon which you can give damages Take the most familiar and ordinary case; how is anybody
to measure pain and suffering in moneys counted ? Nobody can suggest that you can by any arithmetical calculation establish what is the exact sum
of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident...... But
nevertheless the law recognises that as a topic upon which damages may be given.
Further, Courts have to take into consideration the various kinds of damages, when they decide to give compensation to the injured person. An
injured person is entitled to recover damages in respect of various heads, for example, reasonable expenses including expenses incurred for
medical treatment, nursing, medical appliances and other incidental expenses. The injured person is further entitled to damages for loss of earnings,
if, as a result of his injury, he has lost his earning capacity, He is also entitled to general damages, in respect of pain and suffering which he has
undergone upto the date of trial and which he is likely to undergo thereafter. In the words of Birkett L. J. in Monlay v. Rugby Portland Cement
Cold 1951 C A. No 286.
There is a head of damage which is some-times called the loss of amenities; the man made blind by the accident will no longer be able to see the
familiar thing he has seen all his life; the man who has had both legs removed and will never again go upon his walking excursions-things of that
kind-loss of amenities.
Damages are awarded in respect of the happiness which a person might expect to have enjoyed in the years of life of which he has been
deprived, under the head of loss of expectation of life.
In the instant case, the claimant has not given particulars regarding the claim. There are no details for the medical expenses incurred. The
appellant has claimed compensation in a sum of Rs. 15000, on account of general damages for the permanent injury caused to her. The doctor''s
evidence is that she is not likely to be normal even if she grows up. The injury to the pelvis is likely to lead to permanent disability at the time of
delivery. X-ray photos showed the dislocation of the pelvic bone, as the fracture was directly connected with the external injury on the left thigh.
The medical evidence has clearly established that, as a result of the accident, the child has sub-stained a permanent injury which would greatly
affect her future happiness as a married woman. As a result of the injury, she has undergone considerable pain and suffering. The condition of her
limb has prevented free movement of her legs for all time to come. Her bones are growing and she is likely to have pain and suffering whenever she
uses her limbs. The chances of improvement are slender and for all practical purposes the injury is likely to be permanent. She may have no
chances of playing her part in the world of sports. This is a case where the child needs constant care day and night from persons of some nursing
competence. Her mother''s life has been completely submerged in the care of her daughter. It is doubtful how long she can endure physically and
mentally to keep pace with her present ministrations. There is no reason why the child should not live for many years, provided, she has regular
check up by duly qualified doctors. Then she will live for many many years. When the child attains the age of discretion, she would be conscious of
the disfigurement namely her lameness, apart from the pain and suffering. On account of this disfigurement, which has been aptly described as
hideous "" by Kemp in his book on the Quantum of Damages, Vol. I, page 289, there will be some dreadful psychological reactions. Her future is
dreadful, fearful and bleak. Her marriage prospects are uncertain. Even if she is married, her marital life would be a problem both for herself and
her husband. The doctor''s evidence is that the will have difficulty during child-birth. It is having this harried picture of this unfortunate child, the
Court has to award compensation, and not mere damages and this compensation can be only in terms of money. But money cannot renew the
physical frame that has been shattered and battered. All that the Judge and Court can do is to award sums which must be regarded as giving
reasonable compensation, under the circumstances a fair compensation. In Warren v. King (1963) 3 All E. R. 521 an infant plaintiff was run over
by a wheel of a lorry in the circumstances in which the defendant-company was liable for negligence of the driver. The accident caused permanent
paralysis in both her legs and arms. When the jury awarded the infant plaintiff Rs. 50,000 the defendants appealed. Harman, L.J. observed :
It seems to me that the first element in assessing such compensation is not to add up items such as loss of pleasures, of earnings, of marriage
prospects, of children and so on, but to consider the matter from other side, what can be done to alleviate the disaster to the victim, what will it
cost to enable her to live as tolerably as may be in the circumstances ? This will involve, first an estimate of the infant plaintiff''s expectation of life,
and next an estimate of the cost of such help as she needs
But in Morey v. Woodfield (1963) 3 A. E. R. 533 which was an appeal by the defendant from a judgment entered on the verdict of a jury in an
action by the infant plaintiff, a girl under the age of twelve years, for personal injuries suffered in a motor car collision due to the negligence of the
defendant, and where Rs. 50,000 was awarded as damages. Holroyd Pearce, L.J. observed :
The infant plaintiff is quite helpless and entirely dependent on the constant ministration of others. Her life is one of constant discomfort and constant
expense....... she lost almost all the amenities
The amount of the verdict is quite exceptionally high. But so too are her loss and her expenses. I do not find it possible to say..... that, in assessing
damages, the jury have failed to fulfil their judicial duty, or that Rs. 50,000 is out of all proportion to the damage suffered.
Life is of course full of pains and pleasures and joys and sorrows. 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. In the case of a living person seeking compensation for
disabling injuries, damages are intended to be a measure of the difference between the happiness which he would have enjoyed had he not been
injured of which an estimate has to be made which is objective in the sense that it has to be made by the Court, and the pain and suffering and the
loss of amenities. In R. West and Son Ltd. v. Shephard (1963) 2 A.E.R. 625 at 631 their Lordships observe :
......the damages which are to be awarded for a tort are those which ''so far as money can compensate, will give the injured party reparation for the
wrongful act........ The words ""so far as money can compensate"" point to the impossibility of equating money with human suffering or personal
deprivations. A money award can be calculated so as to make a good financial loss. Money may be awarded so that something tangible may be
procured to replace something else of like nature which has been destroyed or lost. But money cannot renew a physical frame that has been
battered and shattered. All that Judges and Courts can do is to award sums which must be regarded as giving reasonable compensation.
Lord Wright in Davies v. Powell Duffryn Association Collieries 1942 A. C. 601 said that there was no question of sentimental damages for
pain and suffering and it was hard matter of pounds and shillings and subject to the element of future probabilities. He also said that the assessment
of damages was more like an exercise of discretion than an ordinary act or decision.
The principles on which an appellate Court will interfere with an award of damages made by a Judge are perhaps best stated in a well known
passage from the judgment of Greer LJ. in Fllnt v. LoveIl [1935] 1 K.B. 354 at 360.
In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be
convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to
make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.
To the same effect is Lord Wright in Davies v. Powell Duffryn Associated Collierites Ltd. 1942 A. C. 601
An appellate Court is always reluctant to interfere with a finding of the trial Judge on any question of fact, but it is particularly reluctant to interfere
with a finding on damages which differs from an ordinary finding of fact in that it is generally much more a matter of speculation and estimate. No
doubt, this statement is truer in respect of some cases than of others. The damages in some cases may be objective and depend on definite facts
and established rules of law, as, for instance, in general damages for breach of contract for the sale of goods...At the other end of the scale would
come damages for pain and suffering on wrongs such as slander. These latter cases are almost entirely matter of impression and of common sense,
are only subject to review in very special cases.............. In effect the Court, before it intervenes with an award of damages, should be satisfied that
the Judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous
estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure
attacked if the appellate Court is to interfere, whether on the ground of excess or insufficiency.
In the words of Birkett L. J. in Rose v. Willey 1951 C.A. No. 221.
.......the question for this Court (appellate Court) is whether this figure was so wrong, in the colloquial phrase, so hopelessly wrong, that it was the
duty of the Court to interfere with it.
In McCarthy v. Coldair 1951 C. A. 271. Denning L J said:
I think Mr. Everett put the test graphically and rightly when he said that this Court would interfere if it said to itself ''Good gracious me-as high as
that.
The same Lord made a very similar remark in Taylor v. Mayor, Aldermen and Burgesses of Southampton 1952 C.A. No. 89.
This Court does not interfere with an award by a Judge who tries a case, unless, looking at it, it is out of all proportion to the figure which this
Court considers the proper award. When I heard the facts of this case, I said to myself: Good gracious me-as low as that for these injuries.
After traversing the various decisions and after going through the facts and circumstances of this case, and giving the best consideration, I can
to it, it seems to me that the sum of Rs. 5000 is too low.
Both principle and common sense require that the Courts, when they assess an award of money, which is to compensate a person for the
damages caused to him, by his injuries, should take into account large and comparatively permanent changes in the real value i.e., in the purchasing
power of money. In Sands v. Deyan AIR 1945 S. C. 381. Lord Normand said :
Since we must perforce measure the damage in money, we must, I think, take account of large and relatively permanent variations in the value of
money.
In the same case, Lord Moncrieff said :
As regards what falls to be paid in money the Court must take note of the changes in the value of money.
Thus, taking in to account the purchasing power of the rupee, I think that the sum of Rs. 5000 awarded is too meagre, too low and too small.
Taking into account the social status of the family of the injured child, the fact that the whole life of injured child has been lighted on account of this
accident, and the lifelong misery which the injured child would have to undergo, I consider that the compensation of Rs. 15000 prayed for is
neither too low nor too high, and I award the same as compensation.
C.M.A. 28 of 1963 is allowed. There will be no order as to costs.
In C. M. A. 117 of 1963, the Madras Motor and General Insurance Co. Ltd. has alleged that the award of Rs. 5000 is arbitrary and based on
a rough and ready estimate, that the conviction of the driver of the lorry in the Criminal Court should not be taken into consideration as the basis
for fixing the liability to pay compensation and that the Tribunal has failed to note, in observing that the liability of the Insurance Company is
unlimited, that under the terms and conditions of the Insurance Policy as well as under the Motor Vehicles Act, the liability is limited to a maximum
of Rs. 20,000. The owner of the lorry has not filed any appeal. In Big Insurance Co. v. Itbar Singh AIR 1959 S.C. 189, the policies that were
effected were in terms of the Motor Vehicles Act and the certificate of insurance mentioned in S. 96 had been duly issued. Sub-S. (1) makes an
insurer liable on the judgment obtained by the injured person against the accused. Sub-S. (2) provides that no sum shall be payable by the insurer
under Sub-S. (1) unless he has been given notice of the proceedings resulting in that judgment, and that an insurer who has been given such a
notice shall be entitled to be made a party to the action and to defend it on the grounds enumerated. There, it was contended by the Insurance
Company that when an insurer became a party to an action, he was entitled to defend it on all grounds available at law including the grounds on
which the assured himself could have relied for his defence. Their Lordships of the Supreme Court repelled the contention and observed :
To start with it is necessary to remember that apart from the statute an insurer has no right to be made a party to the action by the injured person
against the insured causing the injury.... The right therefore is created by statute and its content necessarily depends on the provisions of the
statute.......
Now the language of Sub-S. (2) seems to us to be perfectly plain and to admit of no doubt or confusion.......... It would follow that an insurer is
entitled to defend on any of the grounds enumerated and no others. If it were not so, then of course, no grounds need have been enumerated.
When the grounds of defence have been specified, they cannot be added to. To do that would be adding words to the statute.
The Insurance Company cannot question the quantum of damages, on the principles laid down by the Supreme Court. Therefore. C. M. A. 117 of
1963 has to be and is dismissed. There will be no order as to costs.