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Judgment
R.J. Shah, J.
[Paras 1-22:--****]
The question that now arises is as to what could be awarded to the claimant on the count of pain, shock suffering and loss of amenities and enjoyment of life, considering that in addition to his aforesaid functional disability found by Dr. Nagpal he has also a permanent disablement flowing from his brain injury as stated hereinabove. In this connection, no decision either of the Supreme Court or that of any other High Court of our country has been brought to our notice wherein a similar question had received attention. In the absence of the same, we will need to look into whether similar cases have been dealt with by English Courts. A scrutiny in this connection has shown that such questions have been dealt with by English Couris as per the following tabular statement:
Table showing relevant English awards covering the head or pain, shock, and suffering and loss of amenities and enjoyment of life in the cases of injured persons who suffer from epilepsy as well as some other permanent disablements.
Sl. No.
Year of assessment
Age of victim at the date of accident
Awarded amount
Details regarding nature of injuries suffered
Remarks & Reference
1
2
3
4
5
6
All the cases from KEMP & KEMP "The Quantum of Damages" Vol. 2 Publication data Aug. 31, 1979
1.
1966
Exact age not stated
� 8,000
Young man, received head injury - after the injury headaches and two major blackouts - sedative drugs stopped the major blackouts and reduced the headaches - forgetful and also experiencing nonexistent unpleasant smells - 50/50 chance of major epilepsy developing - Trial Judge''s award not inter-fered with by the Coun of Appeal
Hawkins v new Mendip Engineer-ing Ltd. 3�312 page 3311
2.
1986
44
� 4.000
Male� Maintenance fitter� Fractured skull resulting In tendency to epilepsy - In hospital 3 weeks and off work about another month - 14 months later suffered major epileptic fit, later followed by another fit - If went off drags would cub risk of further attacks �
Elderfleld v. Grit Abaters Ltd. 3�402 Page 3401
3.
1968
28 or 24
� 13.000 including agreed specialdamages of � 1,000
Male, fork-lift truck driver - head injuries to both knees� either 2 or 4 years after the accident he began to suffer from major epileptic fits daring sleep - continued ever since bnt with less frequency - per. manent pain in both knew �limitation of movement especially the right knee� held fit to do light work
Booth V. O'' Hallorn 8-911 page 3311
4.
1969
21
� 6,000
Unmarried woman - bank clerk� sustained bead injuries� 6 days in hospital �Not long afterwatds she suffered a major epileptic attack of the graud mal type which involved convulsions - followed by several lesser attacks - persistent headachtes� fits regarded as petit mal and not grand mal - Court of Appeal held, trial judge''s award was clearly within the bracket
Jones v. Griffit-3�314 page 8318
5.
1979
Enact age not stated
� 2,500
Healthy young woman - hit tier forehead on the dashboard of a car Evolved iii a motor accident - Unconscious for a short time immediately, afterwards - Developed headaches and dizziness - 5 months after the accident became subject to minor seizures - Conflicting medical evidence�epilepsy not established on the balance 01 probabilities -possibility of further seizures - general damages awarded
Nokes v. Davies 5�318 page 3314
6.
1972
31
� 5,250 agreed special damages of �988
Male � Carpenter - fractured skull with associated bilateral brain damage fractured jaw - developed post - traumatic epilepsy - no epileptic fits since about 7 months after accident - in early stages had two major fits - so long as continued with drues was im-likely to have further fits for substantial award, but not On scale of those cases involving epilepsy which was not likely to be lulty controllable in future
Crawford v. Blofeld 3�401 page 3401
The aforesaid table shows that epilepsy is regarded as a serious type of infirmity. Even where medical evidence was conflicting and epilepsy had not been established on probabilities, �2,500 have been awarded considering the possibility of future seizures. As per the table, the range of damages is from �2,500 to �11,000 dependant upon the gravity and the frequency of attacks and the circumstances of the case. Age is also a relevant and material consideration. The table further reveals that when accompanied by another permanent disablement damages are awarded on a higher scale. "Petit mal" and "grand mal" are types of epileptic attacks which by and large have general recognition.
As observed hereinabove, great importance has been attached to this aspect of the matter and more than twice the conventional figure for the loss of a limb and nearly 4 times asmuch as the conventional figure for the loss of an eye has been awarded in such cases. A note of caution has also been struck that the ceiling figure could not be put above � 10,000 or � 11,000 and if one puts the ceiling figure much above the said figure one gets into the realm of awards for paraplegic cases; which are clearly much more serious than the one under consideration. We feel that there is no good rea- son to depart from the aforesaid principles. Further, as observed in Pravinchandra Jivraj, Mehta v. Lalbhai Melabhai Vasava (1982 GLH 940) by my brother Majmudar, J. speaking for the Division Bench consisting of P. D. Desai and S. B. Majmudar, JJ., it is true "that the awards of English Courts cannot automatically be followed so far as this country is concerned, as it has an entirely different type of economy, mode of living of its people and standard of life. Still those English decisions give a general indication about the extent of damages which can be awarded with reference to serious brain injury coupled with the lingering physical effects left by them on the victims. The re''sume'' of the English decisions shows that in England, damages are awarded on a very high and liberal scale in cases of loss of sense or faculty such as loss of memory and other side-effects resulting from such brain injury. Conversion from one currency into another may not be strictly relevant in the context of the point under consideration, having regard to the varying conditions in two countries. It might still be mentioned, however, that in terms of the rupee currency, an award in the sum of �6,100/- for loss of brain injury suffered by the injured claimant which had resulted in the loss of memory etc. would work up to Rs. 1,09,800/- taking the exchange rate of � 1 = Rs. 18 which is the equation around which the exchange rate usually fluctuates". Similar observations are to be found in the case of A. S. Rajara alias Raja Vamshyam v. Joitaram Rawabhai Patel (1982 23 GLR 29). My brother Majmudar, J. speaking for the Division Bench consisting of P. D. Desai and S. B. Majmudar, JJ. observed in A. S. Rajara''s case (supra): "We must also point out that in cases like the present, where the victim has suffered multiple injuries of very severe nature and who has been reduced to a miserable state of life, assessment of damages under the present head has to be made on an overall estimate of the scale of pain, suffering and loss of amenities and enjoyment of life on account of the multiple injuries. In other words, aa integrated view of the totality of the after-effects of the manifold injuries must be taken so as to assess and award a lump-sum compensation for the pain and suffering, past, present and future, and for the lost pleasures and enjoyment of life. It would not be proper to individually assess damages under this head qua each injury and then to aggregate the same and make a cumulative award under this head. There is a great risk of duplication in segregating and separately assessing compensation for the pain and suffering and loss of amenities and enjoyment flowing out of each injury.
Only a total or overall view can insulate against overlapping. It would be permissible, indeed necessary, in some cases, however to view each injury and to assess the consequential deprivation and then to estimate the totality of suffering, pain and lost pleasures and comforts of life to arrive at a just compensation". It does not seem that a better principle could be propounded in this connection. Taking all the aforesaid into consideration and considering the nature and extent of the permanent disablement suffered by the claimant together with the fact as admitted by the claimant himself that the frequency of such epileptic attacks has lessened, it would seem to us that the just compensation on the aforesaid count should be in the sum of Rs. 35,000/- and not Rupees 25,000/- as awarded by the Tribunal The claimant would therefore be entitled to an additional compensation in the sum of Rs. 10,000/- on this count.
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