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Judgment
Natesan, J.—These connected appeals arise out of proceedings before the Motor Accidents Claims Tribunal, Ramanathapuram at Madurai.
Two girls, Ramalakshmi and Usha, sisters aged 10 and 5 respectively, suffered grievous injuries in a motor accident that took place on 4th August, 1959 due to the negligent driving of the motor vehicle by Gnanasoundara Pandian, the first respondent before the Tribunal, here in after referred to as the respondent. The accident took place at about 8 a.m. on the morning of Adi Ammavasai in Karaikudi town when the girls were walking on the pavement to buy vegetables in the market. The respondent who was not qualified to drive and wanted to learn driving and who had not taken out even a learner's licence, despite the caution uttered by the licenced driver, P. W. 6, who accompanied him that he himself would take the car within the town, drove the vehicle into the town and ran it over the pavement. When asked to apply the brakes, he pressed the accelerator with the result that the car speeded up, dashed against another vehicle, and then knocked down the two little girls. The father of the girls is a broker in precious stones making about Rs. 200 per month as income. The girls were school-going children. The respondent is a brass vessels merchant having a factory at Karaikudi and pays income tax and salestax. He claims he has properties worth Rs. 3,00,000. In the criminal case arising out of too accident, the respondent was convicted for offences under Ss. 3 and 89 of the Motor Vehicles Act read with S. 112 of the Act, but acquitted of criminal negligence under Ss. 337 and 338 I. P. C. The victims of the accident by their father and guardian on 2nd August, 1962, long before the constitution of the Claims Tribunal for the district, filed two suits against the respondent in the court of the Subordinate Judge, Devakottai claiming damages. The suits were returned by the court for presentation to the Claims Tribunal on 6th April, 1962 and claims In due form were presented to the tribunal on 7th April, 1962. Objections were raised for the respondent whether the matter should not be dealt with only by the civil court. Limitation was also pleaded. A further point was made that by reason of the acquittal of the appellant In the criminal court, the proceedings before the Claims Tribunal were barred. The Tribunal condoned the delay in the presentation of the petition and the preliminary objections to the maintainability of the petition were overruled. The related order, it is submitted, has been the subject of final adjudication in favour of the victims in civil revision petitions in this Court. These points are not reagitated before me now.
Initially, the Vanguard Insurance Co. was shown as a party respondent in the Claims petitions. During the course of the trial, counsel for the victims made an endorsement on the petitions that he was content with reliefs against the party respondent and was not seeking relief against the Insurance company Minor Ramalakshmi claimed Rs. 10,000 as compensation and for minor Usha, the claim was Rs. 15,800. The Claims Tribunal awarded as compensation a sum of Rs. 6.000 to Minor Ramalakshmi and Rs. 7.300 to minor Usha. The claim against the Insurance Co. was dismissed, no notice having been taken to the company on the claims. Appeals having been filed in this Court both by the respondent judgment-debtor and the claimants. For the claimants more compensation is claimed. Though several grounds were taken by the respondent, in his appeals only two questions were argued before me. First it was submitted that by giving up the claim for relief against the insurer of the vehicle, the claimants have lost their right to pursue their claims against him. The second question related to the quantum of damages. The liability to compensation is not otherwise contested before me.
On the first question, it is pointed out for the claimants that this was not taken or suggested before the Tribunal and that the respondent could well have objected when the claimants sought during the course of the trial to renounce reliefs against the Insurance Co. Learned Counsel for the claimants submitted that it was felt that in law no relief could be had against the insurer in the proceedings by the claimants as the respondent driver of the vehicle had no licence whatever and was not himself the person insured in relation to the vehicle. Quite properly, in the circumstances, it is said, no relief was sought against the insurer. Before the Tribunal there was an attempt by the respondent to plead alibi and also to deny the ownership of the vehicle These pleas were found against. But the fact is beyond dispute that the respondent is not the registered owner of the vehicle. The vehicle is registered in the name of one Nambudiripad. S. 96 (1) of the Motor Vehicles Act makes it clear that only when a judgment is obtained against a person insured by an insurance policy taken under Ch. VIII of the Act, the insurer shall pay to the person entitled to the benefit of the decree (award of the Claims Tribunal), any sum not exceeding the sum assured as if he were the judgment debtor in respect of the liability. The award that is sought in this case by the claimants in admittedly not against the person insured by a policy --relating to the use of the vehicle. The respondent does not claim himself to be the person insured by a policy relating to the use of the vehicle in question. S. 96 (2) provides for notice to the insurer through the court (Claims Tribunal) of the bringing of the proceedings for compensation before or after the commencement of the proceedings, only if the insured would have to satisfy under S. 96 (1) the judgment in the proceedings. S. 110-B required that in making the award, the Claims Tribunal shall specify the amount which shall be paid by the insurer. Since in this case, the claimants cannot make an insurer liable for any sums awarded, there is no duty cast on them to take notice in the proceedings to the insurer.
In the course of his arguments, Mr. Ramanujam, Learned Counsel for the respondent, submitted that a claim under Ch VIII could not be maintained against a third party like the respondent who is not the registered owner of the vehicle. There is no substance in this contention. For one thing, the matter is already concluded between the parties by the decision of this Court in the civil revision petition. Also, there cannot be the least doubt in the matter as the language of S. 110 is wide enough to cover all such claims in tort to persons arising out of the use of motor vehicles. The Claims Tribunal, the section reads, is constituted "for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles." For the cognisance of claims by the Tribunal, the emphasis is laid not on the persons who are sought to be made liable but on the fact of the compensation being in respect of accidents arising out of the use of, motor vehicles. S. 110 (1).read with S. 110 F requires that once the Claims Tribunal has been constituted in any area, the tribunal gets exclusive jurisdiction to entertain any question relating to any claim for compensation in respect of accidents involving the depth of, or bodily injury to, persons arising out of the use of the motor vehicles in the area. The jurisdiction of the civil court in a matter cognisable by the Tribunal is expressly taken away by S. 110 F.
The really important matter for consideration in these appeals is the quantum of damages. Examination of the question is better prefaced restating the well settled principle that the Appellate Court is generally averse to review the finding of the trial Judge as to the amount of damage and vary it, But the court would not hesitate to examine the quantum if it finds that the trial court has omitted some relevant consideration, or has been weighed down by some irrelevant consideration or it is a case where the amount awarded as compensation is so excessive or so wholly in-sufficient that to retain it would be plainly unreasonable and inequitable. In awarding damages for personal injuries, the court attempts to secure to the injured party reparation for the wrongs ful act and all the natural and direct consequences of the wrongful act so far as money can compensate.
Now, to examine the injuries suffered by the girls as a result of the accident, and the natural and direct consequences flowing therefrom, the Medical Officer in charge of the Municipal office at Karaikudi, who attended on the injured girls immediately after the accident, has been examined as P. W. 2 and he issued the wound certificates which have been marked at Ex. A. 4 for minor Usha and Ex. A. 5 for minor Ramalakshmi. Six injuries were found on minor Ramalakshmi and of them the more serious injury was injury No. 1, a lacerated incised looking wound 4"" long horizontal on the posterior aspect of the right knee, gaping, and 1 1/2"" deep. She was treated at the Karaikudi hospital itself where she had to stay for a period of 66 days. She was suffering from shock for a period of five days and as P.W. 10 she deposed that in July 1964, about five years after the accident she was unable to walk normally and was limping. She had felt unbearable pain while in the hospital. The doctor's evidence is that the girl is limping. The father of the girl examined as P.W. 9 stated that as she has developed limping, her marriage would cost him more by over Rs. 5000. The limping is found to be the natural consequence of the accident. For this girl, a sum of Rs. 3000 was claimed for pain and suffering, a similar sum as cost of medicines and tonics supplied, expenses of travel of the parents besides their loss of business. The balance of Rs. 4000 was claimed as loss of enjoyment of life and shortened expectation of life. The tribunal awarded as compensation for pain and suffering, Rs. 1500, and for expenses of medical treatment and other incidental expenses a sum of Rs. 500 was fixed. Observing that in spite of years having elapsed, the girl was limping and there would be difficulty in securing a suitable bridegroom for her, the Tribunal under the third head of compensation for loss of enjoyment of life"" etc, awarded a sum of Rs. 4000.
Because of her physical condition, the minor girl Usha was not brought to court. This girl was treated in the Ramanathapuarm Hospital where she had to stay for about two months, far some days in the special ward at Rs. 3 per day. The father deposes to the fact that she could not walk and she has to be lifted to the school and brought back The X ray photo taken is Ex. A. 1. According to her wound certificate, the grievous injuries found on her are (1) a fracture of the right femur, and a fracture of the left side of lschium and pubis bones. The doctor who treated her at the Ramanathapuram Hospital deposes to P. W. 1. He deposes that the girl was in a condition of shock and special treatment intended for children for setting right the bones was given. The Tribunal records that the doctor appeared to have examined the girl before giving evidence in 1963 more than four years after the accident. Her right leg is shortened by one inch. The doctor found that the girl was having pain and was unable to sit up He deposes that she cannot sit in the normal position and that if she conceived, she may not be having normal delivery and the child may have to be taken after caesarian operation. According to the doctor, it is possible to set the thigh bone by a major operation attendant with the risks of such operation. In his opinion, as she grows up she may get osteoarthritis changes in the thing and spine and may have to lead a sickly life. Having regard to the evidence, the Tribunal concluded that the girl Usha cannot have normal life and her life was likely to be sickly. She is denied the ordinary pleasures of child-bearing and much care may have to be taken of her. For the pain and suffering she had undergone, against the claim of
Rs. 4000, the Tribunal awarded only Rs. 1000. For the hospital and other incidental expenses for which Rs. 4000 was claimed, the Tribunal gave oily Rs. 300. Under a third head, loss of enjoyment of life, shortened expectation of life and provision for ensuring elementary comforts and medical help, for Rs. 7800 claimed, the Tribunal assessed the compensation at Rs. 6000.
Learned Counsel for the appellant questions only the amounts awarded to the claimants under the third head of compensation. It is said that the amounts awarded are excessive. Learned Counsel for the injured submits that the compensation awarded under the several heads is too low, wholly inadequate, when one girl has been made a physical week for life and the other is found limping even five years after the accident. When quantifying damages for the tort of negligence, the court generally finds it convenient to approach the determination under two major heads; (1) compensation for the pecuniary loss or damage the victim suffered, which to an extent is capable of being calculated by objective standards in terms of money and (2) general damages, non pecuniary loss. Under the former head fall subsidiary items, like expenses resulting from the injury like medical expenses, expenses of attendance on incapacitated victims, increased living expenses necessitated by the injury, loss of earning or earning power and losses other than loss of earning or earning power subject to rules as to remoteness of damages. The last sub head arises only in special cases and the instant case is one where the diminished prospect of marriage has figured as a substantial item of claim. The other major head of compensation takes in general damages for pain and suffering, loss of amenities of life and loss of expectation of life. It is unnecessary for our present purposes to analyse and examine the several heads. It Is sufficient to indicate that suffering under the head "pain and suffering" may include fright at time of the injury and fright reaction, fear of future incapacity either as to health or ability to make a living and humiliation, sadness and embarrassment caused by disfigurement or deformity resulting from the injury. Every one of the subsidiaries that fall under ""pain and suffering which is now almost a term of art, may be said to be present in the instant case. The head "loss of amenities of life" is made to embrace everything that reduces the victims'' enjoyment of life considered apart from any material or pecuniary loss which may be attendant upon the loss of amenity-- see Kemp and Kemp, the Quantum of Damages, Vol. 1, 2nd Edn. page 15. Under this head the court takes notice of the fact that apart from the positive unpleasantness of pain and suffering resulting from the injury, the victim's enjoyment of life has been reduced. This is tellingly illustrated In Manely v. Rugby Portland Cement Co. Ltd, by Birket L, J. thus:
......the blind man made blind by the accident will no longer be able to see familiar things 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.
See this case set out in Kemp and Kemp at page 628. Of the victims in this case, both school-going girls at the time of the accident, one has to limp and the other crippled for life. The latter cannot enjoy the normal pleasures of life either in adolescence or in adult life.
For the tort of negligence resulting in personal injury nearly a century ago, Cock-burn C.J. in Philips v. London & South Western My Co.
(1879) 4 Q.B.D. 406, said that a reasonable view of the damages could not be had, unless the several heads of damages under which the plaintiff is entitled to compensation are considered, the bodily injury suffered, the pain undergone, the effect on the health of the sufferer according to its degree and its probable duration, as likely to be temporary or permanent; the expenses incidental to attempt to effect a cure, or to lessen the amount of the injury, the pecuniary loss sustained through inability to attend to a profession or business, as to which again the injury may be of a temporary character or may be such as to incapacitate the party for the rest of his life. In Roach v. Yates (1938) 1 K.B. 256 the heads of damages are divided as (1) the actual loss and expenditure; (2) the pecuniary damage which will be incurred; (3) the pain and suffering; (4) the loss of expectation of life; (5) the mental suffering to be undergone and (6) the physical disabilities. The heads of damages adopted are not exhaustive, but sufficiently broad and Indicate what are relevant and pertinent to the enquiry. Of course, in assessing damages under several beads, the court has to see that there is no overlapping suffering past and future may for instance to an extent be taken in loss of amenities or vice versa. A Tribunal may find it difficult in some cases to specify the quantum under each sub-head severally. In such a case, it would be sufficient if the Tribunal has considered everything relevant and crucial. Ordinarily, with reference to a male, an important head of pecuniary damage is the pecuniary loss sustained through inability to attend to profession or business. This may not always be appropriate with reference to a female injured, as a majority of them in our country do not take to profession or business. Pecuniary damages with reference to them have to be assessed on different considerations.
Though it was not said quite that way and the chief complaint of respondent's Learned Counsel, Mr. Ramanujam was to the award of substantial sums on the basis that the victims were girls who in the normal course would have to get married and their prospects of marriage were affected, the subsidiary item "loss of expectation of life" under the third head of computation in these cases calls for some examination. This is a modern head of claim and occasionally misunderstood as to include in its computation compensation for loss of "expectations in life", a wholly different element. In torts as in certain other branches of law, we have to look to English cases and standard English text books for light and guidance. The Tribunals here occasionally miss that under the bead, loss of expedition of life, they are not concerned with loss of future pecuniary prospects, and this is an item of non-pecuniary damage. This item of damage is not for "the prospect of length of days but the prospect of a predominantly happy life", an elusive account. It enters into the assessment of damages in cases of serious personal injury. Damages under this head are awarded in respect of happiness which the plaintiff might expect to have enjoyed in the years of life of which he has been deprived. Under this specific head only a moderate sum is allowable according to decisions. The shortening of life where the victim is killed may result in pecuniary damage to his estate and dependants. That is an entirely different account. The leading decision on this subject is Benham v. Gambling (1941) 1 A.
E. R. 7, where at page 13, Viscount Simonds, L. C., points out:
Stripped of technicalities, the compensation is not being given to the person who was injured at all, for the person who was injured is dead. The truth, of course, is that, in putting a money value on the prospective balance of happiness in years that the deceased might otherwise have lived, the Jury or Judge of fact is attempting to equate incommensurables. Damages which would be proper for a disabling injury may well be much greater than for deprivation of life. These considerations lead me to the conclusion that, in assessing damages under this head, whether in the case of a child or an adult, very moderate figure should be chosen.
The Lord Chancellor in the course of his judgment said that before damages are awarded in respect of the shortened life of a given individual under this head, it is necessary for the court to be satisfied that the circumstances of the individual life were calculated to lead, on balance, to a positive measure of happiness, of which the victim has been deprived by the defendant's negligence. The House of Lords recently again in Yorkshire Electricity Board v. Maylor (1967) 2 A. E. R. 1, pointed out that in assessing damages under the bead loss of expectation of life, very moderate figure should be chosen, Lord Delvin remarking :
It would, I think, be a great improvement if this head of damage was abolished and replaced by a short Act of Parliament fixing a suitable sum which a wrong-doer whose act has caused death should pay into the estate of the deceased.
No doubt when there is evidence of shortened expectation of life, even if the victim is still living, this element of damage can be taken into account and figure in the assessment. In Morgan v. Scoulding (1938) 1 K. B. 786 at 788-789, it is said:
A person who is still alive can and always has been able to bring in action in such circumstances and say "As part of my damages I want something for my loss of expectation of life." It is not necessary that the person should be dead in order that action should be brought.
As pointed out in Kemp and Kemp at page 61, if the injured himself sues for loss of expectation of life, the award would be less than the case where the victim is dead because a court cannot be certain how much longer the plaintiff will continue to live and so cannot decide with the same degree of certainty how much his exception of life had been shortened. But the constant apprehension of death where death is not immediate and there is considerable suffering may go to swell the damage under the head of pain and suffering. In the case of children, particularly of tender years, there will necessarily be so much uncertainty about the future that no competent estimate of future happenings can be made to award any reasonable amount as damages for loss of expectation of life. In the present case no attempt has been made in evidence to make out that the life expectancy of the children has been curtailed and if so to what extent, except of course in the case of minor Usha, there is danger in conception. In case of grievous injuries if the injured can reasonably feel, that expectation of life has been reduced, the court can well award damages for that under the head of pain and suffering. Even if there is no evidence of curtailment of expectation of life, and there be no reasonable apprehension in this regard when the injuries are permanent and the injured has to look forward to a life of frustration and handicap, the injured must be compensated so far as it can be done for that and for mental strain and anxiety which result therefrom.
Having carefully gone through the order of the Tribunal, I find that the substantial sums awarded as compensation to the two girls is not to any extent as assessment of compensation for the elusive head "" loss of expectation of life."" In the claim petition under the third head nor-pecuniary and pecuniary losses have been clubbed together and no distinction made. Compensation for less of enjoyment of life, shortened expectation of life, medical help and for the ensuring elementary comforts have all been clubbed together and Rs. 4.000 claimed for Ramalakshmi and Rs. 7,800 for
Usha. Though the Tribunal had assessed the substantial part of the compensation under this head, in fact it has not quantified any amount under the specific head of loss of expectation of life. It is not therefore correct to take that for loss of expectation of life contrary to the rule established in this regard and the elusive character of the head heavy sums have been awarded. Nor can the claimants make now a demand under this head as there is little evidence that their life expectancy has been reduced and its extent. This element, as an independent factor has not been made to figure as an item of compensation before the Tribunal and quantified. The real basis of the assessment under the third head is the permanent injuries suffered by the girls and con-sequential deprivations. May be some amount could be awarded to Usha under this head, but I do not think that taking an overall picture of the compensation awarded that any figure should now be added to her under this head.
It is under the third head with reference to Ramalakshmi, the learned Judge observes that it would be difficult for the father to secure a suitable bridegroom for her with the physical deformity that had accrued to her. Coming to the other girl Usha, she has been left even four years after the accident in a miserable condition. She could not sit in the normal position and her chances of happy marriage a remote possibility. Fracture of the lschium and pubis bones is a serious thing for a girl She may find no fulfilment in her life as the doctor's evidence is that she may not have normal delivery and it she should conceive, the child will have to be taken after caesarian operation. So the girl even if she gets married will have to be in perpetual dread of pregnancy. Added to that, the doctor says that she might develop osteoarthritis changes as she grows up, in the thigh and in the spine She will be leading a sickly life. The bodily injury suffered by the injured with its attendant deprivations should entitle the victim to substantial damages even on a closely reasoned assessment. Impairment of health and vitality, leaving out the pain and suffering is itself the loss of the best in
life. Manifestly the prospects of marriage for both the girls have been reduced and so far as minor Usha is concerned, very seriously. From what one finds of her shattered condition in the record, her married life may be a burden both to her and to her husband, if he comes forward to marry
her. She may require someone, to perpetually assist her. The Tribunal had in a general way these elements in mind in awarding Rs. 4,000 and Rs. 6,000 under the third head. The greater part of these substantial sums could well go under pecuniary damages. For girls who may not normally be expected to earn their livelihood, diminished prospects of marriage and securing a husband, who could maintain them in reasonable comfort according to their standards of life and fair expectations, is an essential and material element for consideration in assessing damages. It must be considered, at least in regard to the classes of people we are dealing with here, as the equivalent of loss of earnings and earning power.
In Kemp and Kemp the learned author points out:--
In the case of a female plaintiff serious injury or disfigurement may greatly reduce her prospect of marriage. Quite apart from other aspects of the matter, which fall to be considered under the head of loss of amenities, such a matter would represent a material loss, especially in the case of a woman who regarded marriage as her real prospective career, and had not been educated or trained for anything else. An injury which handicaps her in the marriage market represents a real, pecuniary loss
In Lomnert v. Eastern National Omnibus Co. (1954) 2 A. E. R.719 where the wife pleaded estrangement of the husband owing to disfigurement caused by injuries suffered, the court observed that the disfigurement might well be an element in the damage which the wife would recover, because it would be in the line of consequential damage flowing from the tortious act done towards her.
In Halsbury's Laws of England, Vol. II, 3rd Edn. at page 215 footnote (g), it is said that damages for disfigurement sometimes termed cosmetic damages may be substantial in the case of a marriageable female plaintiff. In the present ease, it is not disfigurement but disablement, and in respect of one of the victims very serious disablement, disablements affecting prospects of marriage. These two girls in the normal course would expect married life and tiller parents and parents-in-law would expect for them even as the girls would, happy motherhood and comfortable life.
Having regard to all aspects of the case, at any rate, with regard to infant Usha, another Tribunal could have and might have awarded a larger amount whether under the head pain and suffering or for loss of amenities. But that does not warrant an Appellate Court's interference with the assessment. this Court to vary the assessment must find that there is an wholly erroneous estimation of the damage, or the amount awarded is so inordinately low or so inordinately high that there must necessarily be some error in the approach. I cannot say that the total figure awarded having regard to all the circumstances of the case is at all so high or so miserably low as to call for a revision. Public policy would require that damage should not be awarded on an extravagant scale At the same time courts must keep with the times and have regard also to the decline in the purchasing power of money. If there is no overlapping in the heads of damages, and there is none here nor any contention even to that effect, and when there is no error as to relevancy or remoteness, the appellate court will not interfere because it would itself have given rather more or rather less.
I see no fault in the final total assessment. Even if there bad been award of damages under a sub head not quite proper, in the circumstances of the case the appellate court could shift the element of its proper head when on the whole the damages have been properly assessed and are not on the high side. It is the relevancy and materiality of the matter considered and computed that matters and not the nominal heading given. The items are not independent heads each giving a cause of action for compensation. It is the ultimate lump amount that compensates the victim for the tort. It Is its reasonableness and fairness that are properly put in issue, in appeal.
In Watson v. Powles (1967) 3 A. E. R. 721, at pages 722, 723 it is said :
There is only one cause of action for personal injury and not several causes of action for the several items. The award of damages is therefore an award of one figure only, a composite figure made up of several parts at the end all parts mast be brought together to give fair compensation for the injuries.
Only for purpose of convenience, the court proceeds to consider damages item by item. The itemising aids the court in arriving at a fair and reasonable compensation. In the result, the appeals fail and are dismissed. As the appeals have been filed by both the parties, the parties will bear their respective costs in the appeals.