Niveditta Arora and Others vs Prem Singh and Others

S.S. Sodhi, J.—Niveditta Arora, while on her way to school was knocked down by a speeding car CH-4068 coming from the opposite direction when it suddenly swerved towards its right and hit into her cycle. She sustained serious injuries thereby. This happened on September 10, 1975 at about 8 a.m. on the road in front of Museum in Sector 10, Chandigarh.

It was the finding of the Tribunal that the accident here had been caused entirely due to the rash and negligent driving of the car driver. A sum of Rs. 12,000/- was awarded as compensation to the claimant Niveditta Arora for the injuries sustained by her.

The challenge in appeal now is to the quantum of compensation awarded. The claim being for enhanced compensation.

On being brought to the Emergency Ward of the P.G.I. Chandigarh soon after the accident, PW 1 Dr. Jaswant Rai, who examined the claimant found five injuries on her person. These being:

(1) Swelling and deformity at the lower 1/3rd of the right thigh with local bruises about 2" � 1". Abnormal mobility and crapitus was present.

(2) Lacerated wound over the anterior aspect of the left knee about 1" in length.

(3) Two bruises on the lateral aspect of the right leg, in the lower 1/3rd area.

(4) One bruise over the lateral aspect of the left elbow about 2" � 1".

(5) Two haematomas over the left parietal bone.

Injury No. 1 was found to be grievous. On X-ray a fracture in the lower 1/3rd of the right thigh bone was detected. Niveditta Arora was at that time under shock and agony and was consequently given resuscitative measures in the first instance and the fractured limb was put under a splint. Later, she was removed to the hospital ward where she was given skin traction on the splint.

The evidence further shows that Niveditta Arora remained admitted in the hospital for over 50 days. During this period, three operations were performed. According to PW 1 Dr. Jaswant Rai, in the first operation, on September 16, 1975, a steel pin was passed in the right leg for the purposes of traction. The reduction was not, however, satisfactory. A second operation was then performed about a week later on September 22, 1975, under general anaesthesia. Manipulation of the fracture was undertaken. A third operation was done on October 13, 1975, again under general anaesthesia. The fracture was opened and it was fixed with a steel rod. Besides this, another minor operation was done on October 14,1975, when the steel pin in the right leg put earlier, was removed.

According to Dr. Jaswant Rai, Niveditta Arora was not fully recovered by the time she was discharged from the hospital. She was discharged with traction and splint on and he stated that two more operations were required to be performed on her right leg.

It was further the testimony of Dr. Jaswant Rai that on March 18, 1976, another injury in the left knee of Niveditta Arora was discovered This was after she had started moving about This injury was a tear in the cartilage of the left knee and an operation had to be performed with regard to this injury too.

As regards the effect of the injuries suffered, Dr. Jaswant Rai deposed that there was a shortening of the right leg by about 1/2" which was a permanent disability and besides this she had four scars on her body because of the injuries and the resultant surgery. These scars being:

(1) 8" � 1" on the lateral aspect of the right thigh in the lower half.

(2) 3" � 1" on the right buttock.

(3) 1" � 1" on the anterior aspect of the right knee.

(4) 1" � 1" on the anterior aspect of the left knee.

In the opinion of Dr. Jaswant Rai, the scars suffered by the claimant were of a permanent nature and her prospects of marriage also stood adversely affected by these scars and what is more, she could no longer participate in games and sports on that account as also the limp in her right leg.

A similar statement was made by PW 3 Dr. Pardeep Sharma, who was the other doctor attending upon the claimant. He deposed to the further fact that the claimant had to remain in bed for over a month and a half after her discharge from the hospital.

PW4 Dr. Susheela Arora, the mother of Niveditta Arora, stated that the claimant had to remain on crutches for 2-3 months after she had been allowed to get up. She too deposed to the injuries and the disabilities that the claimant suffered. She also stated that the claimant had ambitions of joining the Indian Administrative Service but now stood barred on account of the injuries suffered by her in this accident. It was also her testimony that during the period that the claimant was confined to bed both in the hospital and at home she used to attend upon her and for this purpose had taken three months'' leave. A similar statement was made by PW 5 Dr. M.L. Arora, the father of the claimant.

Finally, there is the testimony of the claimant herself PW 6 Niveditta Arora. After deposing to her hospitalisation and the period that she had to remain in bed at home thereafter, she stated that she had to use crutches for 5-6 weeks and had been undergoing treatment tiil date, i.e., when she was examined as a witness which was almost three years later, that is, October, 1978. She stated that she still felt pain if she exerted herself even a little. She deposed that she could not take part in any type of sports and could walk with difficulty and that too with a limp, as her right leg had been shortened. She too adverted to her ambition to join the Indian Administrative Service but had to change over to Pre-Medical on account of this accident. Such being the situation and the circumstances of the claimant, the amount awarded to her as compensation cannot but be branded as grossly inadequate.

There can obviously be no precise measure of the compensation payable for all that an injured claimant has to undergo on account of the injuries sustained. By no arithmetical calculation can that exact sum of money be determined as would represent such a thing as pain and suffering which a person has undergone by reason of the accident. Nevertheless, the law recognises that damages are indeed payable under this head and for good reason too. This is where the injuries suffered, their nature and extent in the context of the circumstances of the injured provide the necessary yardstick for the measure for the damages to be awarded.

It would be apt to recall here what was observed in Admirality Commissioners v. S.S. Valeria 1922 (2) AC 242:

...In calculating damages you are to consider what is the pecuniary sum which will make good to the sufferer, so far as money can do, the loss which he has suffered as the natural result of the wrong done to him.

What has been claimed as special damages in this case is in the first instance hospital and other incidental expenses. It has come in evidence that Rs. 617/- had to be paid as the diet and heater expenses for the period that the claimant remained admitted in the P.G.I. Hospital. The incidental expenses would include the transport expenses of her attendants particularly the parents. It would be reasonable to assess such expenses at Rs. 1,500/-.

During the period that the claimant remained confined in bed both in hospital and at home, she was obviously in need of nursing. This nursing was provided to her by her mother. It is now well-settled that compensation is payable for such services even though provided gratuitously. The Court of Appeal in Donnelly v. Joyce 1974 ACJ 305 (CA, England), held that on principle and authority, the injured Plaintiff was entitled to recover damages in respect of the fair and reasonable cost of the special attention, necessitated by the Defendant''s wrong-doing. The claim here was for the voluntary services rendered by the mother to her injured young son. It was held that the son was entitled to recover damages in this respect. The measure of such damages is what the daily attendance of a qualified person would have cost if the mother had not provided such attendance to the injured claimant. So considered the claimant must be held entitled to a sum of Rs. 1,500/- on this account.

Next is the claim for special diet which had to be given to the injured-claimant both during her treatment as also during the period of her convalescence. According to her father, Dr. M.L. Arora, the special diet cost Rs. 10/- to Rs. 15/- per day arid it continued for over two years. In the circumstances, it would be reasonable to hold the claimant entitled to Rs. 7,000/- on this account.

Turning to the claim for general damages, it will be seen that in this case, the claimant had to undergo a long period of hospitalisation and convalescence and is now left with a permanent disability on account of the shortening of her leg and what is more besides the pain and suffering caused to her, the prospects of marriage also stand severely impaired on account of the scars on her body. It would be relevant to advert here to the statement on the subject in Kemp and Kemp on Quantum of Damages, Volume I, Second Edition, page 15:

In the case of a female Plaintiff serious injury or disfigurement may greatly reduce her prospects 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 real material loss, especially in the case of a woman who regarded marriage as her real prospective career and who had not been educated or trained for anything else. An injury which handicaps her in the marriage market represents a real pecuniary loss.

As is well known, marriage in our society, particularly amongst girls of the class the claimant belongs to, is very much the normal expectation of every girl whether or not she takes up an independent career. This injury must be taken to constitute a serious loss suffered by her. The physical disfigurement which may result in loss of prospects of marriage* does indeed constitute a grave loss for which the claimant is entitled to pecuniary compensation. A precedent here is provided by the judgment of I.S. Tiwana J. in Rattanjit Kaur v. State of Haryana 1981 ACJ 416 (P&H), where a sum of Rs. 25,000/- was awarded on this account. The claimant here must clearly be held entitled to a similar sum.

Finally, there is the matter relating to damages to be awarded for the pain and suffering that the claimant had to undergo on account of the injuries that she sustained and the long period of treatment, which she had to be subjected to. The permanent disability caused to the claimant by her injuries has also to be kept in view in this behalf. Loss of amenities of life and the capacity to lead a normal life are inherent in the present situation of the claimant. Considering the circumstances of the claimant in their totality, it would be fair and just to award to the claimant a sum of Rs. 40,000/- as compensation under these heads.

In the result, the compensation payable to the claimant Niveditta Arora is hereby enhanced to Rs. 75,000/- which she shall be entitled to along with interest at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded. The liability for payment of this amount shall be joint and several of all the Respondents.

This appeal is consequently accepted with costs. Counsel''s fee Rs. 500/-.