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1976 DIGILAW 93 (KAR)

B. G. ARAVINDU v. K. MANIKYA RAO

1976-07-06

D.S.TEWATIA, SRINIVASA IYENGAR

body1976
TEWATIA, J. ( 1 ) THE appellant who was involved in an accident with a lorry suffered crush injury on the 4th toe of her left foot, fracture of the superior ramus of the left pubic bone and fracture of the proximal and middle phalanges of the 4th toe of the left leg. lshe claimed a sum of Rs. 13,300 ttowards general damages and Rs. 1,700 towards special damages. The Tribunal allowed rs. 2,250 under the head of general damages and Rs 500 under the head of special damages. The appellant has claimed enhancement of the damages so awarded by the Tribunal in this appeal. ( 2 ) SINCE the respondents have neither filed any appeal against the award nor have they challenged the culpability regarding the accident, we are in this appeal concerned only with the consideration of the adequacy of the quantum of damages awarded by the Tribunal. ( 3 ) DEALING first with the quantum of compensation awarded under the head 'general damages', it may be observed that the amount of Rupees 2,250 awarded by the Tribunal is grossly inadequate when the same is considered in comparison with the amount awarded in comparable cases by the Courts. One such case finds mention in Municipal Corpn of Delhi v. Shanti Devi Dutt (1) wherein injuries suffered by the claimant in comparison with the injuries of the present appellant were very minor, the same being just bruises and swelling and no fracture, whereas in the present case the appellant suffered fracture on the very vital bone of her body as also the 4th toe of the left foot. The pain and suffering that she must have undergone must have been considerable. Further the Doctor, PW. l, in his ev)dence had opined that the appellant had suffered permanent defor- mity of her 4th toe and that she might have to undergo an operation for removing the hematoma developed on the toe causing the aforesaid defor- mity and if the operation failed she might have to wear a special shot for her life. ( 4 ) WE are conscious of the fact that it is very difficult to translate non-pecuniary damages into monetary terms, and the Court has to be on its guard while awarding compensation under this head. ( 4 ) WE are conscious of the fact that it is very difficult to translate non-pecuniary damages into monetary terms, and the Court has to be on its guard while awarding compensation under this head. If the principle of moderation is overlooked in such matters, the judgment of the Court may not commend itself to the approval of the general community. Keeping the aforesaid in view we are of the opinion that the appellant deserves to be awarded a sum atleast equal to the sum awarded in Municipal Corpn of delhi v. Shanti Devi Dutt, 1975 ACJ 506. We, therefore, enhance the compensation under this head from Rs. 2,250 to Rs. 5,000. ( 5 ) AS regards the special damages the Tribunal declined to award any damages to compensate for the expenditure incurred on boarding and lodging by the father of the appellant in whose house the appellant was constrained to stay on account of the accident almost for a period of 11/2 months. The Tribunal was of the view that since it was the moral duty of the appellant's father to look after her for the period she happened to be in his house, so the appellant was not entitled to claim any compensation for such expenditure. The learned Counsel for the appellant has, however, urged that the appellant was entitled to be compensated for the expenditure incurred by her father on her, even if he was morally bound to support her during the period the accident in question forced her to reside in his house. We find considerable merit in the contention advanced on behalf of the appellant. In this regard we find support for his contention from a British decision reported in Donnelly v. Joyce, 1974 ACJ, 305, and the following observation made by Megaw, LJ, can be noticed with advantage :"14. Counsel for the defendant's first proposition is that a plaintiff cannot succeed in a claim in relation to someone else's loss unless the plaintiff is under a legal liability to reimburse that other person. The plaintiff, he says, was not under legal liability to reimburse his mother. A moral obligation is not enough. Counsel for the defendant's first proposition is that a plaintiff cannot succeed in a claim in relation to someone else's loss unless the plaintiff is under a legal liability to reimburse that other person. The plaintiff, he says, was not under legal liability to reimburse his mother. A moral obligation is not enough. Counsel for the defendant's second proposition is that if, contrary to his submission, the existence of a moral as distinct from a legal, obligation to reimburse the benefactor is sufficient, nevertheless there is no moral obligation on the part of a child of six years of age to repay its parents for money spent by them, as in this case. 15. We do not agree with the proposition, inherent in Counsel for the defendant's submission, that the plaintiff's claim, in circumstances such as the present, is properly to be regarded as being, to use his phrase, in relation to someone else's loss merely tecause someore else has provided tc, or for the benefit of, the plaintiff-the injured person the money, or the services to be valued as money, to provide for needs of the plaintiff directly caused by the defendant's wrong doing. The loss is the plaintiff's loss. The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take the present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages for the purpose of the ascertainment of the amount of his loss is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss It is the plaintiff's loss. 16. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss It is the plaintiff's loss. 16. Hence it does not matter, so far as the defendant's liability to the plaintiff is concerned, whether the needs have been supplied by the plaintiff out of his own pocket or by a charitable contribution to him from some other person whom we shall call the 'provider'; it does not matter, for that purpose, whether the plaintiff has a legal liability, absolute or conditional, to repay to the provider what he has received , because of some private agreement between himself and the provider; it does not matter whether he has a moral obligation, however ascertained or defined, so to do. The question of legal liability to reimburse the provider may be very relevant to the question of the legal right of the provider to recover from the plaintiff. That may depend on the nature of the liability imposed by the general law or the particular agreement. But it is not a matter which affects the right of the plaintiff against the wrongdoer. "the evidence adduced in this regard by the appellant is a note book ext. P11. It gives details of expenditure of Rs. 750 incurred by her father on the maintenance of five persons which included the appellant, her two minor children and two sisters of her husband who had been called to look after her. ( 6 ) THERE being no oral evidence that in fact the two sisters had been called to look after the appellant and the evidence furnished by Ext. P11 being inadequate to establish the said fact, we would be inclined to take into consideration only the expenditure that must have been incurred on the appellant and her two minor children who, on account of their tender age, would be considered inseparable from her and thus must have stayed with her for the period she stayed with her father. We place that expenditure at Rs. 250 and therefore enhance the special damages from Rs. 500 to rs. 750. ( 7 ) IN conclusion we order that the appellant shall be entitled to an enhanced compensation of Rs. 3,000 with interest thereon at 5 per cent per annum from the date of the petition. Parties to bear their own costs in this Court. 250 and therefore enhance the special damages from Rs. 500 to rs. 750. ( 7 ) IN conclusion we order that the appellant shall be entitled to an enhanced compensation of Rs. 3,000 with interest thereon at 5 per cent per annum from the date of the petition. Parties to bear their own costs in this Court. --- *** --- .