ADAMKHAN MOHAMED v. RAMESH RAYA NAIK — 1978 DIGILAW 76 (KAR)

( 1 ) THIS is a first defendant's appeal against the judgment and decree dated 11-7-1972 passed by the Dist Judge, North Canara in RA. 199 of 1971 on his file. The relevant facts, as found established by the Court below, which are necessary for appreciation of contentions raised in this appeal are that the lorry bearing MYZ 2792 belonged to the first defendant in the suit. The second defendant was the driver of the said lorry. It is found that on 8-3-61 when defendant-2 was driving the lorry in a rash and negligent manner, he hit against PW. 5 Rameah, a young boy of about 8 years and dragged the boy on the road for some distance as a result of which the boy sustained serious injuries on his left arm. He was immediately admitted to the hospital and ultimately he came out of the hospital with deformity and disability in his left hand. It is held by the lower appellate court that the boy is not able to stretch his left hand beyond 90 degrees. The boy has deposed that he is unable to use his left hand in the normal way which stands unrebutted and unchallenged. ( 2 ) THE lower appellate Court has found that the accident is due to rash and negligent driving of the lorry by defendant-2 and in that view, the lower appellate Court has awarded by its judgment and decree compensation to the injured boy represented by his father, Rs. 9360/- along with interest thereon at 6 per cent from the date of the suit till payment from defendants 1, 2 and 4 The suit against defendant-3 is dismissed as there was no insurance by defendant-3 covering the lorry on the date of the accident. Aggrieved by the said decree the present appeal is filed by the first defendant in the suit. ( 3 ) THE learned Advocate appearing for the appellant-first defendant vehemently argued that the claim made in the suit was untenable as the finding of driving the lorry in a rash and negligent manner was not properly established in evidence. He further submitted that the compensation claimed and awarded is highly excessive. He also submitted that the lower appellate Court was not justified in awarding interest at the rate of six per cent from the date of filing the suit. He further submitted that the compensation claimed and awarded is highly excessive. He also submitted that the lower appellate Court was not justified in awarding interest at the rate of six per cent from the date of filing the suit. ( 4 ) THE learned Advocate appearing for the first respondent argued supporting the legality of the findings of the first appellate Court. The first appellate Court on discussion of evidence has held that the accident was the result of rash and negligent driving of the lorry. It has further held that the injury to the boy is the direct result of it. On going through the evidence, I do not find anything justifiable to interfere with the finding of the lower appellate Court. This Court sitting in second appeal is not expected to reasses the evidence unless it is found that the court below has entirely ignored any piece of material evidence on record or has based its finding on no evidence at all. In the instant case, there is the evidence of eye witnesses namely, PW. 1, Raya the father of the injured boy. ( 5 ) HE has stated that he witnessed the boy being knocked by the lorry. PW. 2 Shashikala" is a teacher of the school where the boy was studying and she is an eye witness to the occurrence. She has deposed that she witnessed the accident, that the lorry came in a rash and negligent manner and hit the boy who was On the extreme left side to the lorry. PW. 3 Ananth Hanumanth Shetty is the Head Master of the school. He arrived immediately after the accident. The learned Dist Judge had believed the evidence of these witnesses after fully discussing the answers elicited from them in the cross-examination. As against that it has to be noted that the driver of the lorry never appeared as a witness. He discretly desisted from entering the box for obvious reasons and adverse inference has to be drawn in the circumstances against the driver. The contending defendant examined as a defence witness one Thimmappa whose name is not even suggested in the written statement of the concerned defendants. The learned Dist Judge has rightly discarded his evidence as that of a person who is got up for the purpose. The contending defendant examined as a defence witness one Thimmappa whose name is not even suggested in the written statement of the concerned defendants. The learned Dist Judge has rightly discarded his evidence as that of a person who is got up for the purpose. Thus appreciating the entire evidence on record, the Dist Judge has come to the correct conclusion that the accident was the result of rash and negligent driving and that it caused injuries to the boy as a direct result. In addition to the positive evidence on record the learned Dist Judge has also drawn support from the maxim res ipsa loquitur for the reason that the lorry went off the read on the left side and hit the boy and there is no explanation by the driver, who has not entered the box at all, why he siwerved the lorry to the extreme left side. That being so, I have no hesitation to hold that the lorry was driven in a rash and negligent manner and that the injuries sustained by the boy were the direct result of it. ( 6 ) THE next point that arises for my consideration is whether the damages awarded could be described as just and proper. It may be mentioned at the very outset that in the plaint, the details of damages are not mentioned and what is. claimed is in the general award for the living maintenance of the boy for the rest of his life. It is true that the particulars of damages are not detailed in the plaint but at the same time it has to be remembered that what is claimed is only general damage. It is a well recognised principle of law that when once the injuries mentioned in the plaint are proved to be the result of actionable negligence on the part of the defendants, general damages have to be presumed by the Court. In a recent decision m the case of British. Transport commission v. Gourley, 1956 AC. 185, 206. Lord Goddard explaining the position has observed :" In an action for personal injuries the damages are always divided into the main parts. First, there is what is referred to as special damage, which has to be specially pleaded and proved. In a recent decision m the case of British. Transport commission v. Gourley, 1956 AC. 185, 206. Lord Goddard explaining the position has observed :" In an action for personal injuries the damages are always divided into the main parts. First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists Of out of pocket expenses and loss of earning incurred down to the date of trial and is generally capable of substantially exact calculation. Secondly, there is general damage which is law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. " ( 7 ) THUS it is clear that special damages claimed should be specified in the plaint and proved in the evidence whereas general damages have to be presumed by the Court. What is claimed in the present case is only general damage and heace the defect in the plaint would not come in the way of the Court awarding damages. It may also be mentioned that the defendants concerned have rightly understood what is claimed in the present plaint as demage. In the written statement at para 8, it is stated by the first defendant thus ; " This defendant or any of the defendants are not liable for any damages. " again in para 6 it is stated as follows : " The contends of para 7 are not admitted. This defendant or defendant-2 who is his son is not liable for any damages. " similarly, the issues framed by the trial Court refer only to damages and nothing else. Therefore, I am of the considered view that the first appellate court has rightly pointed out that what is claimed in the plaint is only general damages and nothing else. ( 8 ) ADVERTING to the aspect of quantum of compensation, we have to bear in mind that it has to be awarded for the injury itself for pain and suffering, loss of amenities and permanent disability incurred. There is no pleading about the loss of future income in this case, because, the boy was only attending school. ( 8 ) ADVERTING to the aspect of quantum of compensation, we have to bear in mind that it has to be awarded for the injury itself for pain and suffering, loss of amenities and permanent disability incurred. There is no pleading about the loss of future income in this case, because, the boy was only attending school. But, it is specifically mentioned in the plaint as well as in the evidence that the boy lost one year in the school. It is held by the lower appellate Court that general damages have to be awarded on these grounds. The learned Dist Judge has observed that what is claimed by way of general damages namely Rs. 9360 is rather low, considering the serious nature of the injuries and the permanent disability incurred by the boy. The boy is not able to stretch his left hand fully, beyond 90 degrees. ( 9 ) THAT means, that the boy has to suffer for the rest of his life inconvenience and loss of amenities. In the case, bombay State Road Transport Corpn v. Narayan Pandurang Kamath, 1963 Myslj. Supp. 159. this Court awarded Rs. 15,000 as general damages. In that case,the right fore-arm and palm of the victim were crushed. In the instant case, the injuries are not so serious. There is only deformity and partial disability in stretching the arm. Therefore, rs. 9,360 awarded cannot be considered to be so high as to call for an interference at the hands of this Court. ( 10 ) AGAIN in the case of Govt of India v. Jeevaraja Alva, 1970 ACJ 221. this Court awarded Rs. 25,000 as general damage to a boy of 10 years who suffered compound fracture of fore-arm resulting in partial disability and deformity. In that case, in addition to these injuries there was fracture of both bones of the leg and the boy had suffered mental shock. Therefore, having regard to the injuries and deformity to the left arm, Rs. 9,000 and odd awarded in this case cannot be considered to be excessive. In the case of Ganga Sugar Corpn Ltd v. Sukhbir Singh, 1973 ACJ 449. the High Court of Allahabad awarded Rs. 10,400 as compensation to sukhbir Singh who suffered crush injury on his left arm. 9,000 and odd awarded in this case cannot be considered to be excessive. In the case of Ganga Sugar Corpn Ltd v. Sukhbir Singh, 1973 ACJ 449. the High Court of Allahabad awarded Rs. 10,400 as compensation to sukhbir Singh who suffered crush injury on his left arm. The High Court also awarded future interest at the rate of 6 per cent per annum along with costs commensurate with the amount awarded to the claimant. . The claimant had demanded Rs. 51,000. In the instant case, no, doubt, there is no crush injury to the left hand to the extent as in the case of Allahabad under consideration. Considering all these comparable cases and the like -. lihood of suffering, and loss of earning capacity to the boy in his future life, I hold that Rs. 9,360 awarded for general damages cannot be described as very high or so high as to call for interference at the hands of this court. Hence, I confirm the same holding that it is quite reasonable and appropriate. ( 11 ) THE last question that was agitated before me was one of the interests, pending and future interests, at the rate of 6 per cent p. a. It is true, that the accident happened in the year 1961 and the case has been pending for a long time; having regard to the same, I hold it just and proper to reduce the pending and future interest at 5 per cent p. a. instead of 6 per cent. With this slight modification in the rate of interest, the appeal fails and is dismissed with costs. --- *** --- .