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1981 DIGILAW 21 (GUJ)

STATE OF GUJARAT v. DUSHYANTBHAI NAGJIBHAI PATEL

1981-02-02

P.D.DESAI, S.B.MAJMUDAR

body1981
P. D. DESAI, J. ( 1 ) IT is well-settled that a person injured by anothers wrong is entitled to general damages for non-pecuniary loss such as his pain and suffering past and future and his loss of amenity and enjoyment of life. Such damages constitute a conventional sum. A set of conventional principles have been evolved providing a provisional guide to the comparative severity of different injuries and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff including his age and any unusual deprivation he may suffer is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessment of damages at certain key points (see Babu Mansa v. Ahmedabad Municipal Corporation 19 G. L. R. 492 ). ( 2 ) WE have pointed out above that in the claim petition damages under this head were assessed by the claimant himself at Rs. 1 10 0 However the actual total claim which included the claim under this head was ultimately substantially reduced. The Tribunal awarded a global amount of Rs. 10 0 under this head. It appears to us that the award under this head is grossly inadequate. ( 3 ) IN Babu Mansas case we have considered the question with regard to assessment of damages under this head in great detail. The claimant in that case was a young boy aged 15 who was engaged in the manual work of excavating sand. The injuries sustained by him were multiple. His right leg was fractured. One of the arms was also fractured. A piece of bone from near the eye-brow was removed. A nail was inserted in the right leg which was shortened to the extent of 1/2 cm. There was limping wasting of thigh and fixed flexion deformity of hip. He was not in a position to sit cross-legged and could squat only with support. His normal gait was lost and the leg could not be bent. The permanent partial disability was assessed at 20%. In that case we held that if all those factors were borne in mind the claimant would be entitled to compensation in the sum of Rs. 15 0 under this head. His normal gait was lost and the leg could not be bent. The permanent partial disability was assessed at 20%. In that case we held that if all those factors were borne in mind the claimant would be entitled to compensation in the sum of Rs. 15 0 under this head. ( 4 ) IN Bhaskarbhai Khandubhai Desai v. Ramanlal Nathubhai Patel A. I. R. 1978 Gujarat 158 the claimant was a young boy aged 12 or 13. He suffered multiple injuries as a result of the accident. There was a crushed injury on right foot with avulsion of the sole and extensive loss of skin substance muscles and tendons on the anterior lateral aspect of left leg. There was a fracture of meta-tarsal second and tarsal bones. There was also a crushed injury on left leg with loss of skin from the anterior part of leg tibia and fibula both bones were visible. There was a very prolonged period of hospitalization and the injuries were so severe that there was every likelihood of the right fore-foot being amputated when the claimant was examined by the expert. In that case it was found that the claimant was unable to place his left leg on the ground and that his right leg had become totally useless. Several operations were performed. The permanent disability was to the extent of 50 to 55 per cent in the right leg and about 10 to 15% in the left leg. In that case after considering the decision in Babu Mansas case a global award under this head was made in the sum of Rs. 22 500 It was pointed out in this connection that the nature of injuries was far severe and therefore pain and suffering and loss of enjoyment and amenities of life were also of a higher order than in the case of Babu Mansa. ( 5 ) THESE two decisions in our opinion give sufficient guidelines for assessment of damages under this head in the present case. Herein we are concerned with an unmarried young man aged about 25. As pointed out above the unfortunate accident has left permanent after-effects on the per son of the claimant. There were four fractures and one of the fractures has left a dent and scar on the right side of the forehead. Herein we are concerned with an unmarried young man aged about 25. As pointed out above the unfortunate accident has left permanent after-effects on the per son of the claimant. There were four fractures and one of the fractures has left a dent and scar on the right side of the forehead. There is partial loss of memory and also some lack of control of movements as indicated by inability to balance himself on cycle on account of the head injury. There is disability in the left arm and both the legs. The disability in the right leg is of a higher order. The left fore-arm is deformed and it has no rotation. It cannot lift any weight. It cannot be raised upto the shoulder. The first cannot be closed or the palm cannot be stretched. There would be difficulty in walking fast Sitting cross-legged or squatting might be possible but not without pain. There are frequent headaches. Sleep is disturbed. There was wasting of thigh. There was permanent disability to the extent of 75% for the person as a whole. According to the medical evidence the disability would last for the life-time. ( 6 ) IT also cannot be overlooked that there was a prolonged period of unconsciousness lasting for about 35 to 40 days immediately after the accident. Three operations were performed during the prolonged period of hospitalization which lasted for a little over three months. There was severe pain during the entire period and even on the date of the trial the wound at the end of the spinal cord had not healed. The suffering therefore continued even upto the date of the trial. ( 7 ) THE evidence discussed above has established that on account of numerous handicaps and deformities the claimants prospects of marriage are likely to suffer. The evidence suggests that whereas prior to the accident there were two or three offers of marriage there was not a single offer after the accident. The chances of matrimony if not altogether lost are bound to be seriously affected. ( 8 ) THE toll which the accident has taken is thus very heavy and its after-effects are multiple. The assessment of damages under the present head has to be made on an overall estimate of the pain suffering and loss of amenities and enjoyment of life on account of the multiple injuries. ( 8 ) THE toll which the accident has taken is thus very heavy and its after-effects are multiple. The assessment of damages under the present head has to be made on an overall estimate of the pain suffering and loss of amenities and enjoyment of life on account of the multiple injuries. An integrated view of the totality of the after-effects of the manifold injuries will have to be taken so as to assess lump sum compensation. ( 9 ) BEARING in mind all the circumstances of the case and taking an overall view of the scale of pain and suffering and loss of amenities and enjoyment of life and in the light of the awards made by this Court to which reference has been made earlier it appears to us that an award in the sum of Rs. 22 500 under this head would be just proper and adequate. For the disfigured and disjointed physical frame with which the claimant will have to learn to live for the remainder of his life likely to run into four decades atleast and for the pain unsightliness inconvenience and lost pleasures and amenities of life an award in the aforesaid sum would be a just compensation. .