The Judgment of the Court was delivered by

Pratibha Bonnerjea, J.:— The plaintiff used to carry on business under the name and style of Isis Coal Company. On 6.1.66, at about 11.25 in the morning, the plaintiff was driving his motor car No. WBD 4095, towards the North along Bentinck Street, Calcutta, when the car had to be stopped at the crossing of Bentinck Street and Lall Bazar Street due to traffic signal. While the car remained stationary, the defendant's tram car No. 459, driven by a driver with identification No. 648 and a learner driver, came rashly at a very high speed along route No. 32 ignoring the red traffic signal and collided with the plaintiff's car from behind causing thereby extensive damage to the rear portion of the said car. Due to severe impact, the plaintiff also suffered personal injuries and shock resulting in fracture of the right metacarpal bone of the right hand and extreme anxiety syndrome with continuous headache. The plaintiff, instituted the present suit claiming Rs. 22,114 by way of special damages and Rs. 2,00,000/- by way of general damage. In the written statement, the defendant admitted the collision between the said tram car and the plaintiff's motor car but alleged that the accident was caused due to contributory negligence of the plaintiff in rashly overtaking the said tram car and placing the motor car in front of it. The rest of the allegations in the plaint including the alleged claims for damages were all denied and disputed. The following issues were raised at the trial:

(1)(a) Was the accident occasioned by the defendant's negligence as alleged in paragraph 5 of the plaint?

(b) Did the said accident happen on account of the contributory negligence of the plaintiff as pleaded in the written statement?

(2) Did the plaintiff suffer any injury on account of the said accident as alleged in paragraph 7 of the plaint?

(3)(a) Did the plaintiff suffer any damage on account of the said accident as pleaded in the plaint?

(b) If so, is the defendant liable for such damages?

(4) To what relief, if any, is the plaintiff entitled?

2. There were three witnesses on behalf of the plaintiff including the plaintiff himself. No oral evidence was adduced on behalf of the defendant. The plaintiff proved that the accident was caused due to rash and negligent driving of the tram car by the defendant's said drivers. It is not disputed that the drivers were on duty at that time. The onus to prove contributory negligence under issue No. 1(b) was on the defendant who did not give any evidence and did not discharge the said onus. I, therefore, accept the plaintiff's evidence on this point. The next question is what were injuries plaintiff had suffered on account of this accident? The plaintiff and his witness Naba Gopal Basu gave evidence regarding the damage to the rear portion of the plaintiff's motor car and the expenses incurred in repairing the same. The witness N.G Basu was one of the partners of the firm Auto Electric Mechanic at the relevant time. The vehicle was repaired by this firm and the witness Basu has personal knowledge of the same. Exhibit-J consists of two bills in connection with this repair. These two bills conclusively proved that Rs. 2,021/- was spent for repairing the said motor car. So far as the question of personal injury is concerned, exhibit A, is an out door patient ticket dated 13.1.66 issued to the plaintiff by the Medical College Hospital, Calcutta, showing that the right metacarpal bone of plaintiff's right hand was fractured and plastered. During hearing I found that the right hand ring finger of the plaintiff was deformed due to this accident. The injury caused to the right hand and the damage of the car were not disputed by the defendant's counsel. But a serious dispute was raised regarding the head injury alleged by the plaintiff in his testimony. According to defendant's counsel this alleged head injury was not mentioned in the plaint or in the medical certificate dated 19.1.66 (Exhibit H). Hence there was a clear contradiction between the pleading and the proof on this point. The plaintiff in his testimony said that he had become benumbed and dazed after the accident. (Q. 8 & 16). In cross-examination it was suggested to the plaintiff that he was fully alert mentally when the accident occurred as otherwise he could not have remembered the number of the tram car or the identification number of the driver. In answer, the plaintiff said that he got these numbers from the persons who helped him at the time of the accident. The plaintiff's complaint about the accident to the Officer-in-Charge, Hare Street Police Station, dated 8.1.66, (Part of Exhibit E) which is a contemporaneous document, corroborated this oral evidence of the plaintiff. It is recorded that the traffic police present at that time took down the numbers. According, to the plaintiff's witness Dr. Mukherjee, who had examined the plaintiff several times, the plaintiff had a jolt and shock in his brain due to that accident causing frontal lobal syndrome similar to anxiety syndrome (Qs. 15-24). Exhibit H., a medical certificate dated 19.1.66 issued by Dr. Mukherjee within 10 days from the date of the accident recorded that the plaintiff had been suffering from “anxiety syndrome”. It is true that “head injury” was not specifically mentioned in the certificate or in the plaint but the effect of head injury “anxiety syndrome” was clearly recorded in these two documents. I am, therefore, unable to accept the submissions on behalf of the defendant that there is a variation between the pleading and the proof on this point. According to Dr. Mukherjee the plaintiff's personality has been permanently deranged resulting in lack of concentration, irritable temper and slurred speech (Q. 27). From the defendant's letter dated 17.1.66 (part of Exhibit E) written by its claim officer, I find, that plaintiff was examined by the defendants medical officer on 20.1.66 who had submitted a report. This medical report was disclosed by the defendant being item No. 6 in its affidavit-of-documents affirmed on 6.11.67 by one Debabrata Khastgir. The defendant had not given inspection of their documents to the plaintiff and as such, I, by an order dated 5.8.80 directed the defendant to give inspection of its document to the Advocate on record of the plaintiff including this item No. 6. The defendant did not give inspection of item No. 6. As a matter of fact, the defendant did not make any use of this medical report nor did the defendant include this report in the judges' brief of document.

3. The plaintiff's counsel, therefore, submitted that an adverse inference should be drawn against the defendant for suppressing this vital document from court. He relied on Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Others . A.I.R 1968 S.C 1413., in support of his contention. In paragraph 5 of this case, it was held as follows:

“Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from Court the best evidence which is in their possession which could throw light upon the issue in controversy and to rely upon the abstract doctrine of onus of proof.”

4. This medical report is extremely vital to the issue to be decided by me in this case and in that view of the matter I accept this submission of the plaintiff's counsel that this medical report, if produced, would have gone against the defendant and would have supported the plaintiff's case. I have also no reason to disbelieve the evidence of Dr. Mukherjee who is a distinguished neurologist and is a completely disinterested witness. I, therefore, hold that the plaintiff suffered personal injuries as alleged in paragraph 7 of the plaint on account of the said accident.

5. The last issue to be decided in this suit is the quantum of damages suffered by the plaintiff. Mr. Sarkar, counsel for the defendant, submitted that the plaintiff's claim for Rs. 9,000/- by way of damages for loss of business for the period of 90 days should not be awarded on the basis of his oral evidence only as no books of accounts relating to the business was disclosed in this proceeding. I accept this submission on behalf of the defendant. The plaintiff's claim for Rs. 11,093/- is also challenged by the defendant's counsel on the ground that the plaintiff had gone abroad not for treatment by Dr. Kraus as alleged by him but on a business or a pleasure trip under exchange programme. But Dr. Mukherjee said that the plaintiff was dissatisfied with Indian neurologists and wanted to go abroad to be treated by a top foreign neurologist. Dr. Mukherjee who had worked under professor R.W Klingman in America, suggested his name but the plaintiff did not have the money to go to America. He wanted to go to Vienna and Dr. Mukherjee had suggested the name of Dr. Kraus. The plaintiff said in this evidence that he met Dr. Kraus in Vienna, got himself examined by him and Dr. Kraus gave some written advice which the plaintiff had shown to Dr. Mukherjee. This written advice could not be disclosed in this proceeding as it was lost. Dr. Mukherjee in his testimony said that he found from this written advice that his diagnosis was confirmed by Dr. Kraus. According to Dr. Mukherjee complete recovery in this type of case is very rare. In 10% cases, recovery may be spontaneous but not due to any treatment (Q. 61-62). This oral evidence of the contents of the lost written advice is a legal evidence on record and I accept the same. I have no doubt, that the plaintiff went abroad mainly for his treatment. He had withdrawn Rs. 10,000/- from bank to meet his expenses for going abroad. Exhibit C is the counter foil of the cheque dated 8.3.66 He left India on 9.3.66 His appointment with Dr. Kraus was fixed on 26.3.66, so he had plenty of time at his disposal to visit some countries in Europe, which he did. There is no evidence on record what expenses plaintiff had incurred for his treatment in Vienna. The plaintiff is not entitled to recover the expenses which he had incurred for visiting countries in Europe. Out of the sum of Rs. 11,093/- claimed in the suit, the plaintiff admittedly spent only Rs. 8,000/- for purchasing the air ticket. He also spent Rs. 1,093 on his treatment in India. Hence he will be entitled to recover Rs. 9,093/- out of Rs. 11,093/-.

6. Counsel for the defendant further submitted that the plaintiff could get only a nominal damage under the head of “general damage”. According to him general damage is always assessed on the basis of plaintiff's incapacity to work in future due to the accident and consequential loss of future income. “General damage” is, therefore, always linked up with loss of future income. In the present suit the plaintiff has claimed for loss of income only for 90 days and not for any other period and as such he should not be allowed anything for loss of income in future. He further submitted that nothing could be recovered for mental suffering and pain. But it appears from decided cases that damages in this form of action are very much “at large” and it is futile to make an attempt to define the limits to which the amount may go. All that can be said is that the amount of compensation must be fair and reasonable. The different heads under which damages could be recovered in this type of action were enumerated in Dr. Phillips case where Cockburn, J., said:—

“We think a jury cannot be said to take a reasonable view of the case unless they consider and take into account all the heads of damage in respect of which a plaintiff complaining of a personal injury is entitled to compensation. These are, bodily injury sustained; 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 attempts to effect a cure or to lessen the amount of 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 remainder of his life.”

7. The damages mentioned above can be brought under three broad heads, viz. (1) Personal suffering and loss or enjoyment of life, (ii) Actual pecuniary loss or expenses reasonably incurred by the plaintiff for treatment and incidental thereto and (iii) Probable future loss of income by reason of incapacity or diminished capacity to work. In the present case, the plaintiff claimed “general damage” under the first head for personal suffering and loss of enjoyment of life and not for his incapacity for earning in future under head No. (iii). Hence the submission of the defendant's counsel is off the point. In support of this other submission that nothing is recoverable for mental shock and pain, he relied on Clark & Lindsell on Torts, 14th Edn., Articles 875-876 at pages 499-502. But a careful reading of these two articles and the cases enumerated therein, do not support this contention of the defendants counsel. Mental pain or shock if it resulted in physical injury as its consequence, is always actionable as will appear from Article 875:—

“But if as a result of nervous shock or terror the plaintiff suffiers physically in health, damages for that injury are recoverable.”

8. In the present case the plaintiff wants to recover on the ground that due to the accident his health has been permanently impaired. The severe jolt during accident caused severe mental shock which permanently affected plaintiff's health by causing frontal local syndrome and derangement of his personality. According to the plaintiff's counsel lump sum damages should be awarded to the plaintiff and in support of his contention, he cited Heaps v. Perrite Ltd.. This is a case on negligence. The plaintiff had lost both his hands in accident. The trial court had awarded £10,000/- by way of damages. The defendants preferred appeal on the ground that the amount was excessive but the appeal court refused to interfere holding:

“We have to take into consideration the fact that even if artificial limbs were fitted, he will be for the rest of his life a handlessman unable to do the ordinary work that every body or man requires to have done—dressing himself and undressing himself and doing the various things which are necessary even in health. We have also to take into account not only the suffering which he had suffered immediately after the accident but the suffering that he will have throughout his life in future, the constant necessity of having assistance in the various things that he has to do for his own purpose, apart from earning money. Also, the fact that the joy of life will have gone from him. He cannot ride a bicycle, cannot kick a football. At any rate if he can kick a football, he cannot catch it. He cannot have any of the usual forms of recreation which appear to the ordinary healthy man although, possibly, with assistance he might go to a football ground and watch other people playing football.”

9. The next case referred to by the plaintiff's counsel is Michell v. Melholland . 1971 2 All E.R 208.. In this case the plaintiff received severe head injuries with fracture of right femur. He had defused brain damage which affected his speech, and vision and caused paralysis in the left side of his body. He was only 32 years old at the time of the accident. This accident caused permanent organic impairment which resulted in severe degree of intellectual deterioration with personality change. He was having frequent spasm of rage. The trial court awarded inter alia £ 16,500 to the plaintiff for pain and suffering and loss of amenities of life. The defendant preferred an appeal. The appeal court increased the amount to £20,000 and still held at page 1222:

“On any view of it, it must be accepted that no sum of money can really compensate the plaintiff for what he has lost”

10. The next authority relied on is Munkmans, Damages for Personal Injuries and Death, 4th Edn., at pages 108 and 113.

“Page 108:— Under the heading ‘pain and suffering’ must be included mental distress—in particular the distress which a permanent cripple must experience because he is constantly dependent upon the care of other person, or because his enjoyment of life and possibly its duration are cut short.

Page 113: Damage may be awarded for the loss of the pleasures or amenities of life, either permanently for example—or temporarily—as by mere detention in hospital or in bed for a period. This is a distinct element altogether from pain and suffering or from loss of earning capacity.”

11. Several other authorities were cited on this point on behalf of the plaintiff but I don't think it is necessary to deal with each of them specifically. The aforesaid authorities are sufficient to support the submission of the plaintiff's counsel that a plaintiff in this type of action is entitled to recover for pain, suffering, derangement of personality and loss of amenities of life. The facts of this case established that in 1966, the plaintiff was a tenacious and a successful businessman with active habits and pleasant manners. He was then 50 years old. But due to this accident, the plaintiff's right ring finger became deformed for ever, the anxiety syndrome and/or frontal lobal syndrome caused by the accident resulted in plaintiff's losing permanently his power of concentration to a certain degree, he developed slurred speech and irritable temper with change of personality. The plaintiff also complained of defused and dull headache all the time. In this view of the matter and on the facts of this case I hold that the general damage of Rs. 40,000/- will be reasonable compensation. The plaintiff will also get Rs. 2,021/- for repair of car, Rs. 1,093/- for treatment in India and Rs. 8,000/- for going abroad for treatment aggregating to Rs. 51,114/-. In the premises, the issues are answered as follows:

Issue No. 1(a)—Yes.

Issue No. 1(b)— No.

Issue No. 2—Yes.

Issue No. 3(a) and (b)—Yes.

12. As a result, there will be a decree in favour of the plaintiff against the defendant for Rs. 51,114/-, interim interest on the said sum at the rate of 3% per annum, considering the age of the suit interest on Judgment at the rate of 6% per annum and costs, certified for two counsels.

13. Suit decreed with costs.