Vinayaga Mudaliar v. Parthasarathy Aiyangar

The Chief Justice. — I think there is no ground whatever for the objection taken to the action of the learned Judge in allowing an amendment of the plaint as regards the amount claimed as damages. The application was made at the beginning of the trial when the learned Judge reserved his decision until he had heard more of the case. When he granted it at a later stage, it was not opposed though the order was not made by consent, The fact that it was not opposed goes to show that the general feelings of those who had heard the evidence was that an award of Rs. 5,000 would inadequate. The only question then is whether the sum of Rs. 12,000 awarded by the learned Judge is excessive. The principles on which compensation should be awarded in these cases is fully discussed in the latest edition of Mr. Beven's well-known book on Negligence. The observations of Parke, B. in Armsworth v. South Eastern Railway Company, and of Brett, J, in Rowley v. London and North Western Railway Company were approved generally by the Court of Queen's Bench in Phillips v. London and South-Western Railway Company(4) and by the Court of Appeal in 5 Q.B.D 78. Giving effect to those rulings, Lord Coleridge, C. J, when the case was retried before him, told the jury that the amount of compensation must be fair and reasonable but that an absolute compensation was not the true measure of damages and in the Court of Appeal, Bramwell, L.J in Phillips v. London and South-Western Railway Company(5) stated that the direction was such as was usually given and was right. Pace Mr. Beven therefore I think that the proper ruling is that something fair and reasonable but less than an absolute compensation should be given in these cases. The later decision in Johnston v. Great Western Railway Co. was concerned with the question as to whether the Court of Appeal should interfere with the finding of a jury in a case of the kind, and the rule laid down was that it would do so when it was clear that the jury had disregarded the direction of the Court. When the damages are assessed by the Court and the Court gives its reasons as in the present case, the Appellate Court can of course form its own opinion on the reasons given but should in my opinion be slow to interfere unless in its opinion the damages awarded are clearly excessive or inadequate.

Coming now to the facts, there can be no doubt that owing to the admitted negligence of the defendant, the plaintiff sustained dreadful injuries and was reduced to the pitiable condition referred to by the learned Judge and that his prospects in life were completely ruined. He is therefore entitled to the largest compensation that could properly be awarded to any one of his position and prospects in life; As regards this part of the case I cannot help thinking that the learned Judge has taken a rather too favourable view. I accept the statement of the learned counsel that the plaintiff impressed the Court as a bright and intelligent boy. None the less, he was a back-ward boy who would not have completed his school course and become eligible for admission to a college, until three years after the average age. This may be assumed to have been due to his father's want of means, but that want of means would have been an even more fatal obstacle to his completing a college course and obtaining a degree in arts to say nothing of law, so as to put him on an equality with other educated boys of his age and caste. No doubt he had a distant connection who was in a position to help him, and such help is not infrequently but by no means invariably given. Help from this quarter appears to me to be too problematical to take into account in assessing damages. His father was practically without means. One brother is a “failed” matriculate, who is now in the Government service and debarred by his failure from rising to better paid appointments. The other brother was unemployed at the date of the trial but had been a clerk in a mercantile firm. On the whole the plaintiff's prospects were by no means so bright as those of any young Iyengar boy with parents in comfortable circumstances and able to afford him the best educational advantages. The learned Judge, as I understand him, was of opinion that Rs. 6000 or Rs. 7000 would not reproduce more as an annuity than an averagely successful person in the plaintiff's position would have earned, but he has felt entitled to double that sum having regard to the sufferings he has undergone and will undergo and the permanent disabilities he has to suffer from. The plaintiff is no doubt entitled to compensation for the pain and sufferings he has undergone and will have to undergo as well as for the loss of his career but this award in my opinion is something more rather than something less than an indemnity as it ought to be according to the authorities to which I have referred. Rs. 6,000, represents an annuity starting at much more than the plaintiff would have been likely to earn after many years of employment. I also think that having regard to the authorities I have referred to, it is going too far to double the amount awarded under this head as compensation for pain and suffering. My learned brother sitting with me who is in a better position than I am to judge of the prospects of a boy in the plaintiff's position holds this view even more strongly than I do. In the result, however, we have agreed that the damages should be reduced to Rs. 6,000. Otherwise the appeal is dismissed with costs.

Sadasiva Aiyar, J.—The defendant is the appellant. He is trustee of a temple. The falling of the temple door through the negligence of the temple servants has injured the plaintiff who was about 16 years old at the date of suit in a very serious manner as spoken to by the plaintiff's 4th witness. Dr. Gibson The plaintiff may “never be able to walk by himself without clutches or human aid” and has also “lost control of the muscles” controlling the excretion of the faæes and the discharge of urine. He sued through his vakil for recovery of damages estimated at Rs. 5,000. He afterwards changed his legal adviser and counsel instructed by Attorneys appeared for him at the trial. The plaint was allowed to be amended into a claim for Rs. 12,000, and the learned Judge gave a decree for damages for Rs. 12,000.

It is clear from the evidence that the plaintiff's father is practically a pauper who earns nothing. The plaintiff's elder brother who was unable to pass the Matriculatton Examination was earning Rs. 30 a month and was probably the support of his father and of the plaintiff. The plaintiff was studying in the third form when he got his injuries and I think he must be treated as a backward boy as even if he continued to have his promotion regularly, he would have got his secondary school leaving certificate only in his 19th year. The learned Judge says “I am not going to give this boy an annuity to compensate him for the loss of his career which would bring him more than an averagely successful person would have earned.” But I think in giving a judgment for Rs. 12,000 he has given him such an annuity and even an annuity giving a larger income than he could reasonably expect. Considering the plaintiff's previous scholastic career and the intelligence to be expected of a person born in the family to which he belongs, he might be expected to earn Rs. 20 to 30 a month after he became a major. Even in that view, he cannot be said to be entitled to a sum which would give him an annuity of Rs. 360 a year. The measure of damages in a suit like this is discussed in Mayne on Damages (8th Edition), pages 541 to 544. In one of the case cited Phillips v. London and South-Western Railway Company confirmed on appeal in 5 Q.B.D, 78, a plaintiff who was getting a secured income of £6,000 to 7,000 per annum in medicial practice and who was supposed to have been permanently disabled from earning that income was given only £7,000 as damages by jury, that is, a sum giving an annuity of £350 at 5 per cent. The summing up of Mr. Justice Field in that case was approved of in appeal, (though a new trial was ordered on the ground that the damages did not even cover actual expenses incurred by plaintiff). The rule in these cases is: “You are not to give the value of an annuity of the same amount as the plaintiff's average income for the rest of the plaintiff's life. If you gave that you would be disregarding some of the contingencies. An accident might have taken the plaintiff off within a year. He might have lived on the other hand for the next twenty years, and yet many things might have happened to prevent his continuing his practice.” So also in another case, Parke, B. said: “It would be most unjust if whenever an accident occurs juries were to visit the unfortunate cause of it with the utmost amount which they think an equivalent for the mischief done. Scarcely any some could compensate a labouring man for the loss of a limb, yet you do not in such a case give him enough to maintain him for life.” Armsworth v. South-Eastern Railway Company. Bearing these observations in mind, I think the sum of Rs. 5,000 which was demanded by the plaintiff's father in the lawyer's notice sent before the institution of the suit and which was also claimed as reasonable damages legally claimable in the plaint before its amendment, is the amount which a reasonable jury ought to have given to the plaintiff and I would therefore hold there was no sufficient ground for the learned Judge to have allowed the plaintiff to amend the plaint by asking for higher damages or for allowing any portion of the additional amount claimed. I cannot however state that the amendment allowed was illegally granted.

Mr. Grant for the Respondent argued that Mr. C. P. Ramaswami Aiyar in the Lower Court said that provided his client was not made personally liable and provided the damages are given against the temple, he would not object to the amendment of the plaint. Mr. Ramaswami Aiyar on the other hand said that he remained silent as no formal application to amend was made. Anyhow, I think that the interests of the temple cannot be said to require less protection than the personal interests of the defendant-trustee. In the words of Parke, B. “the unfortunate” temple ought not to be “visited” “with the utmost amount which” a too compassionate jury might think “equivalent for the mischief done.” The question of the quantum of damages in these cases is not one that can be accurately and mathematically answered. I would have been inclined to assess it at only five thousand rupees or even less if I had tried the case as a single Judge exercising solely the function of the jury. Where two Judges sitting on an Appellate Bench have to decide on a question of this kind, it is clearly desirable that in exercising the functions of a jury, the Bench should come to an agreement on a matter in which there is room for the exercise of a large though not wholly arbitrary discretion. We have (as stated in the judgment of My Lord) agreed to the award of Rs. 6,000 as damages in this case. I would, therefore, modify the decree of the learned Judge by substituting Rs. 6,000 for Rs. 12,000. As, however, the defendant in his appeal memorandum contended that Rs. 2,000, was a sufficient compensation and considering also the nature of the case, I would, as regards costs, not interfere with the Lower Court's award in favour of the plaintiff and I would also direct the appellant to bear the Respondent's costs of this appeal.

P. V.Decree modified.