DAMODHAR GANGADHAR Vs. VISHWANATH

JUDGEMENT

(1.) 1. This appeal relates to the assessment of damages in an action for assault and battery. The defendants found the plaintiff committing; nuisance in a lane adjoining their premises, near a Hindu temple, and within ten paces of their door. They objected to the lane being used for such purposes, and remonstrated with him. An altercation ensued which ended in the defendants chasing the plaintiff as far as his house which was close by and there assaulting him. So far as the infliction of any physical injury is concerned the assault was of a trivial character: a few slaps and 'possibly a kick or two is all that happened. The first Court awarded Rs. 799 as damages and the lower appellate Court reduced this to Rs. 300, Both parties are dissatisfied with this and question the decree here.

(2.) THE first point relates to the competency of this Court to entertain a second appeal about the adequacy of damages. Usually this is a question of fact, and in England, when such an action is tried by a jury the matter is left to them for; that reason: see 10 Halsbury's Laws of England, p. 348, para 640. Therefore ordinarily no second appeal would lie. But a finding of fact may be vitiated in special circumstances by matters which raise questions of law. In the realm of tort, where we in India usually follow the English law, a safe guide to the circumstances in which interference would be justified will be found in those cases in which an English Court of appeal would direct a new trial. I am; of opinion that' several such questions arise here.

(3.) I am of opinion this was wrong. There are two kinds of damages: special and general. The former alone need he specially pleaded. The latter has to _be claimed as a separate and distinct item, but it is enough to claim it in a lump sum no particulars are necessary; no details need be given: see Walsh and Weir on Pleadings in India, pp. 57 and 61 also 10, Halsbury's Laws of England p. 346, para 638, The former authority defines special damages as in general: Money actually expended as a result of the wrongful act, and money which though not spent, has been lost by not being earned, and which might otherwise have been received either under a definite legal right, such as monthly wages, or a payment due under some express contract, or on the other hand, can be estimated as being profits which would on a reasonable calculation based upon past experience have been otherwise made. The losses may be collegnially described as tangible losses, being money which can be earmarked, and sensibly identified and money which has been or would have been handled.