(1.) THIS is an appeal by the first defendant in an action for damages for personal injuries. The plaintiff is an advocate practising in the District Court at Kottayam. The first defendant is an incorporated Company, called the Swaraj Motors (Pvt.) Ltd. , which is engaged, among other things, in the operation Of stage carriages. One of its motor buses, K. LK. 3026 was running express service between Ernakulam and Kottayam. At 9-45 A. M. on 9-1-1959, the plaintiff got into this bus at Kaduthuruthy for going to Kottayam. At 10-45, after the bus had proceeded some distance, it capsized at a place called Adichira, While negotiating a curve and giving side for another bus coming in the opposite direction. The plaintiff was thrown off and fell under the bus, as a result of which he suffered a compound fracture of the bone of the lower part of the left leg a lacerated wound on the right toe and an abrasion on the dorsum of the right foot. The plaintiff was immediately taken to the Kottayam District Hospital , where he was given first aid and sent to the Medical College Hospital , Trivandrum for better treatment. He was admitted in this hospital on the same day and he was advised that an amputation of the leg would be necessary. Medical advice was therefore, sought at the General Hospital, Madras; and Dr. M. Natarajan, who was then in charge of the Orthopaedic unit of that hospital gave the opinion that, if the patient was brought to Madras, he could try to save his limb. Accordingly the plaintiff was discharged from the Trivandrum Hospital on 6-2-1959, flown to Madras and admitted for treatment in the Madras General Hospital on 7-2-1959. He was given conservative as well as operative treatments; and was discharged on 7-5-1959. The treatment was successful; but he did not gain normality. On 5-10-1959, he was again admitted in the Madras General Hospital, and treated as inpatient till 25-2-1960. He had to undergo a third course of treatment as inpatient, for which be was admitted in the same hospital on 5-4-1960 and discharged on 24-4-1960. On 6-4-1960, the plaintiff, through his advocate, issued a notice to the first defendants claiming damages for the personal injuries caused to him as a result of the above accident; and on 2-1-1961, this action was instituted.
(2.) IN the plaint, the plaintiff has alleged that the second defendant was the driver of the bus at the time of the accident, that he was the first defendant's employee, that the first defendant failed to provide a careful, cautious and skilful driver, that the second defendant did not drive the bus with due care, caution and skill, that he was guilty of violating the traffic regulations and rates, and that the accident took place as a result of driving the bus rashly and recklessly at fast and furious speed, while negotiating a sharp curve. The plaintiff claimed Rs. 10,000/-on account of amounts already spent for treatment and other incidental expenses, Rs. 2,000/-on account of expenses for future treatment, Rs. 10,000/- for loss of professional income, and Rs. 25,000/-as damages for the pain, inconveniences, loss of enjoyment and shortened expectation of life, and reduced capacity for work. IN all, he claimed Rs. 47,000/-as damages. The second defendant did dot contest the suit. The first defendant filed a written statement, disputing the plaintiff's claim on several grounds. It denied that the second defendant was an employee of the first defendant. At the same time, it refuted all the charges of negligence against the second defendant, and contended that he drove the bus with due care, caution and skill and ability, experience and forethought. It also stated that the plaintiff was standing on the foot-board of the bus, without taking a seat which was offered to him, and that he would not have been injured at all, if he did not travel: standing on the foot-board. The first defendant also denied the plaintiff's claim for all items of damages, and further contended that the suit was barred by limitation.
The learned Subordinate Judge practically upheld all the contentions of the plaintiff. He held that the second defendant was an employee of the first defendant, that the accident took place due to the negligence of the second defendant and that the plaintiff was not guilty of any contributory negligence. The learned judge accepted the plaintiff's version of the sufferings which he underwent, of the treatment that he took, and of the various inconveniences to which he was subjected as a result of the accident. The learned judge treated the plaintiff's claim for Rs. 10,000/-on account of medical and incidental expenses already incurred, Rs. 2,000/-for future treatment and Rs. 10,000/- for loss of professional income, as one for special damages. In support of his claim for medical and incidental expenses, the plaintiff produced an account, Ext. P-19, which was said to have been written by a servant of his, at a time when he could not himself write. Ext. P-19 begins from 9-1-1959, and ends with 23-2-1959. Ext. P-18 is another account, written in the plaintiff's own hand; and this commences from 9-1-1959 and ends with 4- 8-1961. The plaintiff stated in the witness box that, after he became able to write, he copied the accounts in Ext. P-19 into Ext. P-18 and thereafter continued the accounts in Ext. P-18. The plaintiff also produced a number of bills and vouchers relating to some of the items of expenses. At the time of the bearing, the plaintiff filed a statement said to be the total as per Ext. P-18, and giving up a sum of Rs. 1,125. 05 as remote. The total is put as Rs. 11,630. 03. The lower court accepted this statement, and allowed the plaintiff's claim on this account for the above amount. The claim for loss of professional income was reduced to Rs. 7,200/-5 and the general damages claimed was allowed to the full extent of Rs. 25,000. In the result, the lower court gave a decree for Rs. 43,830 with interest at 6% from the date of suit and proportionate costs. On the question of limitation, the plaintiff contended that Art. 36 of the Indian Limitation Act, 1908, applied to the case, whereas the first defendant contended that Art. 22 of the Act applied. The trial court accepted the contention of the plaintiff.
The learned counsel for the appellant did not rightly contend before us that the second defendant was not the first defendant's employee, or that the accident did not take place in the course of his employment. But he contended that the plaintiff was guilty of contributory negligence, as he travelled on the footboard of the bus, though a seat inside the bus was offered to him, and that he would not have suffered any of the injuries, but for the above fact. The learned counsel also contended, rather faintly, that the second defendant was not negligent and that the accident was unavoidable. The latter contention cannot stand in the light of the overwhelming evidence in the case that the bus was heavily overloaded, and that the accident took place while k was negotiating a curve on the road at a speed of about 40 to 50 miles per hour and giving side for another bus coming in the opposite direction. The evidence also shows that, while negotiating the curve, the second defendant lost control of the vehicle due to its high speed, that it went some distance zigzag, and then capsized. The result speaks for itself. The trial court has very elaborately considered the whole evidence, and came to the finding that the accident took place as a result of the rash and negligent driving of the second defendant. It may also be stated in the context that the second defendant was prosecuted, and he was convicted for the offence under s. 338 of the Indian Penal Code for causing grievous hurt by rash and negligent driving. His conviction was also upheld in appeal; and Ext. P-16 is a copy of the appellate judgment. We, therefore, fully agree with the trial court that the accident happened as a result of the rash and negligent driving of the bus by the second defendant. There is also no substance in the contention that the plaintiff was guilty of contributory negligence. While admitting that he travelled as a standing passenger on the foot-board, the plaintiff deposed that the bus was heavily overloaded, that he was constrained to travel in the above manner for want of space in the bus, and that he was not offered a seat in the bus, nor was it possible. We believe this evidence. Regarding the degree of care necessary on the part of carriers of passengers, Simonds Edition of halsbury's Laws of England, Volume 4 contains the following statement at page 174: "the obligation upon carriers of persons is to use all due, proper, and reasonable care, and the care required is of a very high degree. Thus, if passengers are obliged to travel standing, the driver must take this fact into account if he knows or could with reasonable dilige-nce have become aware of it. "
(3.) THE next contention of the appellant's learned counsel was that the amount of damages awarded was highly excessive. He also contended that there was no acceptable evidence regarding the expenses incurred by the plaintiff for medical and incidental expenses, and that the amount decreed on this account was totally unjustified. In Order to appreciate the contentions advanced by the learned counsel, it is necessary to state the correct legal principles applicable in awarding damages for personal injuries. THEre was a controversy whether a master is held liable for damage done by his servant in the course of employment, because his servant has committed a tort, or because he has himself broken some duty which he personally owes to the plaintiff. In broom v. Moorgan (1953) 1 All E. R. 649 Denning, L. J. , said: "the master's liability for the negligence of his servant is not a vicarious liability, but a liability of the master himself owing to his, failure to see that his work is properly and can-fully done. " THE master's, tort theory was unanimously rejected by the house of Lords in Staveley Iron and Chemical Co. v. Jones (1956) A. C. 627. Lord Reid stated:- "it is a rule of law that as employer, though guilty of no fault himself, is liable for damage done by the fault or negligence of his servant acting in the course of his employment. " In Sitaram v. Santanu prasad (AIR. 1966 SC. 167), the Supreme Court said: "the law is settled that a master is vicariously liable for the acts of his servant, acting in the course of his employment. "
In an action for personal injuries, the damages are always divided into two main parts, special damage and general damage. In british Transport Commission v. Gourely (1956) AC. 185, Lord Goddard said: "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 earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which the 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. The basic principle so far as loss of earnings and out-of-pocket expenses are concerned is that the injured person should be placed in the same Financial position, so far as can be done by an award of: money, as he would have been had the accident not happened" The proper compensation of damages is a question of fact in each case. Singlete, J. said in Walden v. War Office (1956) 1 WLR. 51 that "no one knows what is the-right sum of damages in any particular case, and no two cases are alike. The Earl of Halsbury L. C. said in The Mediana (1900)AC. 113: "nobody can suggest that you can by any arithmetic computation establish what is the exact sum of money which would represent such a thing as pain and suffering which a person has undergone by reason of an accident. " Money cannot renew a shattered human frame. Still, the law has said that this is a head of, damage for which monetary compensation can be awarded, and so the Court must do the best it can in the light of such comparable cases as it may consider to be of assistance to it. We will endeavour to examine the measure of damages which the plaintiff is entitled to get in this action in the light of the above principles.;