Sharma, J. - (1.) THIS is an appeal by the defendant Kishanlal against the appellate judgment and decree of the learned District Judge, Sikar, dated the 28th of October 1952. It arises out of a suit for damages filed by the plaintiff-respondent Laxminarain against the defendant-appellant Kishenlal on account of certain injuries having been caused to him by the defendant by the beating given by the latter to the former.
(2.) ACCORDING to the plaintiff, beating was given by the defendant to him with lathis on the 26th of December 1947. Four injuries were caused to the plaintiff including the one in the right leg which was a grievous injury. The plaintiff was removed to Sawai Man Singh Hospital, Jaipur, and was treated there. Four injuries were found on his body including a grievous injury in the shape of fracture of both joint at the lower third of the right leg. He had to remain in Sawai Man Singh Hospital for 18 days. He claimed Rs. 260/-on account of the cost of his treatment and other expenses and claimed Rs. 800/- on account of general damages as a consequence of the injuries. The defendant denied that he had caused any injury to the plaintiff. He also denied that the plaintiff was entitled to any damages. Learned Civil judge, Neem-ka-Thana who tried the suit, partially decreed the suit awarding him Rs. 800/- on account of general damages and Rs. 185/1/- on account of treatment and other expenses, by the judgment dated the 30th of July 1952. The defendant went in appeal and the learned District Judge, Sikar, by his judgment dated the 28th of October 1952 reduced the amount of general damages from Rs. 800/- to Rs. 500/- and thus gave a decree for the recovery of Rs. 685/1/- in all. The defendant has come in second appeal. I have heard Shri R. S. Purohit on behalf of the defendant-appellant and Shri B. K. Bhargava on behalf of the plaintiff-respondent. It has been argued by Shri Purohit that it was not proved by the evidence on the record that the defendant had caused any injury to plaintiff. It was argued that out of the four witnesses, all excepting the plaintiff, himself was disbelieved by the lower courts and the courts were not justified in relying upon the evidence of the p!aintiffalone. Further it was argued that the plaintiff failed to prove that he had suffered damages to the extent of Rs. 185/1/- on account of treatment and other expenses. Finally it was argued that the sum of Rs. 500/- on account of damages for bodily pain and mental agony as a result of the injuries was awarded without any evidence and was in any case excessive It was argued that the learned lower appellate court has said that the plaintiff had failed to prove the loss which he suffered in his business, and that there was no evidence abut loss of earning and loss of prospect of lucrative employment and shortened expectation of life. Under these circumstances, it was argued that the lower appellate court ought not to have awarded Rs. 500/- as damages for bodily pain and mental agony. On behalf of the respondent, it was argued by Shri Bhargava that so far as the question of causing injuries is concerned, this is a question of fact and has been decided by both the lower courts in favour of the plaintiff on evidence produced. This question cannot be gone into in second appeal. As regards the amount of Rs. 185/1/- on account of treatment and other expenses, it was argued that this point was not pressed before the first appellate court and therefore the appellant could not raise this question in second appeal. As regards damages for bodily pain and mental agony, it was argued that it was proved that the defendant caused four injuries to the plaintiff and one of them was grievous. On proof of this, the plaintiff became entitled to damages. As regards the quantum, it was argued that such questions cannot be weighed in golden scales and the lower courts' discretion cannot be interfered with in second appeal unless the damages were inordinately excessive, or were awarded on no principle. A ruling of Calcutta High Court in the case of Manindra Math Mukherjee vs. Mathuradas Chaturbhuj (1), was relied upon. I have considered the arguments of both the learned counsel. So far as the factum of beating and causing injuries to the plaintiff is concerned both the lower courts have concurrently held that the defendants gave a beating to the plaintiff and caused him four injuries including one grievous injury. This finding is based upon the evidence of the plaintiff, coupled with medical evidence and in second appeal it cannot be interfered with. As regards the damages of Rs. 185/1/0 on account of expenses of treatment etc. , the judgment of the lower appellate court shows that this point was not seriously contested before it. In this Court also, learned counsel for the appellant was not able to show as to how interference can be made with this finding in second appeal. I, therefore, do not find any ground to interfere with this part of the judgment of the lower appellate Court. Coming to the question whether the lower appellate court court was justified in awarding Rs. 500/- as damages for bodily pain and mental agony, on account of the beating given to the plaintiff and the four injuries including the one grievous caused to him, it is very difficult in such cases to measure exactly as to what should be the quantum of damages. It has been stated in Winfield on Tort, Sixth Edition, by T. Ellis Lewis (Page 184) - "the assessment of damages in cases of personal injuries is an extremely difficult task, in which the court is often being asked to measure the immeasurable. For, save with regard to financial loss, such as joss of earnings, damages can rarely constitute actual compensation, whether £ 50,000 or £100 be award. An infinite veriety of elements have to be taken into consideration; pain and suffering, whether past, present or future, the loss of some of the amenities of life, as where the plaintiff is made dependent, wholly or partly on others in some matters; disfigurement, shortening of life, shock and inability to take part in games and sports, In addition the age of the plaintiff must be taken into consideration. While there can be no standardisation of damages, it is the duty of the court to see that the general principles which have been applied in decisions in comparable cases are followed, so as to insure as far as possible the same approach in all cases of personal injuries. " In the Law of Damages & Compensation by C. Kameswara Rao, 2nd Edn. (1953), at Page 98, the learned author on a consideration of several decided cases observed, as follows: - "torts are divisible into two kinds when considered from the standpoint of the proof of damage required in the action (1) Torts in which no action lies without proof of special damage: - In such cases damage is said to be the gist of the action, as in slander not actionable per se, negligence in cases where there is no absolute duty to be careful, deceit, fraud, public nuisance etc. (2) Torts in which general damages, in addition to special damages, if any, alleged and proved, are recoverable; - lt such cases damages are said to be at large. In the former class of easels the damages recoverable represent the amount of loss directly and naturally flowing from the wrongful act which the plaintiff is bound to allege and prove. Where damages are at large, as in actions for libel, trespass, seduction, false imprisonment, assault, etc. damage is not the gist of the action that is, the wrongful act and not the actual damage constitutes the cause of action, and the plaintiff may be awarded general damages, though sometimes they may be merely nominal, and even though the special damage alleged may not be proved. In other cases, where, under the head of general damages, the plaintiff is entitled, not merely to nominal damages as upon a violation of right, but to substantial damages for the injury sustained, the Court is not restricted to awarding the actual pecuniary loss arising from the wrong, but may award a sum which is appropriate to the severity or the grievous character of the wrong committed. " In Pollock on Torts, 14th Edn. , by P. A. London (Page 152), learned author says that - "in cases of personal injury and consequential damage by loss of gains in a business or profession it is not possible either completely to separate the elements of damage, or to found the estimate of the whole on anything like an exact calculation. There is little doubt that in fact the process is often in cases of this class even a rougher one than it appears to be, and that legally irrelevant circumstances, such as the wealth and condition in life of parties, have much influence on the verdicts of juries: a state of things which the law does not recognize, but practically tolerates within large bounds. In Clerk and Lindsell on Torts, (11th Edn.), Page 395, the learned author says that - "in cases of personal injury the assessment of damage is more difficult to ascertain with certainty. Apart from special damage, such as loss of earnings, the damages are at large. Although no damages are recoverable in respect of mere mental suffering unaccompanied by physical injury, there can be taken into account in assessing the general damages, the pain and suffering undergone and which may occur in the future, the loss of some of the amenities of life. " In the ruling in the case of Manindra Nath Mukherjee vs. Mathuradas Chattur Bhuj (1), relied upon by the learned counsel for the respondent, it was held that - "in the case of a bodily injury considerations which may be permitted, in circumstances where they arise, to influence an assessment of damages include; (1) pain and suffering; (2) loss of earning or loss of a prospect of lucrative employment; (3) a shortened expectation of life provided that life held a positive measure of happiness. In that case, damages awarded were Rs. 5,000/- and one or two more factors besides the bodily pain, the physical discomfort and mental anguish were taken into consideration. But this ruling is authority for the view that in case of physical injuries the effects of bodily pain, the physical discomfort and mental anguish can also be taken into account in awarding damages. In the present case, both the lower court have held on the evidence in the case that the plaintiff sustained four injuries and one of them was grievous and that injury had diminished the strength of the leg. They have also held that on account of the injury, the plaintiff had to remain in hospital for 18 days and that he had suffered bodily pain and mental agony. These were the relevant factors which could be legally considered in the awarding of the damages and the lower appellate court in its discretion considered that Rs. 500/- would be adequate in the circumstances of this case. I do not find any such illegality in the judgment of the lower appellate court that I should be induced to interfere with this quantum of damages in second appeal. The case did not call for only nominal damages because the plaintiff suffered substantial bodily and mental pain. Under these circumstances, a sum of Rs. 500/- cannot by any means be said to be very excessive. I do not find any force in this appeal. It is dismissed with costs to the contesting respondent. . ;