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DAMAGES

Updated: Dec 19, 2021

Author: K. Mihira Chakravarthy, I Year of B.A. L.L.B from Damodaram Sanjivayya National University (DSNLU).


Damages play an important role in awarding the compensation to the plaintiff after the tort is committed. It is one of the remedies which the injurer/ the plaintiff can avail. The damages are paid when there is an infringement of legal right and can go to the court i.e., Injuria Sine Damno. The awarded damages are unliquidated where the parties do not know each other or don’t decide the amount before the commencement of the tort. The word damage and damages are two words which look alike though the meanings are different. Damage means the loss suffered by the wrongful act and damages is the compensation given to the injured by the injurer. The court awards the damages in optimum way. It isn’t neither over-compensated nor insufficient instead damages awarded are reasonable and sufficient. According to Article 226 of the Constitution, is a remedy in the public law. Whereas, the remedy lies in the ordinary law by a civil suit in law of torts and also the burden of proof lies on the plaintiff to claim the damages. An unascertained or unliquidated damage is the hallmark of tort actions.


There are types of damages awarded to the injurer like Nominal, Exemplary, Contemptuous, Aggravated, Compensatory damages.


There are three questions which the court enquires before awarding the damages:

  1. Was the damage alleged caused by the defendant’s wrongful act?

  2. Was it remote?

  3. What is the monetary compensation for the damage?


For a tort to be awarded damages, the Causation (‘but for’ test) which is to prove whether the wrong is caused any difference to the outcome of the result or not; Remoteness which include foreseeability which is the mitigation of the injury earlier itself and directness, that means the compensation for the amount of wrong they’ve committed.


The damages are the remedies which a claimant is awarded for the suffering because of the wrongdoer. The main objective in the civil litigation is to claim the damages.


Earlier, there used to be the direct redressal of an eye for an eye/ tooth for a tooth’. But later, it caused a lot of dissatisfaction and unjust in many situations and then raised the requirement of the monetary compensation for the civil wrong. Which was quite easy to determine in many cases especially in the torts.


The Roman law consisted the monetary compensation for the wrongs from very long and also this remedy was observed in the early development of the English law. Gradually, it became the primary remedy of the common law courts and the jury gave a lot of prominence in Anglo- American legal procedure. A body of legal doctrine decides the compensations that should be awarded to the particular wrongs.


Under tort law, the compensation is usually money value of losses or injury incurred by the plaintiff. The money value of any losses or injuries sustained as a “natural and proximate” result of the wrongful act. Since in the common law courts, a particular wrong can be challenged before the court only once, the damages are given to the plaintiff on basis of the injury suffered, injury which effects also the future.


For example: If the plaintiff has incurred a damage due to the negligence of the defendant, then the court after the examination of all the facts and evidences, decide the damages that are to be paid to plaintiff including the loss suffered, medical bills, future medical expenses that might occur due to the that wrong, loss of earning capacity etc., and also in some jurisdictions, the attorney fees are also taken from the defendant. If the defendant has conducted a wrongful act with a malicious intent, then the court might award the plaintiff with the punitive damages. In order to discourage the society’s moral disapproval of the wrong done by the wrongdoer himself (i.e., the defendant).


TYPES OF DAMAGES

In a suit for damages in tort case, the court awards pecuniary compensation to the plaintiff for injury or damage caused to him by wrongful act of defendant. Various types of damages are:

  • Nominal damages: When the plaintiff suffers the infringement of a legal right but no physical damages i.e., Injuria Sine Damno, then the nominal damages are awarded to him/ her.

In the case of Ashby v. White, the plaintiff was stopped from voting his representative but still the representative he wanted to vote has won. Here, even though the representative won and suffered no loss, his legal right was violated and the compensation was paid as damages.

  • Contemptuous damages: The court has very low opinion on the plaintiff’s claim, that even when the plaintiff has suffered loss, it was because of the earlier provocation by the plaintiff to defendant which caused injury. The court doesn’t fully compensate the plaintiff.

  • Compensatory damages: These damages are awarded to the plaintiff to get back to the situation before the commencement of the tort. These damages are easier when there are monetary losses as the same amount can be given to the plaintiff by the defendant.

  • Aggravated damages: These damages are awarded by the courts, when the plaintiff goes through pain, agony and loss of self- esteem which have no monetary value. So, the additional damages are awarded other than pecuniary damages.

In Ramesh Kumar Sharma v Smt. Akash Sharma, while filing divorce proceedings, the wife makes false allegations against her husband that he had illicit relations with his family member in the panchayat. She has made false allegations in the written statement. Taking that into consideration, the husband filed a case in Himachal Pradesh High Court and he was awarded Rs. 1.5 lacs as damages.

  • Punitive/ Exemplary damages: These damages are awarded to the plaintiff when the tort conducted by the defendant is severely gross and to punish him from doing that and also others, the court decides to award Exemplary damages to the plaintiff.

According to Lord Devlin in the case of Rookes v. Barnard, he expressed those exemplary damages confuses the civil and criminal function of law and also held only in these 3 cases damages are granted

  • Where the plaintiff has been aggrieved by oppressive, arbitrary or unconstitutional action by servants of the government, “though not when he is subjected to similar treatment by corporation’s or private individuals.”

  • Where the defendant’s conduct “has been calculated by him to make a profit for himself which may well exceed the compensation payable by him to the plaintiff Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay”

  • Exemplary damages are exercised by the statute.


In the case of Bhim Singh v State of J&K, the exemplary damages were given to Bhim Singh as he was wrongfully detained while going to the Assembly session. Being the issue challenged in the Supreme Court, it ordered the Government of J&K to pay Rs 50,000 as damages for the wrong within 2 months.

  • Prospective damages: These damages are claimed by the plaintiff due to the defendant’s wrong which might cause future hindrances to the him and which has actually not occurred during the time of decision.


In Subhash Chander v Ram Singh, appellant Subhash was 7 years old and the respondent was the bus driver who caused accident to him. He couldn’t stand without his surgical shoe and the disability wouldn’t get him job in the future. The Motor Accidents Claims Tribunal, approved the compensation of Rs. 3000 under the heading of “Probable future loss by the reason of incapacity and diminished capacity of work”. High Court of Delhi decided the damages to be Rs. 7,500.


MEASURE OF DAMAGES FOR PERSONAL INJURY

The personal injury’s compensation is given under the following:

  • There should be personal pain and suffering.

  • Actual pecuniary loss resulting in any expenses reasonably incurred by plaintiff.

  • Probability of loss of income by the plaintiff and future loss of work due to incapability.


A few case laws regarding the damages for personal injury:

  1. In the case of Laxminarayan v Sumitra Bai, defendant manipulated Sumitra Bai (plaintiff) saying that he would marry her if she had sexual relationship with him. After she became pregnant, he refused to marry her. The plaintiff was entitled to physical pain, indignity and was awarded with substantial damages under torts.

  2. In Union of India v. Savita Sharma, an 18year old girl who was travelling in a tempo had an accident with the military vehicle. She was severely injured and the court observed the agony she’s gone through as she had to use an artificial leg to stand and that effects the future of hers like the marriage issue. She was awarded Rs. 10000 for medical expenses, Rs. 15000 for physical pain and agony, Rs. 12000 for permanent disablement, Rs. 6000 for expenses of Rs. 150 per year for replacing the artificial leg every year for 40 years which is the period of her life expectancy.


INTEREST ON DAMAGES

In addition to the damages, plaintiff is allowed 6% interest p.a. till the date of compensation. It is allowed in a few courts like Allahabad High Court and J&K High Court in a few cases.


DAMAGES IN CASE OF SHORTENING OF EXPECTATION OF LIFE

Injury caused by the defendant’s negligence, when leads to the shortening of the life span of a person, the damages are offered to the plaintiff for the loss of a happy life.

  1. In the case of Flint v Lovell, the 69year old man who was injured in an accident was awarded for the damages. The trial Justice, Acton J. said that though he had a long, healthy and a very long happy life, the accident made him unhappy and inactive. Which is why court fixed £4000 and £400 were given as special damages.


Special damages: The wrongful act which injured the plaintiff might avail special damages, not in every occasion but only in a few special cases.

  1. In the case of Benham v Gambling, a 2 ½year old baby died who lived in a happy and a healthy environment. This case was present before the House of Lords in 1942. The house issued 200 pounds as damages and set the following rules:

  • The test to determine the compensation is based on the happy life but not the length of the life.

  • Test of happy life is objective not subjective.

  • Very moderate amount as damages is given.

  • Economic and social position isn’t taken into consideration of the deceased.


DAMAGES UNDER NERVOUS & MENTAL SHOCK

When a wrongful act or negligent act is occurred and the plaintiff suffers a psychological and mental hurt, the defendant/ injurer is held liable for that and is asked to pay the damages for the treatment of the plaintiff.


DAMAGES UNDER THE FATAL ACCIDENTS ACT, 1855

The damages for a wrongful act given to the dependents of the deceased. In case of Fatal Accidents, the dependents can claim under Indian Fatal Accidents Act, 1855. Section 1-A of the Act provides as under:


Suit for compensation to the family of a person for loss occasioned to it by his death actionable wrong”. – Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensured) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.


The dependents who can claim compensation

The legal representatives under the Fatal Accidents Act are limited to children, parents, wife of the deceased person. Siblings, cousins, aunts and uncles can’t avail the damages according to the act.


In Budha v Union of India, a suit was brought in by the brother of the deceased, mentioning himself the legal representative. The court has dismissed the case as the Act of Fatal Accidents don’t mention brother as legal representative.


ASSESSMENT OF THE VALUE OF DEPENDENCY

The assessment of damages that is to be paid to the dependents in a proper way is determined by two different theories:

  1. Interest Theory

  2. Multiplier Theory

They are helpful to determine the quantum of compensation payable.


INTEREST THEORY

In this theory, the court determines the damages that is to be given to the dependent of the deceased. After the amount is decided, lumpsum amount is made to be paid, if deposited it should provide that much amount of interest which is equal to the sum that is determined by the court. For example: If M dies because of a tort committed by K, the dependent S would be left behind and he’d be having a monthly loss of Rs. 10,000. The Court will order the deposit of such amount from which the interest which is earned, is equal to Rs.10,000.


However, this theory has be declared inflexible principle in the case of,

Joki Ram v Smt. Naresh Kanta, the Full bench of Punjab and Haryana High court observed that the Interest theory is inflexible as the purchasing power decreases due to the run-away inflation.


MULTIPLIER THEORY

If any damage is likely to occur in the future because of the wrong committed by the defendant, the likely loss would be multiplied with the multiplier which indicates the number of years it might affect and the multiplication of amount is called as a Multiplier theory which is awarded by the court.


In the Municipal Corporation of Delhi v Subhagwanti, due to the negligence of the corporation, the clock tower at Chandni Chowk fell to the ground which fell on 3 members. The court awarded the dependents of the deceased members in a multiplier theory where the 3 members, income was Rs.40, Rs. 50 and Rs.150 and the amount was to be paid by the defendant to the dependents for 15 years with the amount of Rs. 7,200; Rs. 9,000; Rs. 27,000 respectively.


DAMAGES WHEN DECEASED IS NOT EARNING

For claiming the damages of a deceased person, the claimant should either be a legal claimant or supported by the deceased. In K. Narayana v P. Venugopala Reddiar, the plaintiff wanted to claim damages for the deceased wife as she died in a bus of the defendant due to his negligent driving. There was a point raised by the defendant that the wife had no income and the court then decided that to run the household, the wife who was a homemaker rendered Rs. 60 per month. Taking the life expectancy of the wife as 50 years, the court awarded Rs. 60,000 as damages to the husband to take care of himself and the children and the defendant to pay the amount for his negligence.


DAMAGES FOR THE LOSS OF CONSORTIUM

If there is a death of husband or a wife in a case, then the legal claimant can take the damages awarded for the injury i.e., death of them as they deprive the consortium of their life partner.


In the case of Narayana v P. Venugopala which was mentioned earlier, has taken the damages for his deceased wife, according to the Indian Fatal Accidents Act 1855.


In R.P. Sharma v State of Rajasthan, the petitioner’s wife died because the hospital transfused B+ blood instead of O+. Due to the negligence of the hospital, the wife of petitioner became sick and died a painful death gradually. The court has awarded Rs. 3,04,000 as the damages for going through pain, agony and suffering and loss of company.


In the case of remarriage, M.P.S.R.T. Corp. v Sudhakar, after the death of her wife and the damages are given to the husband on the income of his first wife. After remarrying, the second wife had no income and the issue being challenged in the court, it was said that the second marriage wasn’t the substitute of the first marriage and the loss still remains the same. The income of the second wife wasn’t there, so the damages were still claimable by the husband of her first deceased wife. The Hight Court awarded Rs. 96,000 and on appeal the Supreme Court awarded Rs. 12,000 after assessing the loss on the account only as Rs.600 p.a. for 20years.


CONCLUSION

The damages are unliquidated in case of the torts as they don’t fix the amount before the commencement of the tort. The types of situations during which the damages could be availed and also the claiming of damages when the person is deceased during a tortious act would be done by the legal claimants or the dependents of them.


Not only can a wife claim damages in case of husband’s death due to the tort, even the husband can claim damages even if the wife doesn’t have any income. The court takes the life expectancy of the deceased into consideration and the amount of income that the dependents might require for a period of time fixed by the court.