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TORT

 

Scope – In order to mitigate the suffering and the pain of the injured, the award of compensation is remedial and consolatory, and the same is not inflicted as a punitive measure on the wrongdoer as cost for mitigating such suffering and pain may vary from person to person, vocation to vocation and place to place depending on other attending circumstances as well as in each case. 2002 CLC 96

 

Frivolous litigation — Where Plaintiff filed suit for damages to recover Rs. 50,00,000 from defendant claiming that she had sustained heavy loss and faced agonies due to frivolous litigation of defendant against her—Validity—No yardstick existed to measure or assess actual quantum of damages in respect of mental torture sustained by plaintiff while facing agonies of a frivolous litigation against her—In order to prove the expenditure incurred on such litigation, a party could place on record details of such expenditure, but in the present case no specific evidence was available on that point—Even if plaintiff failed to prove actual quantum of damages, her suit was not to be dismissed on that ground as court itself was competent in circumstances to ascertain quantum of damages—Keeping in view the facts and circumstances which had given rise to the present suit, particularly the fact that plaintiff who was a pardanashin lady belonging to a respectable family, was dragged by defendant and she had to face the agony of such frivolous litigation for a number of years before various courts in order to vindicate and safeguard her right of property, family and prestige and reputation, court concluded that ends of justice would meet if suit of plaintiff be decreed and she be awarded an amount of Rs. 10,00,000 as damages to be paid by defendant to her—Suit was decreed accordingly. 2004 C L C 223

 

Negligence by professionals – Damages – Recovery of – In case of such negligence generally Courts are very slow in attributing negligence to professionals like doctors and surgeons in performance of their regular duties – General presumption is attracted that the professionals have performed their duties to the best of their abilities and with due care and caution – Where it is established through cogent evidence that a doctor or a surgeon failed to take necessary precaution, due care and attention or acted carelessly and negligently, then action in tort is maintainable. 2002 CLC 96

 

Vicarious liability -Vicarious liability under tort means financial liability a person is made to suffer or bear for the actionable wrong or conduct of another based on nature of either fiduciary or contractual relationship between the two. 2002 CLC 96

 

Wrongdoer cannot seek refuge behind the doctrine of vicarious liability – Victim or those affected by the injury, only can claim compensation from the principal, master or insurance company as the case may be, who by virtue of such relationship with wrongdoer, may be considered Joint tort-feasor – Liability of wrongdoer is co-extensive with that of his principal, master or indemnifier. 2002 CLC 96

 

Prerogative of the plaintiff to proceed against the principal wrongdoer alone or Join other tortfeasor. 2002 CLC 96

 

Recovery of loss – In an action for damages in tort, a person injured/physically or otherwise, is entitled to be compensated both for pecuniary loss, as well as for non-pecuniary loss – Pecuniary loss is firstly relatable to the loss of earning of the injured during period of such injury or even as an aftermath of the same, secondly injured is also entitled for the reimbursement of all the actual expenses which he incurred in treatment or curing such injury, including medical/hospitalisation expenses etc. 2002 CLC 96

 Abdul Qadir v. S.K. Abbas Hussain PLD 1997 Kar. 566 and Nazar Ali Siddiqui, v. Pakistan 1986 CLC 1370 ref.

 

Non-pecuniary losses – Classification – Such losses may be classified as pain and suffering; loss of amenities of life and loss of expectation of life. 2002 CLC 96

 

Onus to prove – Burden, in such suit, is on the plaintiff to plead and establish his suffering and damages. 2002 CLC 96

 

Proof of – During operation, towel was left inside abdomen of the plaintiff by the defendant surgeon – Plaintiff had to again undergo surgery for removal of the towel by another surgeon – Plaintiff was housewife and non-working woman, she did not lead any evidence, either to show that, she suffered any pecuniary loss on account of her injury nor it was shown that on account of her injury or incapacitation during period of her injury or ailment any other family member while attending her suffered financially – Effect – Plaintiff could not claim or be awarded any compensation or damages on such count, as none were established to have been incurred or sustained by her or her husband – High Court took notice of the injury sustained by the plaintiff and the pain and agony suffered by her and considered the aftermath of such injury as well as incapacitation of the plaintiff for such injury – Compensation was awarded keeping in view all such factors – Suit was decreed accordingly, 2002 CLC 96

 Achutrao Haribhan Khodwa and others v. State of Maharashtra and others AIR 1996 SC 2377; Kaneez Begum v. KESC 2001 CLC 875; Mahon v. Osborne King”s Bench Division 1993 p. 14 and Morris v. Winsbury While King”s Bench Division 1937, p.494 ref.

 

Reimbursement – Claim of – In cases where injured is compensated/reimbursed for such treatment by a third person like employer, or by insurance company, as the case may be, then the injured cannot be allowed to claim any reimbursement from the wrongdoer on such count – Only the injured who has suffered pecuniary loss personally is entitled to claim reimbursement from the wrongdoer – Pecuniary compensation is awarded to reimburse the actual expenses incurred and not to make profit out of injury. 2002 CLC 96

 

Non-pecuniary losses – Facts to be considered, enumerated – Such losses are by nature discretionary and it is not possible to lay down any formula or yardstick by which it can be measured or translated in terms of money – Attending circumstances, age, sex, nature, intensity, duration, resulting pain and possibility of total or partial recovery, aggravating or mitigating condition, effect on overall quality of life of an injured person may lead, are some of the relevant considerations for determining fair and reasonable compensation for such loss or suffering – Discretion to award such compensation must be exercised Judicially keeping in view all the attending circumstances varying from case to case as damages under such head in tort are consolatory and compensatory but not punitive. 2002 CLC 96

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