1986 PLP 1370 (CLC)

3. From the evidence of P.W. 4 Syed Abrar Saeed Exh. 6, who was driving the motor‑cycle at the time of the accident, and the evidence of the plaintiff P.W. 5 Exh. 7, which evidence has not been controverted, it has been 'established that the accident that had taken place on 22‑3‑1984 and which resulted in serious injuries being caused to the plaintiff, was caused on account of the rash and negligent driving of the defendant No. 3, Mowaiz Khan son of Zahir Shah who was driving the truck bearing No. GP‑1926 and that the said truck belonged to defendants Nos. 1 and

2. It is also established that on account of the said accident, the plaintiff received the following injuries:‑‑ (1) Lacerated wound 10" x 4", bone muscle deep right leg, anterior aspect. (2) Lacerated wound on the cusitral fossa 2'' x 1/2" muscle deep. (3) Lacerated wound below right knee on medical sita 8" x 4" muscle deep. (4) Abrasion right back of right hand. (5) Lacerated wound I" x I" and 2" x 2" right iliac crest lateral side. (6) Fracture Styloid process of Lilna right. (7) Fracture Neck of Fibula right. (8) Fracture Lateral Tuberosity of right Tibia. (9) Fracture Tibial Spine right. According to the plaintiff's evidence, which has gone uncontroverted, he was given emergency treatment and blood transfusion and was X‑rayed in the casualty ward of Abbasi Shaheed Hospital where he remained as an indoor patient till 31‑5‑1984 where he had undergone 3 operations on different dates. He was discharged on 31‑5‑1984 but he was again admitted in the hospital on 18‑6‑1984 and then discharged on 20‑6‑1984. According to his deposition, however, medical treatment was continued including dressing of wounds upto 19‑7‑1984. As to what he suffered and what he was suffering and what is expected to be suffered by him in future on account of the serious injuries received by him in the said accident, the relevant part of the deposition of the plaintiff is reproduced here:‑‑ "I suffered shock, intense physical pain and metal agony for a number of months as a consequence of this accident. For three months during May and July, 1984 I could walk with Crutches. Now I can only walk with a limp and with stick. I claim Rs.50,000 as compensation for physical pain and mental agony in the Hospital. I was under the treatment of Dr. Bashir A. Khan, who has been examined as P.W.

2. He has given me a certificate which has already been exhibited as Exh.4. Due to injuries sustained by me I cannot lead normal life. My movements have now been restricted. I cannot now perform 'Qai'da' in 'Slat' according to Sunnah. I feel limping while walking I cannot climb up with right foot as it cannot bear weight. My social activities have also been stopped. There remains stiffness and pain permanently in my right foot and knee. At times when I bow down the muscles cramp. Since accident I am having disturbed sleep. I cannot also perform my marital obligations as my right leg cannot bear any weight. My hips continue to be insensitive. I cannot travel by bus, nor can drive a car. For coming to the Court to attend my official duty and going back to my home I generally hire taxi. There is also stiffness in my right hand. I feel difficulty in easing. According to the opinion of the doctors and also of my own experience I feel that disabilities will be getting worse by passage of time. These disabilities are permanent. I am getting on weight and for lack of movement my digestion system is affected. I have claimed Rs.2 lacs as damages for the permanent disabilities. There are very repellant scars left on my right hand, right thigh and calf. I feel embarassed when I shake hand with others. I claim Rs.25,000 for abnormal looking scar on my right hand only. Since discharge from the hospital on 19‑7‑1984 I am consulting other doctors. They have advised me for treatment abroad. I consulted with a number of doctors including Dr. Mumtazuddin Haider who is Consultant Orthopaedic Surgeon at Karachi Adventist Hospital. On his advice for plastic surgery treatment of my scars I contacted a number of Hospitals at London and U.S.A. I produce photos of the scars appearing on my body, which I had sent to the hospitals abroad alongwith the certificates of Pakistani Doctors Exhs. 7/3 to 7/6. I produce letters received from abroad as well as copies of my letters Exhs. 7/7 to 7/18. The hospitals at U.S.A. have estimated U.S.$ 10,000 to be the expenses for plastic surgery. This excludes expenses for my stay there. I produce letter from Shakil Express showing travelling expenses from Karachi to America, Exh. 7/19. I have claimed a sum of Rs.2 lacs for expenses for advance treatment abroad. I had sent notices to all the defendants before filing the suit through my advocates. 1 produce the same with acknowledgement due as Exhs. 7/20 to 7/23. I claim these damages from the three defendants jointly and severally. Defendants Nos. 1 and 2 are liable vicariously." All the aforesaid evidence has gone uncontroverted. Reference may also be made to 4 photographs produced by the plaintiff in his evidence as Exhs.7/3, 7/4, 7/5 and 7/6. These photographs show the big and ugly scars on the body of the plaintiff as a result of the injuries that had been suffered by him in the said accident. There are scars on his right leg; the scar on his right thigh more or less covering the entire length of his thigh. There is also a big scar on his right calf and a big scar on the upper side of his right hand. Apart from the evidence given by the plaintiff, from the aforesaid 4I photographs also it is apparent that the plaintiff has acquired various physical permanent disabilities and that he must have suffered and is suffering extreme pain which will continue and which he is likely to A suffer for the rest of his life. Apart from this, there is also the mental agony and anguish which he must have undergone and which apparently he will undergo for the rest of his life. He has deposed that he feels embarrassed in shaking hands with others on account of the ugly looking big scar on his right hand.

4. His evidence and the evidence of the 2 doctors indicates that the pain and suffering of the plaintiff will continue for rest of his life. The medical evidence further indicates that by medical treatment abroad scars might improve but there can be complications or side effect on account of removal of the grafts and replacement with new grafts but total removal of scars is out of question. The plaintiff is working as a Research Officer in the High Court and at present is drawing total emolument of around Rs.4,700 per month. He has not claimed any damages on account of local medical treatment and loss of any salary as his services in the High Court are continuing and the local medical expenses have been met by the Sind Government. According to his evidence, the plaintiff is 52 years of age now; it means that he was around 51 years of age when the accident took place in March, 1984.

5. As observed earlier, it has been established through the evidence. on record that the accident which resulted in the aforesaid injuries to the plaintiff had been caused on account of the rash and negligent driving of the defendant No. 3, an employee of defendants Nos. 1 and

2. By the evidence it has also been proved that the ugly looking scars on the body are also the result of the injuries suffered by the plaintiff in the said accident. It has also been established through the evidence that various permanent disabilities have been acquired by the plaintiff 8 on account of the injuries received in the said accident and that the pain and mental agony suffered by the plaintiff and which he will suffer for the rest of his life, are also the result of the injuries suffered in the said accident. The plaintiff is entitled to damages but the question which requires further determination is as to whether he is entitled to all the damages that he has claimed, and if not, to what damages he is entitled to against the three defendants.

6. The first item in para. 12 of the plaint is damages claimed for permanent disabilities and consequent hardships and disadvantages that the plaintiff shall suffer for the rest of his life. On this account the plaintiff has claimed Rs.2 lacs. The second head is expenses for advanced medical treatment abroad for which Rs.2 lacs have been claimed. The third head is damages for injuries, shock, extreme physical pain and mental agony suffered by the plaintiff for more than 3 months. Damages amounting to Rs.50,000 have been claimed under this head. The last item is a claim for Rs.25,000 on account of damages for abnormal looking big scar on the upper side of his right hand which arouses aversion in the on‑lookers and resultant feeling of depression and inferiority in the plaintiff. The total damages claimed, as observed earlier, are Rs.4,75,000.

7. In support of the claims made under the aforesaid four heads, learned counsel placed reliance on the following authorities and text books on the law of Tort:‑‑ (a) H. Wert a Sons Limited v. Shephard (1963) 2 A E R 625. (b) Cutlar v. Vauxhall Motor Limited (1970) 2 A E R 56. (c) Birkett v. Hayes (1982) 2 A E R 710. (d) Ehasn Ali v. K.R.T.C. P L D 1968 Kar. 464. (e) Gurdev Caur v. Rash Behari A I R 1978 Cal. 547. (f) Suresh Chandra Saxena v. Union of India A I R 1983 All. 15. (g) Sushila Pandey v. New India Assurance Company Ltd. A I R 1983 All. 69. (h) Torts by Kionka 1977 Edition at pp. 356 to 359. (i) Street on Torts 7th Edition at pp. 208 and 211.

8. I would take up first the claim made for injuries shock, pain and mental agony suffered by the plaintiff for more than 3 months while he was in hospital and during the period when, as outdoor patient, he had to go to the hospital for dressing of his wounds. The question might be posed whether the person who has been injured in an accident is at all entitled to damages for shock, physical pain and metal agony suffered by him on account of the injuries received in the accident and short answer to it is why not. In cases in which damages are claimed on account of personal injuries, the well established principle is that the damages must be such which would compensate the injured as far as money is concerned. It is true that the injured's permanent disability, pain, suffering, loss of enjoyment and depression resulting from injuries cannot exactly be calculated in terms of money, but for this reason Courts do not decline to grant compensation. In such cases just and reasonable compensation is assessed and awarded by the Courts to the injured. In my view, for pain and suffering also, damages can be claimed in personal injury cases if such pain and sufferings are the result of the injuries.

9. In the instant case the plaintiff has suffered a number of very serious injuries which included fractures. The evidence on record shows that the plaintiff had undergone extreme physical pain and mental agony for about three months when he was an indoor patient and also when dressing of his wounds were continuing. He had undergone three major operations in the process of medical treatment. There is no definite yard‑stick to assess exactly the damages for the shock, physical pain and mental agony suffered by the plaintiff during this period, but, in my view, the claim of Rs.50,000 made by the plaintiff in this regard is neither exaggerated nor unreasonable. According to me Rs.50,000 will be reasonable compensation for the physical pain and mental agony undergone by the plaintiff during this period.

10. The plaintiff has claimed Rs.25,000 for the abnormal looking big scar on the upper side of his right hand. This scar is also the result of injury suffered by the plaintiff in the accident on 22‑3‑1984. This scar is clearly shown in the photograph Exh.7/4 and there is no reason to doubt the statement of the plaintiff in his deposition that he feels embarrassed in shaking hands with others on account of this big ugly scar on the upper side of his hand. In my view, the claim of Rs.25,000 made by the plaintiff as compensation for this abnormal looking big scar on his right hand is to be allowed. This would be reasonable compensation for the permanent disfigurement of his right hand which is all the times visible to others.

11. The plaintiff has then claimed Rs.2,00,000 as damages for permanent disabilities and consequent hardships and disadvantages that the plaintiff shall suffer for the rest of his life. The plaintiff was about 51 years of age at the time of the accident. He is reasonably expected to live upto an age of 60 to 65 years. The plaintiff, in his evidence, has given account of what he is suffering and what he is reasonably expected to suffer for the rest of his life on account of the injuries received in the accident. The relevant part of his evidence in this regard has been reproduced in the earlier part of this judgment. As a result of the injuries in the said accident, the physical and mental condition of the plaintiff has been very seriously affected and he is neither leading nor is expected to lead a normal life in future. The adverse changes that have unfortunately come into the life of the plaintiff are reflected in the following disabilities and sufferings detailed in the evidence of the plaintiff:‑‑ (a) His movement has been restricted. (b) He cannot perform "Qai'da' in "Slat" according to Sunnah. (c) He cannot climb up with his right foot as it cannot bear any weight. (d) His social activities have greatly diminished. (e) There is stiffness and pain in his right foot and knee. (f) At times when he bows down, the muscles cramp. (g) since the accident, he has been having distrubed sleep. (h) He cannot perform his marital obligations. (i) His hips have become insensitive. (j) On account of the disabilities, he cannot travel by bus nor can he drive a car and for going to the office to attend his official duties and for going back to his house he is generally required to hire a taxi. (k) There is stiffness in his right hand. (1) He feels difficulty in easing. (m) He is putting on weight and his digestive system has been affected on account of lack of movement. According to the medical evidence the aforesaid disabilities are going to get worse by passage of time. The disabilities appear to be permanent. The aforesaid disabilities, sufferings, loss of happiness and the realization that he will not be able to lead a normal life at any time in the future as the disabilities are permanent, must have made the life of the plaintiff miserable. No amount of money can put the plaintiff back into a mental and physical condition in which he was prior to the accident. In my view, for all these disabilities, sufferings, mental and physical agony that will hound the plaintiff for the rest of his life, the amount of Rs.2,00,000 claimed by him as compensation is neither exaggerated nor unreasonable. The amount of Rs.2,00,000 claimed under this head will be reasonable compensation and is being awarded.

12. The other claim is for Rs.2,00,000 on account of expenses for advanced medical treatment abroad. I have seen the ugly looking big scars on the right leg and right hand of the plaintiff in the photographs produced by him in his evidence as Exhs.7/3, 7/4, 7/5 and 7/6. Medical evidence of Dr. Mumtazuddin Hyder (Exh. No. 3) and Dr. Bashir A. Khan (Exh. No. 4) shows that by cosmetic plastic surgery i.e. skin grafting, the ugliness of the scars on his body may improve but this can only be achieved by treatment through advanced surgery technique abroad. The plaintiff has been in correspondence with Medical Institutions E and doctors abroad and their opinion is also to the effect that there are chances of improvement if surgery is done abroad in U.S.A. The expected expenses including the fee of the surgeons and hospitalization charges are given by foreign medical institutions and these are much more than Rs.2,00,000, which is the amount claimed by the plaintiff under this head. In my view, in the circumstances of the present case, the plaintiff is entitled to make a claim for damages on account of the expected medical charges that are likely to be incurred by him for medical treatment abroad to minimise the effects of injuries suffered by him in the said accident. The claim of Rs.2,00,000 made by him is reasonable and I am allowing the same. It may be observed here that the case law and opinions of jurists, on. which reliance has been placed by learned counsel for the II plaintiff, support the propositions that the plaintiff can maintain and claim damages under the four heads mentioned in para. 1 of this judgment.

13. Suit No. 166/85 is decreed in favour of the plaintiff and as against the defendants, jointly and severally, in the sum of Rs.4,75,

000. The plaintiff shall also be entitled to the costs against the defendants. Defendant No. 1 is the Federation of Pakistan and defendant No. 2 is also a department of the Federal Government. Time is granted to defendants Nos. 1 and 2 till 30‑4‑1986 for payment of the decretal amount. A . A . Suit decreed.