User:Lonjizeno/Tort Law in India

Damages

Calculation of damages

Damages in the law of torts in India are premised on the concept of restituto in integrum. India advocates ‘full and fair compensation’ in all cases, including non-pecuniary damages .

India’s formulation of damages for tort cases is based on what is known as the multiplier method, awarding compensation based on the degree of compromise to the earning ability of the victim. . Under the multiplier method, the fair and just amount represents “the number of year’s purchase on which the loss of dependency is capitalised. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future. The allowance for immediate lump sum payment the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last”..

For instances of pecuniary damages with regards to personal injury, the following heads will be taken into account (1) loss of earning, (2) medical, hospital and nursing expenses and (3) the loss of matrimonial prospects. In instances of non-pecuniary loss, the following will be taken into consideration: (1) loss of expectation of life, (2) loss of amenities or capacity for enjoying life, (3) loss or impairment of physiological function and (4) pain and suffering..

Approach towards 'pain and suffering'

The view was that in cases of victims who were unconscious, one must award not only for the “loss of amenities and loss of expectation of life, but also for pain and suffering”.(Para 19) Such damages are awarded not as a matter of “solace” (Para 19). This view comes close to that expressed by Lord Scarman in Lim Po Choo case, differing from the British opinion by regarding that an award must be ‘made even for pain and suffering in case of unconscious plaintiffs’ (Para 19). The reason for so doing is that it ‘looks strange that wrongdoer whose negligence makes the victim unconscious is placed in a more advantageous position than one who inflicts a lesser injury which does not render the victim unconscious’ (P Satyanarayana’s case).

The quantum of compensation under the head of ‘pain and suffering’ will “vary with the intensity of pain and suffering of the plaintiff” (Klaus v East Indie Hotels, para 64). In Klaus v East Indie Hotels, it was acknowledged that there were three guiding principles in measuring the quantum of compensation for pain and suffering: (1) amount of compensation awarded must be reasonable and must be assessed with moderation; (2) regard must be had to awards made in comparable cases; and (3) the sum awarded must to a considerable extent be conventional (Klaus para 64). In measuring the quantum, “the court shall have to keep in view not only what has already happened, but also what is sure to happen with foreseeable certainty” (Klaus Para 70).

Punitive damages

In Rustom K. Karanjia and Anr. Vs. Krishnaraj M.D. Thackersey and Ors., it recognised that, following the common law of England and being influenced by Rookes v Barnard, the High Court ruled that damages can be awarded only in three categories: (1) cases where the plaintiff is injured by the oppressive, arbitrary or unconstitutional action by a servant of the Government, 2) cases in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff and 3) where provided by statute (para 30). However, this stand has since shifted with an expanding tort jurisdiction. The Supreme Court in Destruction of Public and Private Properties Vs. State of A.P. and Ors. (2009)5SCC212 accepted the Committee’s suggestion in evolving a “principle of liability – punitive in nature – on account of vandalism and rioting leading to damages/destruction of property public and private” (para 4). In an environmental tort case, the defendant was made to pay exemplary damages “so that it may act as deterrent for others not to cause pollution in any manner” (Mehta v Kamal Nath and Ors; para 24).