Judicial Remedies: Damages

Two rules that limit the award

Mitigation. A plaintiff must take reasonable steps to reduce his loss, and he cannot recover for loss he could reasonably have avoided. A shopkeeper whose stock is damaged must sell what can be sold.

Remoteness. Damage that is too remote is not recoverable at all, whatever its size, and chapter [Damage, Causation and Remoteness] works out the test.

Compensation from a public authority, and the Indian gloss

Facts. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, decided on 5 November 1993. Allottees complained that statutory development authorities had delayed possession of houses, failed to complete flats and built defectively.

Held. Housing construction by a statutory authority or a private builder is a service, and a complaint was maintainable. A Commission may award compensation for harassment, mental agony and oppression caused by a public functionary, on a finding recorded carefully on convincing material and not lightly; and where the compensation is paid out of public funds the department must recover it from the officers responsible, apportioned among them. In one appeal the Court directed the authority to fix responsibility within six months and to recover the Rs. 10,000 awarded from the officers' salary.

Why it matters here. It adds a distinctively Indian head of damages, compensation for harassment by a public authority, and a distinctively Indian consequence, that the officer and not the taxpayer ultimately pays.

A worked example

A negligently driven lorry hits Sunita's stall, injures her and destroys her stock.

Special damages. The hospital bills, the value of the stock, the cost of repairing the stall, and the earnings she lost while in hospital, each proved by a document.

General damages. Pain and suffering, loss of amenities, and any reduction in her future earning capacity.

Mitigation. She must sell what stock survived rather than let it rot, and she must accept reasonable medical treatment.

Remoteness. A contract she lost because a customer heard about the accident and doubted her reliability is likely to be too remote.

Which forum. If the lorry is a motor vehicle, the claim goes to a Claims Tribunal under section 166 of the Motor Vehicles Act 1988 and the Tribunal awards what is just under section 168.

What it does NOT mean

Damages are not a fine. They are measured by the plaintiff's loss, not by the defendant's wickedness, subject to the exceptional heads in chapter [Kinds of Damages].

They are not the same as the sum claimed. The court assesses; the plaint proposes.

They do not require an exact arithmetic for every head. General damages are estimated.

They are not the only remedy. Injunction, specific restitution and the extra-judicial remedies follow in the next chapters.

Quick revision

1. Restitutio in integrum: restoration to the original position so far as money can do it, and it is a ceiling as well as a floor.
2. Damages in tort are unliquidated: assessed by the court.
3. Special damages are calculated and must be pleaded and proved; general damages are presumed and estimated.
4. "Special damage" in slander and public nuisance means something different: damage peculiar to the plaintiff.
5. Mitigation and remoteness both limit the award.
6. Section 168 of the Motor Vehicles Act 1988 requires just compensation; section 39 of the Consumer Protection Act 2019 lists the reliefs a Commission may order.
7. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787: compensation for harassment and mental agony by a public authority, recoverable from the erring officers.

Test yourself

1. On what principle are damages awarded in tort? On the principle of restitutio in integrum, that the injured person is to be restored, so far as money can do it, to the position he would have occupied had the wrong not been committed. Damages in tort are unliquidated, so the court assesses them rather than applying a figure the parties have fixed. The principle works in both directions: the plaintiff recovers his whole loss, but he is not to profit from the wrong, so he gives credit for betterment and for sums already received in respect of the same loss. Two rules limit the award: he must mitigate, that is, take reasonable steps to reduce his loss, and he cannot recover damage that is too remote.

2. Distinguish special damages from general damages. Special damages are the items of loss capable of exact calculation at the date of the suit, such as medical expenses already incurred, the cost of repairs and wages actually lost; they must be specifically pleaded and strictly proved. General damages are the items the law presumes to flow from the wrong and which the court estimates, such as pain and suffering, loss of amenities, loss of future earning capacity and injury to reputation; they need not be pleaded item by item. The distinction is one of pleading and proof rather than of principle. It must not be confused with the phrase special damage as used in slander and public nuisance, where it means damage peculiar to the plaintiff and different in kind from that suffered by the public.

3. Can compensation be awarded for harassment by a public authority in India? Yes. In Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, the Supreme Court held that the housing activity of a statutory authority is a service, that a consumer forum may award compensation for harassment, mental agony and oppression caused by a public functionary, and that such a finding must be recorded carefully on convincing material and not lightly. It added a consequence that is distinctively Indian: where the compensation is paid out of public funds, the department must recover it from the officers found responsible, apportioned among them, and in one of the appeals it directed the authority to fix that responsibility within six months and to recover the Rs. 10,000 awarded from the officers' salary. The reasoning was that when a court directs the State to pay, the ultimate sufferer is the taxpayer, which is why the burden is placed on those actually at fault.