029-SLLR-SLLR-2008-V-2-JAYAMPATHI-AND-ANOTHER-v.-KUDABANDA.pdf
CAJayampathi and Another v Kudabanda289
JAYAMPATHI AND ANOTHERv
KUDABANDACOURT OF APPEALEKANAYAKE, J.
GOONERATNE, J.
CA 919/03(F)
DC MATALE 4681/MRJUNE 10, 2005JUNE 8, 2006
Civil Procedure Code – Sections 17, 18 and 18(2) – Section 755(1)C, Section758(1)(b)(c), Section 759(2) – Necessary party not named in the notice ofappeal and petition of appeal – Fatal? Is the failure to comply with Section18(2) a procedural irregularity? Does non-joinder of parties defeat an action?- Accident – Proper evaluation on damages necessary? – Court making anequitable assessment – When?
The plaintiff and his daughter who were injured, as a result of a motor cycleand a bus collision were awarded damages against the defendant-appellants.In appeal the respondent contended that, the daughter has not been includedas a party in the notice of appeal and the petition of appeal and therefore theappeal should be dismissed in limine. The defendant-appellants contendedthat, the Court erred on the law and facts.
Held:
The original record indicates that an application was made to add thedaughter and it was allowed, but no amended caption had been filed. Therespondent is himself responsible for not taking steps under Section 18.
There was no proxy filed on behalf of the intended added party, the orderto add has been made after the commencement of trial, several lapses had
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taken place in the original Court itself, these lapses cannot be cured in theCourt of Appeal.
This being a case of general damages and special damages not beingpleaded, Court could only make an equitable assessment.
Appeal from the judgment of the District Court of Matale.
Cases referred to:
W/jeratnev Wijeratne 74 NLR 193.
Ibrahim v Bee bee 19 NLR 289(FB)
Nanayakkara v Wamakulasuriya 1993 2 Sri LR 289.
Nadarajah v CTB 79 NLR at 53.
Jayakody v Jayasuriya 2005 1 Sri LR at 220 and 221.
S.J. Mohideen for defendant-appellant.
Bimal Rajapakse for plaintiff-respondent.
August 27, 2007
ANIL GOONERATNE, J.This is an appeal from the judgment of the District Court ofMatale awarding a sum of rupees Three Hundred Thousandagainst the two defendant-appellants jointly and severally forcausing severe injuries to the plaintiff and his daughter, as a resultof a motor cycle and a bus collision on the Matale/Dambulla roadas described in paragraph 5 of the plaint, on 20.2.1994.
The 1st defendant was the driver of the bus owned by the 2nddefendant at the time of the collision. Plaintiff attributed the collisionto the negligence of the 1st defendant and the District Judge hasentered judgment in favour of the plaintiff.
When this appeal was listed on 30.5.07 Counsel on both sidesindicated to Court that they are agreeable to resolve this matter byway of written submissions filed of record, and this judgment isbased on the written submissions and the material contained inthe appeal brief.
The Plaintiff-Respondent has contended as a preliminary issuethat the appeal is bad in law in as much as the plaintiff's daughterwho was a pillion rider and a minor at the time of the collision (as in
Jayampathi and Another v Kudabanda
CA(Anil Gooneratne, J.)291
paragraph 5 of the plaint) has not been included as a party in theNotice of Appeal and the petition of appeal filed of record though thedaughter had been added as a party in the original court. The originalcourt record indicates that an application was made to add thedaughter (18 years) and it was allowed without any objection(proceedings of 7.9.2000). The Appellant however contends thatalthough the District Court permitted to add a party no amendedcaption had been filed. On a perusal of the record, I find that theappellant's position is correct in this regard.
The relevant portion of Section 18(2) of the Civil Procedure Codereads thus "And in the case of a party being added, the added partyor parties shall be named, with the designation "added party" in allpleadings or processes or papers entitled in the action and madeafter the date of the order".
The record does not show any amended caption being filed in theoriginal court and it is apparent that the above Section 18(2) of theCivil Procedure Code has been breached by the plaintiff. Therefore,the question is whether the authorities cited by the respondent viz.Wijeratne vs Wijeratnedl.and Ibrahim vs Bee Bee<2). etc. would haveany application? Is there a failure on the part of the appellant to namethe necessary party as a respondent to the appeal where there isnon-compliance with Section 18(2) of the Code, by the plaintiff.Further the judgment of the District Judge dated 9.9.2003 refer onlyin the opening sentence to the plaintiff and the plaintiff addedsubsequently but does not thereafter specifically refer to the addedplaintiff. However, the issues have been raised based on the injuriessuffered to both plaintiff and his daughter. (Issue No. 7) There hadbeen no objection to any of the plaintiff's issues. Even the plaint referto injuries caused to both.
Failure to comply with Section 18(2) is definitely a proceduralirregularity. On the other hand Section 17 of the Code states thatnon-joinder of parties does not defeat an action. All these mattersshould have been considered in the original court.
The Respondent though raised an objection as above for theomission/mistake of the Appellant for not including the plaintiff'sdaughter (who was added) as a party in the notice of Appeal/Petitionof Appeal is himself responsible for not taking the steps as required
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to do under Section 18(2) of the Code. One has to consider this fromthe point of view of the original court order permitting addition ofparties under Section 18 of the Civil Procedure Code.
Section 755(1) (c) and (d) and Section 758 (1)(b) and (c),requisites of notice of Appeal and Petition of Appeal respectively ofthe Civil Procedure Code contemplates of the following particulars:
Names and addresses of parties
Names of the Appellant and Respondent.
Except in the Petition of Appeal, the notice of Appeal suggestinclusion of the address of parties.
In the above circumstances I would observe that muchconfusion would have prevailed upon on Attorneys on either sideresulting from the lapse that occurred from the original court.However the code has made provision to cure a lapse but it isdoubtful whether the following provision would apply in a situationof this nature, and to the case in hand.
Section 759(2) reads thus ….
In the case of any mistake, omission or defect on the part ofany appellant in complying with the provisions of the foregoingsections, (other than a provision specifying the period withinwhich any act or thing is to be done) the Court of Appeal may,if it should be of opinion that the respondent has not beenmaterially prejudiced, grant relief on such terms as it maydeem just.
Decisions of the Appellate Court in which Section 759(2) couldbe invoked may be gathered from the following case law.
The power of the court to grant relief under Section 759(2) ofthe code is wide and discretionary and is subject to such termsas the court may deem just. Relief may be granted even if noexcuse for non-compliance is forthcoming. However, reliefcannot be granted if the court is of opinion that the respondenthas been materially prejudiced in which event the appeal hasto be dismissed.
Nanayakkara v WarnakulasooriyaW.
Jayampathi and Another v Kudabanda
(Anil Gooneratne. J.)293
However, there appears to be fundamental mistake, thoughprocedural, which will cause difficulty as a result of non-compliancewith mandatory provision of the Civil Procedure Code (Section18(2)). The District Judge by order dated 7.9.2000 permitted theaddition of the 2nd added plaintiff (daughter of the plaintiff). Asobserved above there is no amended caption/pleadings filedsubsequent to the said order. There was no proxy filed on behalf ofthe intended added party. The order to add has been made afterthe commencement of trial. Several lapses had taken place in theoriginal court itself. The above lapses cannot be cured in the Courtof Appeal. Inspite of all this case proceeded to trial and I find thefollowing material on which a judgment had been pronounced.
The learned District Judge has more or less narrated theevidence, but has referred to the cross-examination of eachimportant witness from which the truthful account of the story couldbe gathered. The plaintiff's version is that the accident occurred onthe Matale-Dambulla road at a place called Huganwella, Naula,when he was riding his motor cycle and his daughter on the pillion.After having had tea with the daughter at a kiosk he proceeded onthe highway about a 100 yards, when a bus approaching from theopposite direction on the wrong side collided with the motor cycleand caused severe injuries to him and the daughter. At that point ofimpact there was a hilly area or higher elevation of the road and thebus had been coming down the slope. It is his evidence that as aresult of the accident he suffered a fracture of the hip and right leg.He was also unconscious until he was taken to the Matale hospital,and later transferred to the Peradeniya Teaching Hospital. Thedaughter's evidence also had been considered by court with thenarration of the evidence and reference being made to crossexamination of the witness. The medical reports of both weremarked as 'PI' & 'P2*.
The plaintiff according to 'P1' had the following injuries.
contusion left foot.
fracture of pubre bone.
The added plaintiff (daughter) according to 'P2' had the followinginjuries (a) compound fracture of the bones of the lower limb (Tibia &Fibula). Both reports indicate grievous injuries. The Doctor who gave
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evidence concludes that in view of the severe injuries caused to theadded plaintiff it cannot be said that the patient would after some timebe her normal self, of what she was prior to the accident. In fact theinjuries caused to her may have been fatal. However the Doctorstates that since the added plaintiff was not available in court hecannot comment on the added plaintiff's present condition. Thisseems to be the reason for the original court to answer issue No. 4 asnot proved. This Doctor was not examined on report marked 'P1".
The sketch plan was marked as 'P3 which also gives anindication as to how the accident occurred. The bus had goneacross the road and very much on the wrong side. Thebreadth of the road is 6.1 meters. Left side of the motor cyclehad been damaged, and at a point from about 3 meters fromthe edge of the road.
On the question of damages l find that the learned District Judgehas not made a proper evaluation on damages although hisultimate decision was to award damages on a reduced amountfrom the amount claimed in the prayer to the plaint, (may be for thereason of plaintiff's contributory negligence).
I wish to cite the following authorities where awarding ofdamages under various heads had been considered. This being acase of general damages and special damages not being pleaded,court would only make an equitable assessment. In Nadarajah vC.T.BM) at 53….
In a claim for damages for personal injury, whether caused bynegligence or otherwise, the damages are, apart from specialdamages, at large, and will be given for the physical injuryitself, and in case of disablement, for its effect upon thephysical capacity of the injured person to enjoy life as well asfor his bodily pain and suffering. "Such damages cannot be aperfect compensation but must be arrived at by a reasonableconsideration of all the heads of damages in respect of whichthe plaintiff is entitled to compensation and of hiscircumstances, making allowances for the ordinary accidentsand chances of life Halsbury-Laws of England (3rd Edition),Vol. 11, paragraph 427.
Jayakody v Jayasuriya(5) at 220 and 221.
Jayampathi and Another v KudabandaC-A:(Anil Gooneratne, J.)
McKeron in the Law of Delict (1965) 6th edition at page 114under the heading personal injuries has stated:
In an action for personal injuries the plaintiff is entitled to claimcompensation for:
actual expenditure and pecuniary loss;
Disfigurement, pain and suffering and loss of general healthand the amenities of life;
Further expenses and loss of earning capacity …
The damages recoverable under the second head cannot beassessed on any arithmetical or logical basis …
The usual method adopted is to take all the circumstances intoconsideration and award substantially an arbitrary sum.
Macintosh and Scoble, on "Negligence in Delict" 5th edition atpage 261, under the head of "Damages for Personal Injury" hasstated that "the general principles in relation to compensationpayable for injuries negligently inflicted on oneself personally have
been laid down in a number of decisionsto the effect that the
plaintiff is entitled to compensation for both pecuniary and non-pecuniary loss such as:
all necessary expenses such as medical and hospitalalteration.
Loss of future earnings.
compensation for loss of amenities.
compensation for the shortening of one's expectation of life.
compensation in respect of pain, suffering or deformitysustained …. Where damages are claimed for bodily injury,the plaintiff is not required to put a separate money value oneach different element of the general damages he has
sufferedIn regard to pain and suffering there are really no
scales by which pain and suffering can be measured andthere is no relationship between pain and money.
Loss of wages.
compensation for change in personality ….
Item (c) and particularly (e), however are not capable of anyprecise estimate, the court can only give a general equitableassessment".
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This Court need not come to a finding on the negligence aspectof the defendants or support the views of the District Judge as theJudgment of the Original Court cannot stand in view of the aboveprocedural lapses. The answers to issue Nos. 6, 7 & 8 beingimportant issues cannot be considered without a proper addition ofparties until and unless the lapses stated above are rectified. In thecircumstances I would set aside the Judgment of the District Judgeand direct that a re-trial be held. The Registrar of this Court isdirected to forward the record in D.C. Matale 4681/MR to therelevant District Court.
EKANAYAKE, J. – I agree.
Appeal allowed.
Re-trial ordered.