​MEASURE OF DAMAGES 

Meaning of Damages:
There are many remedies which are available to the injured person and the most
common remedy is the award of damages. Damages is that amount of money which
the injured person gets from the person who caused injury to him.

In a claim for damages, the person should have suffered a legal injury because in
case no legal injury happens a person cannot claim damages even if he suffered an
actual loss. It can be understood with the help of these maxims:

Injuria sine damnum​, it means that there is a legal injury without any actual
damage. Here the legal right of an individual is violated therefore he has a right to go
to the court to enforce such right.

Damnum sine injuria​, it means that there is actual damage but no legal injury and
thus the person cannot go to the court to enforce his right because he has no such
right in the absence of a legal injury.

Damages can be provided in the cases of injuria sine damno but not in a case of
damnum sine injuria.

Another important point about ‘damages’ is that they are different from ‘damage’
even though they both sound the same they have a different meaning. Damage is
the loss suffered by the person due to the wrongful act of another person whereas,
Damages is the amount of money which is paid as compensation for the injury
suffered by a person.

So, damages are different from damage and it is one of the remedies which is
available to the plaintiff.

Liquidated and Unliquidated damages :

Specified that if the goods are defective then A will have to pay a compensation of
Rs.500 to B. If the goods turn out to be defective and B files a case against A then
amount of Rs.500 will be paid by A. Such compensation falls in the category of
liquidated damages.

Unliquidated damages are those damages which are not predetermined which
means the amount which has to be paid is not decided before the injury happens to
a person. Unliquidated damages are awarded in cases of tort because often the
parties to such a case do not know each other before the commission of tort and
therefore it is not possible for them to fix the amount of compensation beforehand.

Illustration​: A commits the tort of trespass in B’s property and B brings a suit against
him in the Court. Here the award of damages which B will receive will be
unliquidated damages, as the amount of compensation will be determined by the
Court.

Principle of Optimal Damages :

In the law of torts, the Court while awarding damages to the injured person makes all
the possible effort to ensure that the amount or quantum of damages is optimal. It
means that the damages awarded by the Courts should be reasonable and sufficient
and neither insufficient or over-compensation is given to the claimant.

In determining the optimal damages the following factors are considered by the
Court:

● The nature and extent of the injury.

● Whether the liability of the defendant is vicarious or not.

● The relationship between the plaintiff and the defendant.

● Thus after considering the relevance of these factors the Court decides the
damages which have to be paid by the defendant in case he is found guilty of
tort against the plaintiff.

Damages in Tort

In torts, the damages which are awarded by Courts to the plaintiff can be classified
into several heads as follows,

1.Nominal Damages:
Nominal damages are those in which even though the plaintiff has suffered a legal
injury at the hands of the defendant, there is no actual suffered by him. These
damages are provided in the cases of Injuria sine damno in which the Court
recognises the violation of the right of the plaintiff but the amount of damages are so
nominal or low because of no actual loss to the plaintiff.

In the case of Constantine v. Imperial London Hotels Ltd., The plaintiff was a
cricketer from West Indies who had gone to the defendant hotel to stay but he was
rejected on the basis of his nationality, therefore, the plaintiff stayed at another hotel
and did not suffer any actual damage. In the case brought by him, the defendant was
held liable because the plaintiff’s legal right was violated despite no actual injury
happening and they had to pay nominal damages of five guineas.

In the case of Ashby v. White (1703) 92 ER 126, the plaintiff was prevented from
voting by the defendant and the candidate for whom the plaintiff was going to vote
still won. The plaintiff sued the defendant. It was held that even though no actual
damage was suffered by the plaintiff, the defendant was still liable for preventing him
from exercising his legal right to vote and thus nominal damages were awarded in
this case.

2. Contemptuous Damages:
In these type of damages, the Court recognises that the right of the plaintiff is
violated but to show that the suit brought by the plaintiff is of such a trivial nature that
it has only wasted the time of the Court, the Court awards a meagre amount to the
plaintiff as damages. This is similar to the nominal damages but the only difference
between the two is that in nominal damages the plaintiff suffers no actual loss and in
contemptuous damages, the plaintiff suffers actual damage but it is a trivial one in
which he does not deserves to be fully compensated.

Illustration:​ If A’s dog enters B’s house and relieves himself and B accidentally steps
on it and is disgusted and thus, he brings a suit against A, the Court will rule in B’s
favour but because of such a trivial nature of this case the damages awarded by the
Court will be of a meagre amount.

3. Compensatory Damages :
Compensatory damages are awarded to help the plaintiff to reach his original
position at which he was before the tort was committed against him. These damages
are not awarded to punish the defendant but to restore the plaintiff to his previous
situation. These damages are very helpful in cases of monetary losses in which the
amount of loss can be easily calculated and therefore that amount can be ordered to
be paid to the plaintiff so that he can replace the damaged product or goods with
such amount.
Illustration:​ K takes T’s bike and due to his rash driving the bike gets damaged. Here
K can be awarded compensatory damages in which the amount for repairing the bike
will be payable to K by T so that the bike’s condition can be restored back to its
original state.

4. Aggravated Damages
These damages are awarded for the extra harm which is caused to the plaintiff which
cannot be compensated by the compensatory damages and it is given for factors
such as the loss of self-esteem, pain and agony suffered by the plaintiff etc. which
cannot be calculated in monetary terms. These damages are therefore additional
damages which are awarded to the plaintiff other than the damages awarded for his
pecuniary loss.

Illustration:​ A makes false claims against B as a result of which B’s standing in the
society is greatly affected and he is also ridiculed by people which leads to him
losing his self-confidence and self-esteem. Here Court can award B aggravated
damages for the humiliation and loss of confidence because of his suffering which is
caused by A’s act.

5. Punitive Damages:
These damages are also known as exemplary damages and the purpose of these
damages is to punish the defendant and to make an example of him so that others
are deterred from committing the same act as he did. Thus, whenever a Court feels
that the act of the defendant was severely gross, it awards punitive damages against
him to the plaintiff.

Illustration:​ A company advertises that its pill will help in quick weight loss and is
made up of natural ingredients, as a result, the plaintiff purchases it. But due to the
pills containing certain chemicals, it makes the plaintiff severely ill. Here the Court
can not only allow compensatory damages to the plaintiff but because of the
company’s false claims, it can also award punitive damages so that it does not
repeat the act again.

Calculating Damages:

There are some rules which are applied in certain conditions for calculating the
amount of damages in a case.

Damages in case of a reduction of life span:

Whenever due to the tort committed by the defendant, the lifespan of the plaintiff is
reduced, the amount of damages which will be awarded to him is calculated without
taking into consideration his social status. The damages are not provided for the loss
of the years of life but are provided for a happy life.

The happiness of life is calculated according to the subjective expectation of a

reasonable man and not of the expectations of the plaintiff or how he thought his life
was going to be. The damages which are awarded to the plaintiff are moderate.

Illustration:​ B suffers a severe injury due to the tort of A which has caused his life
span to be reduced to 10 years. Here even though B was a rich person and enjoyed
a good social status, the damages which will be provided to him will be done with the
perspective of the requirements of a reasonable man.

Damages in case of death of a person:

In calculating the amount of damages in cases where a person’s death is caused,
two theories are used by the Courts:

Interest Theory:
In Interest theory, the Court determines the loss suffered by the dependant as a
result of the death of the person on whom he depended. After such amount is
determined, a lump sum payment is made which if deposited should provide that
much amount of interest which is equal to the sum which has been determined by
the Court.

Illustration:​ If A dies by the tort of B leaving behind C and the Court determines that
the monthly loss suffered by C is Rs.5,000. Then the Court will order the deposit of
such amount from which the interest which is earned, is equal to Rs.5,000.

Multiplier Theory:
In this theory if there is any loss which is likely to occur in the future as a result of the
tort committed by the defendant, that likely loss is multiplied with a multiplier which
indicates the number of years for which such a loss is likely to continue and the
result of such a multiplication is the amount of damages which is awarded by the
court.

Illustration​: If A dies due to the tort of B leaving behind C who knows that she has to
pay the mortgage money for their house for the next five years. Here, by applying the
multiplier theory, the amount of mortgage which has to be paid will be calculated and
will be awarded to C.

In United India Insurance Co. Ltd. v. Bindu & Ors, the deceased was riding a
motorcycle when he was severely injured due to colliding with a tractor, which was
driven negligently by its driver. The Court applied the multiple theory and fixed the
multiplier at 13 with 6% interest p.a., for the award of damages.
Is Inflation a factor in determining damages?

While awarding damages, whether inflation should be considered as a relevant

factor or not had been a big question of law and therefore differing views were
provided both in favour and against its consideration.

But in the case of Jaimal Singh v. Jawla Devi, it was held that while determining the
amount of compensation, a judge cannot shut his eyes to the factor of inflation and
the fact that value of rupee is declining.

In Kerala State Electricity Board v. Kamalakshy Amma, the decision in the above
case was upheld and it was observed that inflation should be considered as a valid
factor in determining compensation.

Conclusion

Damages are the monetary compensation which is awarded by the Court to the
plaintiff so that he can be enabled to make up for the loss which he has suffered
because of the tort committed by another person. There are several types of
damages and the calculation of damages depends on various factors such as the
nature and extent of the injury, the relation between the plaintiff and the defendant
etc. The calculation of damages is also different in different cases such as in the
case of death of a person the interest and multiplier theories while for calculating
damages while in case of shortening of life span the social status of the person is not
taken into account.