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Report No. 185

Section 12

This section states that in suits for 'damages', facts tending to enable the Court to determine amount of damages are relevant.

In the 69th Report, the Commission felt, after considerable discussion, that the word 'damages' is to be replaced by the word 'compensation' which is wider in connotation. The Commission referred to suits for defamation, breach of contract (section 73 Contract Act), torts and to awards for damages in case of mental anguish etc.

In para 8.28 of the 69th Report, it isstated that there is an etymological distinction between the words 'damages' and 'compensation'. While the term 'damages' is used in reference to pecuniary recompense awarded in reparation for the loss or injury caused by wrongful act or omission, the term 'compensation' is used in relation to a lawful act which caused the injury in respect of which an indemnity is obtained under the provisions of a particular statute, e.g. land acquisition.

In para 8.29 of the 69th Report, reference is made to the dictum of Esher M.R. in (Dixon v. Calcraft) (1892.1.Q.B. 458) to the following effect:

"The expression 'compensation' is not ordinarily used as equivalent for damages. It is used in relation to a lawful act which has caused injury. Therefore, that word would not, I think, include damages at large".

In para 8.30 of the same Report, it was explained that the word 'damages' is confined to civil cases but that the legal system of many countries imposes an obligation on criminal courts also to deal with claims for compensation.

In para 8.38 of the same Report, reference is made to the fact that Dixon J in an Australian case, dealing with 'compensation' for acquisition of property said it is 'recompense for loss' and to the view of Lathan CJ in another Australian case that the word 'compensation' is wide enough, in its ordinary significance, to include damages for the injuries suffered by a seaman.

Thereafter, in para 8.40 of the said Report, the Commission recommended that the word 'damages' be substituted by the word 'compensation'.

It will be noticed that while at one stage the Commission refers to the view of Esher MR that the word 'compensation' is not ordinarily used as equivalent to 'damages', it has accepted the view of Lathan CJ, at another stage, that the word 'compensation' will include the word 'damages'. We feel with respect, that there is considerable inconsistency in these two paragraphs.

As far as the word 'damages' is concerned, it is used in section 73 of the Contract Act. Damages are also payable by a trespasser on land of another. On the other hand, 'compensation' is payable (say) for a lawful acquisition of another's land. The Land Acquisition Act uses the word 'compensation'.

The Motor Vehicles Act, 1939 and 1988 when they refer to claims for injury by an injured person or by dependents of the deceased, use the word 'compensation' though the act which caused the injury or death is not a lawful one.

Keeping all these considerations in mind and noting that the word 'damages' is used in some situations or contexts and the word 'compensation' in others, and that opinions have differed whether one of the words would encompass the other, we are of the view that in section 12, it would be better if both words are used. We recommend that in the title and body of section 12, before the word 'damages', the words 'compensation or' are added.



Review of the Indian Evidence Act, 1872 Back




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