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1. (IN) Sarkar: Law of Evidence, 18th Edition

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(IN) Sarkar: Law of Evidence, 18th Edition
Sarkar: Law of Evidence, 18th Edition

Sarkar: Law of Evidence, 18th Edition > Sarkar: Law of Evidence, 18th Edition > THE INDIAN

THE INDIAN EVIDENCE ACT, 1872 (Act No. I of 1872)


S. 12. In suits for damages, facts tending to enable Court to determine

amount are relevant.

—In suits in which damages are claimed, any fact which will enable the Court to determine the amount of
damages which ought to be awarded, is relevant.


Principle and Scope.—In the preceding sections (6-11) relevancy in the sense of connection of events as
cause and effect has been fully defined. "These sections enumerate specifically the different instances of the
connection between cause and effect which occur most frequently in judicial proceedings" [Steph Intro p. 72]. In
the following sections (s s. 12-55) are given instances of relevant facts as defined above. The whole embraces
the entire subject of relevancy. In suits in which damages are claimed, the amount of damages to be awarded
becomes necessarily a fact in issue, and so s. 12 states in general terms that in suits for damages, facts
tending to "determine" the amount of damage are relevant. The class of suits in which damages are claimable
and the amount of damages that are appropriate in different kinds of suits, are regulated by the laws under
which such suits are brought. The damages awarded upon violation of a right are a remedy prescribed by the
substantive law. The kind of facts admissible in actions for damages vary according to the nature of the act
ions, eg for breach of contract, seduction, breach of promise to marry, libel, assault, trespass, &c &c but under
s. 12 any fact which is of help in determining i.e. in increasing or diminishing the amount of damages, is
relevant. Damages may be claimed either in an action on tort, or on a contract for its breach [see s s. 54, 55,
73-75, 107, 117-18, 125, 150-52, 154, 180-81, 205, 206, 211-12, 225, 235, 259. Contract Act, ss. 21, 23, S R

Injury to feelings is totally irrelevant in an act ion on a contract as an element of damages; but in actions on tort,
heavy damages may be given on this score [Hamlin v. Great N Ry Co , 1 H & N 408 : 26 LJ Ex 20]. In this case
it was said : "Generally speaking, the rule is this; in the case of a wrong, the damages are entirely with the jury,
and they are at liberty to take into consideration the injury to the party’s feelings and the pain he has
experienced, as for instance, the extent of violence in an act ion of assault and many topics, and many
elements of damage find place in an action for tort or wrong of any kind, which certainly have no place
whatever in an ordinary act ion on contract" [see Williams v. Curtis , 1 CB 841; Pearce v. Lyons , 2 Stark 317].
This principle is well illustrated in actions for defamations where the injury to the feelings is always an element
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(IN) Sarkar: Law of Evidence, 18th Edition

of consideration. Where damages are the result of simple negligence, mere pecuniary compensation is the
ordinary rule [Wild v. Holt , 9 M & W 672]. Whether the damage is too remote is for the consideration of the
judge. If he is of opinion that it is, facts tending to prove it are not relevant, and should be rejected [Nort pp 125-

Damages unless expressly admitted, are put in issue. Evidence tending to increase or diminish damages is, of
course, admissible, though not expressly involved in the issue. Thus, in an act ion for breach of promise of
marriage, plaintiff may give evidence of defendant’s fortune; for it obviously tends to prove the loss sustained by
the plaintiff; but not in action for adultery [James v. Biddington , 6 C & P 589]; nor for seduction [Hodsoll v.
Taylor, LR 9 QB 79]; nor for malicious prosecution; for it is nothing to the purpose "that damages are taken from
a deep pocket" [Short v. Stoy , Winton Sum As 1836, per ALDERSON B—ROSCOE N P, 18th Ed p. 86]. But
evidence of the amount of damage which is the necessary and obvious result of the defendant’s breach of
contract or of his tort, may be proved, though only alleged generally in the plaint [Nort p. 124].

Section 73 of the Contract Act indicates the facts which are relevant in estimating the amount of compensation.
For instance, knowledge on the defendant’s part at the time when the contract was made, of the probable
consequences of the breach is relevant, because on proof of that fact, it depends on what principle the
damages should be assessed. For the facts which should be taken into account in estimating the measure of
damages for breach of contract, see s. 73 of the Contract Act. The leading case on the subject is that of Hadley
v. Baxendale , 9 Ex 341 : 96 RR 742 on which s. 73 is founded. As to the law laid down there, see Pollock’s
Contract, 5th Ed p. 402. (See also now Czarnikow v. Koufos (Heron II ), 1969, 1 AC 350]. In act ions for breach
of promise of marriage, the means of the defendant and his position are facts bearing on the loss which the
plaintiff has sustained and therefore may be proved by her. On the other hand, in reduction of damages the
defendant may adduce evidence of the plaintiff’s conduct and character (see s. 55). In action for injury to the
person, the position and earnings of the plaintiff are material facts, while the means of the defendant are not
generally material [Hodsoll v. Taylor, LR 9 QB 79, 82]. In act ions for defamation there is a wide range of
relevant facts. See illus (c) to s. 6; illus (b) to s. 9, and illus (e) to s. 14. The character of the plaintiff is also
relevant (s. 55) [Cunn p. 33]. In civil cases the fact that the character of any person is such as to affect the
amount of damages in relevant [see s. 55post and notes].

Simply because there is difficulty in assessing damages, or the plaintiff has not adduced the best evidence
available, the Court would not refuse to award nominal damages. [Shaikh Gafoor v. State of Maharashtra, AIR
2008 (NOC) 1637 : 2008 AIHC 1812 : 2008 (3) Mahlj 643(Bom). The Court cannot award damages beyond its
pecuniary jurisdiction. [Shaikh Gafoor v. State of Maharashtra, AIR 2008 (NOC) 1637 : 2008 AIHC 1812(Bom)

[Ref Mayne on Damages; Pollock’s Contract, Pollock’s Tort; Wig s s. 75-80, 209-213; Phip 8th Ed pp 178-79].

Facts Relevant in Assessing Damages in Special Cases.—Measure of damages for breach of contract to
borrow money [Datubhani v. Abubaker : 12 B 242]; for breach of an agreement whereby the defendant
undertook to discharge a debt due by the plaintiff to a third person [Dorasinga v. Arunachalam : 23 M 441];
where an agent in breach of his duty sells the goods of his principal below the limits prescribed by him
[Mancherbhai v. J H Todd : 20 B 633]; for breach of contract to deliver goods on a certain date, the market price
on that day is the standard for the computation of damages [Shridhar v. Gobardhan : 26 B 235; Surjan Mal v.
Gian Chand, A 1921 L 39 : 59 IC 877]; for breach of contract to deliver goods within a specific time when the
vendor gives previous notice to the purchaser of his inability to perform the contract [Mackertich v. Nobo
Coomar : 30 C 477]; where the vendor finds it impossible to perform his contract by reason of events beyond
his control [Jugomohan v. Nusserwanji : 26 B 744 : 4 Bom LR 504]; where goods of an inferior quality are
delivered [Boisogomoff v. Nahapiet : 29 C 323 (reversing on appeal 29 C 587]; Ram Ch v. Vasanji : 45 B 129];
in an action for non-acceptance of goods bargained and sold [Cohen v. Cassim Nana , 1 C 264]; in a suit by a
purchaser evicted from his holding by reason of the defect in the vendor’s title covenanted for by him [Nagardas
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(IN) Sarkar: Law of Evidence, 18th Edition

v. Ahmed Khan : 21 B 175; Gajapathi v. Alagia , 9 M 89]; for vendor’s failure to execute the sale deed within the
stipulated time [Fukeer v. Issur Ch : 20 WR 481].

Measures of damages where goods entrusted to a carrier are not delivered according to contract—A party
cannot be allowed compensation for losses which might have been reasonably avoided [I G N & Rly Co Ld v.
Eastern A C Ld : 47 C 1027 : A 1921 C 315 : 61 IC 14]. Anticipatory breach of contract—measure of damages
[Manindra v. Aswini : 31 CLJ 168]. A purchaser failing to perform his part of the contract of sale, is liable in
damages to the seller to the extent of the amount of difference between the contract price and the price which
the seller could realise for the article of sale at the time of the breach of the contract [Pragnarain v. Mulchand :
19 A 335 : 17 AWN 150].

In a suit for breach of contract of marriage, the fact that a man has merely become the butt of his
acquaintances’ jests or has experienced a feeling of shame does not constitute an injury for which damages
can be awarded [Ma Ngwe v. Maung Po, 7 Bur LT 14 : 23IC 376]. Measure of damages recoverable from the
father of a Hindu girl for breach of contract of betrothal [Purshotamdas v. Mongol Das : 21 B 23]. In assessing
damages in cases of assault and abuse, the defendant’s means of life is an element which ought to be taken
into consideration [Joypal v. Mukoond : 17 WR 280]. Measure of damages for wrongful dismissal of school
master [David v. Supdt of St Anthony’s H School, 12 Bur LT 168 : 63 IC 982 (9 Bur LT 63 folld)].

Where the defamatory statement complained of is an imputation of bad conduct towards a woman and truth is
pleaded in defence, evidence that the woman herself had made statement to that effect to a number of persons
is relevant in assessing damages [Ma Sein v. Kyaw, A 1936 R 332]. In awarding damages in a divorce suit the
only guide to the amount would be the loss husband had sustained and the damages would be the same
whether the corespondent was a rich or a poor man [Thomas v. Thomas, A 1925 C 585 FB : 52 C 379 : 29
CWN 350 (Keyse v. Keyse : 11 PD 100 refd to)]. Mode of assessing damages for loss of life in a case under the
Fatal Accidents Act (8 of 1885) pointed out [Nanibala v. Auckland Jute Co Ld : 52 C 602 : A 1925 C 893].

Evidence of Character Affecting Damages.—As to character as affecting damages, see s. 55post.

End of Document