MONODEE M. Y.

v SUN INSURANCE CO LTD & ANOR

2021 SCJ 181

SCR 113239 - 1/313/16

THE SUPREME COURT OF MAURITIUS

In the matter of:-

Mohammad Yousouf Monodee
Plaintiff

v.

1. Sun Insurance Co. Ltd

2. United Bus Services Ltd
Defendants

JUDGMENT

The plaintiff was seriously injured in a road accident which occurred on 10 May 2011
when his autocycle bearing registration No. 642 C was hit by a motorbus bearing registration
No. 6105 NV 10 along Wellington Street, Port Louis. In their second amended plea, the
defendants, the insurer and the owner of the motorbus have both admitted liability of the
accident. However, they have averred that the damages claimed are grossly exaggerated
and should be considerably reduced. Therefore, the only issue to be determined is the
quantum of damages.

In a second amended plaint with summons dated 02 June 2021, the plaintiff is
claiming from the defendants the sum of Rs 9,056,333 plus such additional sums
representing salary and end of year gratuity from 30th March 2018 up to date of judgment
together with interest from the entry of the plaint at 15% per annum.

The sum claimed is made up as follows:

(A) Loss of earnings-

(1) From 10/05/2011 to 30 March 2018
(Rs 11,500 x 82 months + 7 months end of
year gratuity) Rs 1,023,500
(2) Plus such additional sums representing salary
and end of year gratuity from 30 March 2018
up to date of judgment (Rs 11,500 x 13 x 3 + 23,000) Rs 471,500
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(B) Travelling expenses to and from hospital Rs 13,500

(C) Costs of medicines Rs 750 x 48 months Rs 36,000
(D) Future Loss of Income resulting from
Permanent Incapacity of 70% as a result of
(i) above knee amputation (50%)
(ii) fracture of right elbow jointly leading to ankylosis (17%)
(iii) fracture distal end of Right Radius (3%)
- amount if invested at 3% per annum to produce a
monthly income of Rs 11,500
(Rs 11,500 X 13 X 100/3) Rs 4,983,333
(E) Pain and sufferings -moral damage
trouble & Inconvenience, loss of mobility and
independence Rs 3,000,000
Total Rs 9,527,833

The plaintiff deposed and Dr Dhanraz Gopal, Consultant in Charge, Mr Sandiren

Vadeevaloo, Senior Analyst and Mr Leckraj Anand Gopee, retired banker were called on his
behalf. Dr Eknath Rajan, Consultant Orthopaedic Surgeon was the only witness called on
behalf of the defendants.

On the issue of quantum of damages, evidence has been adduced by both parties.

I shall now deal with the items of damages as claimed by the plaintiff.

A. Loss of income from the date of the accident up to the date of judgment

Under item A, namely, loss of income from the date of the accident, 10 May 2011, up
to the date of judgment, the plaintiff is claiming the sum of Rs 1,472,000 (monthly income
Rs11,500 x (10 years x 13 months) on the basis that the plaintiff has not worked due to the
accident.

On the other hand, the defendants have calculated the loss of earnings from 10 May
2011 to the date of judgment on the basis of the minimum wage of Rs 10,200 which is as
follows: (Rs 10,200 x 8 months for the year 2011) plus (62/100 x Rs 10,200 x 109 months
from January 2012 to May 2021); 62/100 being the percentage of permanent incapacity and
based on the said calculation, the amount due is Rs 770,916.

The defendants have challenged both the percentage of permanent incapacity and
the monthly salary of Rs 11,500 earned by the plaintiff at the time of the accident in 2011
inasmuch as no payslip was produced in Court. It is the contention of the defendants that
the Court should consider the minimum wage of Rs 10,200 as being the salary of the plaintiff
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and the percentage of permanent incapacity should be 62% and that the plaintiff could have
looked for a job such as telephonist.

Permanent Incapacity

Dr Dhanraz Gopal, Consultant in Charge of the Orthopaedic Surgery deposed on

behalf of the plaintiff and explained that following a road accident on 10 May 2011, the
plaintiff was brought to Dr Jeetoo Hospital. Upon medical examination, it was found that the
plaintiff had sustained: (i) severely crushed injury to the right lower limb with loss of tissue,
(ii) injury to the right arm, forearm and pelvis and (iii) multiple abrasions. The x-ray revealed
that the plaintiff sustained: (a) fracture distal 1/3 of the right radius, (b) comminuted fracture
right tibia and fibula and (iii) severely comminuted fracture of right elbow joint. The
treatments given to the plaintiff were: (a) on 10 May 2011, an emergency exploration of the
crushed injury to the right lower limb, wound debridement and repair of muscles and suturing
of laceration and immobilisation of fracture with plaster slab; (b) on 13 May 2011, a
secondary wound exploration to the right lower limb and excision of gangrenous tissue were
carried out; (c) on 14 May 2011, the plaintiff underwent an above knee amputation as the
right tibia was not viable and had developed gangrene; and (d) on 25 May 2011, the plaintiff
underwent an open reduction and fixation of fracture of distal end of radius with K-wires.

Dr Gopal explained that in 2018, when he examined the plaintiff, the latter had
reached his maximal medical improvement. Dr Gopal produced document P1, his medical
report in which he observed that there was satisfactory range of movement in the right
shoulder joint, the right elbow joint was completely ankylosed, there was mild deformity in
the right wrist and flexion and extension were restricted due to pain. However, the plaintiff
had a fairly satisfactory grip with the right wrist. The range of movement of the right hip was
fairly satisfactory following above knee amputation. The doctor stated that he used the
International American Guidelines to assess the plaintiff’s permanent incapacity at 70% and
the breakdown was as follows: the above knee amputation was assessed at 50%, fracture of
right elbow joint leading to ankylosis was at 17% and the fracture distal end of the right
radius was assessed at 3%. He also explained that the plaintiff could not use an elbow
crutch as his right elbow is stiff and he has “no movement”. According to Dr Gopal, the
plaintiff is permanently disabled and is unable to function from an economic point of view
and earn a living. He additionally explained that the plaintiff developed a phantom limb
syndrome that is he could still feel the sensation of pain and burning of the lower amputated
limb. Dr Gopal explained that Dr Rajan reached the same assessment for the above knee
amputation and that overall there were no big contradiction between their assessments.
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According to him, had Dr Rajan used the International American Guidelines, he would have
reached the same figure of 70% as permanent incapacity.

Dr Eknath Rajan, Consultant Orthopaedic Surgeon deposed on behalf of the

defendants and produced a report, document D1, following the plaintiff’s medical
examination on 12 December 2017. In his report, Dr Rajan stated that the plaintiff is
wheelchair dependence for mobility and cannot move on his own. He has a stiff and
deformed right elbow. The plaintiff’s right elbow is ankylosed in sixty degrees of flexion but
his right wrist has a good range of movements. The finger movements on the right side are
normal and the grip strength is good. He assessed the permanent functional residual
incapacity at 62%. However, he has explained in Court that the plaintiff would not be able to
use his hand fully. He has stated that the plaintiff would be able to hold a cup of tea but he
would not be able to bring the cup to his mouth. He admitted that the plaintiff could not wear
the prosthesis locally available as he would keep falling down and his hands are not fully
functional to prevent him from falling. He also agreed that the plaintiff would not be able to
move freely on his own and even if he gets a job as receptionist, he would not be able to go
to the toilet alone.

Dr Rajan did not share the view of Dr Gopal that the plaintiff suffered from phantom
limb syndrome. According to Dr Rajan, phantom limb syndrome should not be talked about
as it precipitates the presence of the said syndrome. He has also stated that in the course of
plaintiff’s examination in 2017, the latter did not complain of the said syndrome. However,
he stated that if the plaintiff complained about it to Dr Gopal in the course of his examination
in 2018, he would not dispute it. He used the guidelines in the Workmen Compensation Act
1931 to assess the plaintiff’s permanent incapacity. He assessed the amputation at 45%,
the right elbow joint at 15% and the wrist at 2%.

The plaintiff explained in Court that since 2001, he was working at Sorbet Arc En Ciel
factory as supervisor and ice cream seller and was earning a monthly salary of Rs 9,200.
His job consisted of supervising 3 factory workers to ascertain that they respected the norms
in the manufacture of ice cream and he also made deliveries of ice cream to several
“tabagies”. In 2006, his salary was increased to Rs 11,500. He produced a letter dated 31
December 2007, document P2 addressed to the Manager of Barclays Bank and an undated
letter which was addressed “to whom it may be concerned”, document P3. Both letters were
signed by Mr Essmallgee, the director of Sorbet Arc En Ciel factory. He explained that he
produced the letter to Barclays Bank for the granting of a loan for the construction of a
house. He also explained that later, he took another loan of Rs 450,000 from SICOM which
he used partly to reimburse the Barclays’ loan of Rs 200,000 and at the time of the accident
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he was only reimbursing the SICOM’s loan at Rs 6,000 monthly. He also explained that his
employer did not give him a payslip. He stated that he was residing with his mother who had
been separated from his father and with the help of his uncle he constructed a house and
was planning to get married and start a family. The plaintiff further explained that he would
wish to get out of the four corners of his house and work but he could not do so as he was
wheelchair dependent and each time he has to go outside his house or even to the toilet,
someone has to assist him to push the wheelchair. Moreover, it would be costly for any
employer to pay his daily taxi fare which would amount to Rs 10,000 monthly to take him to
his place of work and back home and also to get someone to assist him each time he would
wish to use the toilet.

It is not disputed that according to both doctors, the plaintiff sustained severe injuries
and he has become invalid. They also agreed that there is no big difference between their
assessments on the permanent incapacity and that the plaintiff would not get better and he
would be totally wheelchair dependent. The Workmen’s Compensation Act 1931 provides for
a percentage of incapacity between 40% to 70% for loss of a leg between knee and hip. It is
not disputed that the plaintiff has an above knee amputation and could not wear prosthesis
and is a wheelchair dependent. Due to the stiffness of his elbow, he is unable to bring a cup
of tea to his mouth. Dr Gopal was the plaintiff’s treating doctor and he put up his report in
2018 after examining the plaintiff’s general condition. I am therefore satisfied with his
explanation and assessment of the injuries sustained by the plaintiff and I find that it has
been amply established that the plaintiff’s incapacity is 70%.

Though Dr Gopal assessed the permanent incapacity of the plaintiff at 70%, he also
stated in Court that the plaintiff’s medical state would not improve and that he is unable to
function economically and earn a living and his evidence has remained unchallenged. The
plaintiff has equally explained the reasons as to why he did not look for a job after the
accident. He realistically believed that he would not get a job because the taxi fare required
for his transportation facility would be higher than the minimum salary and he would need
someone to assist him at the place of work to go to the bathroom. Dr Rajan stated that the
plaintiff could work as telephonist but then he also agreed that the plaintiff would need
someone to assist him each time he would have to use the bathroom at his place of work. I
have no reason to doubt the testimony of the plaintiff, which I accept to be the truth. I am
satisfied on a balance of probabilities that the plaintiff cannot work and earn a living after the
accident and he is dependent for his mobility on his 78 year old mother.

As aptly explained in Khurun & Ors v Pitot [1990 SCJ 214], the “dommages
patrimoniaux” would include-
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(1) the amount of any monthly “rente” not received from the time of death up
to the time of judgment; and
(2) a capital sum to compensate for future loss, that sum is an amount which,
if reasonably invested, will yield the sum which would have been normally
spent on the plaintiff(s) concerned by the de cujus, see Boodhoo v
Ramsamy [1985 MR 11].

The plaintiff has maintained all through his deposition in Court that his monthly salary
was Rs 11,500 at the time of the accident. The Court has no reason to doubt the veracity of
his testimony which is accepted as being true and which can be relied upon.

Therefore, in relation to the loss of earnings from the date of the accident until
judgment is delivered, the plaintiff’s claim of Rs 1,495,000 is reasonable.

Items B and C- Travelling and Medical Expenses

Under items B and C, the plaintiff failed to adduce any evidence to substantiate both
claims. However, he stated in evidence that the figures are only estimates. He also
admitted that at times the hospital was providing him with an ambulance. He also testified
that he was using a taxi to go to the hospital during his monthly visits. However, no hospital
appointment card was produced for the Court to assess the number of visits he made to the
hospital. The plaintiff further stated in Court that he purchased pain relief medicines from the
chemist as the medicines given to him in the hospital were not relieving his pain. I,
therefore, award the sum of Rs 10,000 for transport and Rs 10, 000 for medicines which are
reasonable in the present circumstances.

Item D – Future Loss of Income

Under item D, future loss of income, it is the contention of the defendants that the
said item should be calculated on the basis that the plaintiff is 62% permanently
incapacitated and that the remaining amount which is left after subtracting his expenses is
Rs 4000 and the capitalisation of interest should be based on 100/8 as stated in the case of
Allas v New India Insurance Co. Ltd [2015 SCJ 446]. Therefore, the sum to be awarded
under item D should not exceed Rs 403,000.

The plaintiff is claiming future loss of income on the basis of 100% permanent
incapacity, as he cannot work after the accident even if he wishes to do so. . He was 43
years old at the time of the accident and he was earning a salary of Rs 11,500 and he
expected that he would have worked until his retirement age. He is wheelchair dependent
 7

and needs someone to assist him whenever he has to move. The plaintiff calculated his
future loss of income on 100% permanent incapacity as follows 100/100 x Rs 11,500 x 13 x
100/3.

In Sotramon Limited v Louis Gerard Bathilde [2008 SCJ 338], Balancy Ag. SPJ
and Caunhye J (as they then were) held that “each case has to be viewed on its own merits”
and that “the trial judge, in his determination of the quantum of damages, would not confine
himself solely to the percentage of incapacity but would give due regard to the specific facts
and circumstances relating to the prejudice suffered by the claimant and which requires to
be compensated. For instance, in Deepchand & Ors v Ramjan (supra) the award of
Rs 550,000 was held to be reasonable “in the absence of any future loss of income”, and in
Baboolall & Ors v State of Mauritius (supra) the Court took into account, in making its award,
that the plaintiff, a former police officer, despite a permanent incapacity of 80% affecting the
lower part of his body, could still use his upper limbs and carry out his activities, notably as
technician repairing T.V. sets.” They further held that an award of Rs 1,200,000 for 40%
permanent incapacity to the respondent who was a metal sheet worker and who would only
be able to perform sedentary work, was not unreasonable.

Considering the evidence on record regarding the plaintiff’s incapacity to earn a living
as he was doing before the accident and the fact that he has no skill which would allow him
to work with 70% permanent incapacity, I find that the plaintiff is entitled to future loss of
income on the basis of 100% permanent incapacity.

Sir Cassam Moollan, CJ. and Ahnee, J explained the formula for the calculation of
future loss of income in the case of Universal Construction Ltd v Surette [1983 SCJ 92]
and it is as follows: “In short the formula represents the degree of permanent incapacity
multiplied by the yearly income and again by a factor which represents the percentage return
yield expected on a capital investment. In the present case 100% represents the total
permanent incapacity; 1800x 12 represents the yearly income which must be secured; and
the factor 25/2 represents 100/8 i.e. a return of 8% so that it is found that a sum of
Rs 270,000 must be invested on the basis of (Rs 18,000 x 12) = Rs 21,600 yearly.”

On the interest rate of secured investment to be taken into account in the calculation
of loss of future earnings, the learned Judges in Universal Construction Ltd v Surette
(supra) made the following observation: “it has been suggested to us that the factor 100/8 is
at the present time unreal, as secure investment may be had the basis of an 11% return i.e.
100/11, and that we should therefore recompute the figure. We are aware that there has
lately been a tendency to depart from the factor 100/8 towards a more liberal return on
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investment to keep pace with the real economic condition of the day. In the very few cases
where the more liberal approach has been adopted, the Court had been put in presence of
different possible investments to choose as regards their security value as also the time
within which the investment could be recalled in case of need. It was open to the parties to
canvass the issue before the trial Court but this was not done either specifically as such in
the pleadings or in evidence or even in arguments at the close of the case. Sitting on appeal
as we do now, we feel it would be wrong to review a matter which was canvassed before the
trial Court and to erect into a legal principle, a proposition which has lately been applied in
specific cases, under different consideration, supported by evidence, and about which
different views may prevail.”

Mr Sandiren Vadeevaloo, Senior Analyst at the Bank of Mauritius deposed on behalf

of the plaintiff and explained that currently no commercial banks in Mauritius are offering any
term deposit scheme which will yield a return of 8% per annum and secured capital. The
witness produced banks’ interest rates on rupees deposits for the period 2018 to Nov 2019
(Doc P4), which show that the interest rates have varied from 3.157% to 6% for investment
exceeding 60 months. Mr Leckraj Anand Gopee, retired banker also testified for the plaintiff
and confirmed the testimony of Mr Vadeevaloo that commercial banks in Mauritius are not
currently offering 8% interest per annum. However, he stated that 8% was being offered in
late 1990’s. The evidence of the two witnesses has remained unrebutted in cross-
examination.

It has been submitted by learned Counsel for the defendants that the evidence of Mr
Vadeevaloo and Mr Gopee are irrelevant to the question of capitalisation of interest
inasmuch as their evidence have not been able to cast doubt on the decision of the Court in
Fabio Allas v New India Assurance Co. Ltd [2015 SCJ 446] which made it clear that the
Court is not bound by the conservative interest rates offered by commercial banks but rather
by interest rates offered through other investment plans where money could be invested in
shares and debentures with a much higher return.

To place matters into perspective, the learned Judge in Fabio Allas v New India
Assurance Co. Ltd [2015 SCJ 446] found that “there is evidence on record emanating from
the two bank officers, namely Mrs Roussety from the State Bank of Mauritius and Mr Louis
Maurice Francis Elysee from the Mauritius Commercial Bank, who were called on behalf of
the plaintiffs, that although the interest rate on saving account has gone down to 3% and that
a long term fixed deposit account would fetch an interest rate of only 4,375%, there are other
investment plans, where money can be invested in shares and debentures with a much
higher return of up to 14% and where there is capital guarantee with no risk at all.”
 9

Based on the above reasoning and taking into consideration the evidence on record,
I find that the plaintiff is unable to earn a living in the future as he was doing prior to the
accident and therefore he is entitled for loss of future income. Document P4 has not been
disputed in cross-examination of Mr Vadeevaloo. In respect of the interest rate, I find that on
the basis of document P4, the plaintiff may obtain an interest rate of 4.5% for a 60 months
fixed deposit in a commercial bank. The sum to be awarded to the plaintiff for future loss of
income is therefore (100/100 x Rs 11500 x 13 x 100/4.5) is Rs 3,322,222.

Item E – Moral damages

Under item E, pain and sufferings, trouble and inconvenience, loss of mobility and
independence and moral damages, the plaintiff is claiming Rs 3,000,000. Learned Counsel
for the plaintiff has referred to the case of Patel & Ors v Bennessreesingh & Anor [2011
PRV 79] whereby the Privy Council maintained the sum of Rs 6,000,000 awarded to the
main victim for being 100% incapacitated as a result of a road accident and the case of
Fabio Allas v New India Assurance [2015 SCJ 446] whereby the victim, a professional
dive master, was awarded the sum of Rs 2,000,000 for 50% permanent incapacity. Learned
Counsel for the defendants has submitted that Rs 1,000,000 as moral damages is fair and
reasonable as at the time of the accident the plaintiff who was 43 years old was not in a
relationship; he was not practising any specific sports which he is now unable to do and he
did not have an ambitious career aspiration which would significantly impact his earning
capacity.

On the issue of moral damages, there is no doubt that each case is to be decided on
its own merits and previous cases can be looked at only as a guide. I shall be guided by the
following oft-quoted observations of Judicial Committee of the Privy Council in the case of
Patel & Ors (supra):

“In the nature of things moral damage is incapable of precise

assessment, and there is inevitably a large subjective element in the process.
But where a consistent pattern can be discerned in past awards of moral
damage by the courts of Mauritius, the award should broadly follow that
pattern, subject to adjustments reflecting (i) relevant differences in the facts,
and (ii) any decline in the value of money since the earlier decisions. The
assessment of moral damage is not, strictly speaking a matter for the judge’s
discretion. But it resembles the exercise of a discretion in being essentially a
question of judgment …”
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It is not disputed from the plaintiff’s evidence on record that-

a) he sustained severe crushed injury to the right lower limb with loss of
tissue and comminuted fracture of right elbow joint;
b) he underwent above knee amputation of the right leg and an open
reduction and fixation of fracture of distal end of radius with K-wires;
c) his fractured right elbow joint led to ankylosis;
d) he is unable to move with crutches as his right elbow joint is
completely stiff;
e) his physical mobility has been greatly reduced and he has to rely on
his mother of 78 years old to assist him whenever he has to go out;
f) he could not get married and enjoy the pleasure of a normal family life
as he aspired due to the accident; and
g) he has to rely on third party to take him to the beach and he cannot
mingle in society including having friends as a normal person.

In the particular circumstances of the present matter, I award a sum of Rs 1,500,000

as moral damages, which I consider to be fair and reasonable.

Interest

As far as interest is concerned, the plaintiff is praying for a judgment ordering the
defendants to pay interest at the rate of 15% per annum as from the date of entry of the
plaint until final payment.

As rightly pointed out by learned Senior Counsel for the plaintiff, it is settled principle
that interest under section 197 A of the Courts Act should not be awarded on moral
damages in respect of any period before judgment – vide Patel (supra) and Haurnaum v
Dindoyal D. & Ors [2016 SCJ 519].

I, accordingly, decline to award interest on moral damages and order that the
defendants pay interest at the rate of 15% per annum on the sum of Rs 1,515,000
(Rs1,495,000 + Rs 20,000) as from the date of entry of the plaint with summons as prayed
for in the second amended plaint with summons until final payment.

Total Damages

For the above reasons, I order the defendants to pay to the plaintiff jointly and in
solido the total sum of Rs 6,337,222. With costs.
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G. Jugessur-Manna
Judge

08 June 2021

For Plaintiff: Mr Attorney O I A Bahemia -

Mr Y Aboobaker, SC

For Defendants: Mr J Gujadhur, SA -

Mrs V Bunwaree-Goburdhun, of Counsel together with
Mr R Bunwaree, SC