Harinder Kaur v. Add. District and Sessions Judge and Ors.

(d) if any addition or alteration is made to, or in the building, wall, hoarding, frame, post or structure upon or over which the advertisement is erected, exhibited, fixed or retained if such addition or alteration involves the disturbance of the advertisement or any part thereof, and (e) if the building, wall, hoarding, frame, post or structure over which the advertisement is erected, exhibited, fixed or retained is demolished or destroyed.

145. Presumption in case of contravention. – Where any advertisement has been erected, exhibited, fixed or retained upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle or displayed to public view from a public street or public place in contravention of the provisions of this Act or any byelaws made thereunder, it shall be presumed, unless and until contrary is proved, that the contravention has been committed by the person or the persons on whose behalf the advertisement purports to be or the agents of such person or persons.”

12. He submits that even the Commissioner cannot grant permission for installation of a hoarding in contravention of the bye-laws made under the Act. Section 145 raises a presumption that any advertisement erected in contravention of the Act and the bye-laws upon or over any building or displayed to public view from a public street or public place has been erected by the person on whose behalf the advertisement purports to be. Since the hoarding was placed on behalf of the District Judge, there is presumption of contravention of the Act and the bye-laws by him.

13. The submission of learned counsel for the petitioner is that it is entirely on account of highly negligent act and conduct of the respondent authorities that the petitioner suffered the head injury leading to her present state and condition.

14. Apart from the above, to establish that the present is a case of res ipsa loquitor, the petitioner refers to the MLC of the petitioner recorded soon after the incident which has the following notings: (i) “Patient found unfit for statement and being shifted to park Hospital” recorded at 10:30 AM on 27.05.2008. (ii) “Patient is unfit for statement” recorded on 28.05.2008. (iii) “Not fit for statement” recorded on 30.05.2008 (iv) “Patient is not fit for any statement (having an irritable and drowsy behaviour)” recorded at 7.30 PM on 02.06.2008 (v) “Patient not fit for any statement” recorded at 7:10 PM on 04.06.2008 (vi) “Not fit for statement” recorded on 07.06.2008 (vii) “Advice- Admission in ICU; Not fit for statement” recorded at 5:30 PM on 10.06.2008 (viii) “Patient is not fit for statement” recorded on 16.06.2008 (ix) “Patient is not fit for statement” recorded on 18.06.2008 (x) “Patient has been referred for Psychiatric evaluation; CT showed grievous injury” recorded on 30.06.2008

15. The discharge summary of „Park Hospital, New Delhi‟ dated 23.06.2008 recorded the diagnosis of the petitioner as under: “Head Injury with LRTI with UTI with Typhoid Fever with Hyperthyroidism; C-7 Psychosis”.

16. The petitioner also places reliance on the medical condition as reflected on the OPD registration card issued by Dr. Ram Manohar Lohia Hospital from time to time. The various observations recorded in the said OPD Card read as follows:- (i) “Argumentative” recorded on 08.08.2008 (ii) “Repetitive speech. No Headache, unable to do any work, eat and sleep, abusive” recorded on 25.08.2008 (iii) “Totally deteriorated” recorded on 19.09.2008 (iv) “Wakes up nights, shouts talks to herself, very stubborn, poor self care” recorded on 21.01.2009

17. It is argued that since this is a case of res ipsa loquitur i.e., things speak for themselves, the petitioner is entitled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India to claim damages in this regard. He places reliance on the decision of the Supreme Court in Rudul Shah v. State of Bihar, AIR 1983 SC 108, and M.C. Mehta vs. UOI, 1987 (1) SCC

395. In M.C. Mehta (supra) the Supreme Court held that the concept of strict liability in India cannot be restricted by the limitations found in the decision of the English Courts in Rylands vs. Fletcher, 13 (1868) LR 3 HL 330. This position has been restated by the Supreme Court in the subsequent decision in UOI vs. Prabhakaran Vijaya Kumar & Others, 2008 3 SCC (Crl) 813, in the following words:- “37. In India the landmark Constitution Bench decision of the Supreme Court in M.C. Mehta v. Union of India, (1987) 1 SCC 395, has gone much further than Rylands v. Fletcher, 13 (1868) LR 3 HL 330, in imposing strict liability. The Court observed: (M.C. Mehta case, SCC p.421, para 31)

38. The Court also observed that this strict liability is not subject to any of the exceptions to the rule in Rylands v. Fletcher.

39. The decision in M.C. Mehta case related to a concern working for private profit. However, in our opinion the same principle will also apply to statutory authorities (like the Railways), public corporations or local bodies which may be social utility undertakings not working for private profit”.

18. Respondent nos. 2 to 4 have filed their counter affidavit in which they state that the accident in question was an act of God. It is claimed that the storm and rain experienced on 26.05.2008 was unprecedented and it was very sudden. It is claimed that the storm was of very high velocity because of which entire Delhi was adversely affected. In support of this submission the said respondents have placed on record newspaper reports of the storm experienced on 26.05.2008. In these reports it is reported that an under construction building had collapsed in Burari in Delhi.

19. The submission of respondent nos. 2 to 4 is that the contract for replacement of the existing sign board with a neon sign board had been awarded to the contractor M/s Swastik Creations i.e., respondent no.5, and it was the obligation of the said contractor to remove and return the sign board in question to the department. It is stated that the contractor failed to remove the sign board from the terrace. Learned counsel for respondent nos. 2 to 4 points out the contractual clause contained in the schedule of work, which lays down the scope of works and responsibilities undertaken to be done and complied with by the contractor. The relevant clause reads “Dismantled material if any, have to be returned to the Deptt. by the contractor. Material shall be got Approved by the Engineer in charge at site before use.” Reliance is also placed to the report made by the Executive Engineer on 02.06.2008, wherein the Executive Engineer has stated that the contractor is to take full responsibility for suitability and safety of all the works and methods of construction. It was also the obligation of the contractor to observe all safety measures as per clause 19(c) of the agreement.

20. Respondent no.1, the Additional District and Sessions Judge has also filed a short counter affidavit. It is disclosed that the responsibility of maintenance of the court building rests entirely with the PWD. It is stated that the PWD (Electrical) erects and maintains neon sign boards and they are liable, as the neon sign board involved in the accident was fixed by the PWD and was also maintained by them. A preliminary objection to the maintainability of the present writ petition has also been raised by them. The said respondents also invoke the defence of “Act of God”.

21. Respondent No.5 also opposes this petition and seeks to wash his hands off from the accident. The case of respondent no.5 is that under the contractual terms and the scope of work, the said respondent was not obliged to deal with the old sign board, and it was the obligation of the PWD to take care of the same. In this regard he places reliance on the schedule of work placed on record.

22. In his rejoinder learned counsel for the petitioner has submitted that the defence of “Act of God” pleaded by the respondents has no merit. In support of his submission, and to explain as to what constitutes the “Act of God”, the petitioner places reliance on the decision of the Supreme Court in Divisional Controller KSRTC vs. Mahadev Shetty, (2003) 7 SCC 197.

23. Before proceeding to deal with the various issues raised in the present petition, I shall at the outset deal with the question: whether courts can award compensation while exercising writ jurisdiction. The question has been dealt with extensively by the Supreme Court in Rudul Shah (supra), Smt Nilabati Behera alias Lalita Behera v. State of Orissa & Ors., (1993) 2 SCC 746, Chairman, Grid Corporation of Orissa Ltd. (Gridco) and Ors. v. Sukamani Das (Smt.) and Anr. (1999) 7 SCC 298, Tamil Nadu Electricity Board v. Sumathi and Ors., (2000) 4 SCC 543, S.P.S Rathore vs. State of Haryana, (2005) 10 SCC 1.

24. The position that emerges from the afore-mentioned decisions is that the writ court may award compensation in appropriate cases, where the facts are not in dispute; there is established negligence in the acts and omissions of the respondent authority/authorities on the face of the record, and; there is consequent deprivation of a fundamental right of the petitioner or his legal representatives.

25. In the case of Varinder Prasad v. BSES Rajdhani Power Ltd. and Others, W.P.(C.) No. 8924/2007 decided on 18.01.2012, this Court took into account its earlier decision in Ram Kishore V. MCD, 2007(97) DRJ 445, to hold that a writ petition to claim compensation is maintainable under Article 226 of the Constitution of India, in case there is violation of fundamental rights. In Varinder Prasad (supra) an unfortunate boy died in an accident, when the shed of the house, whereunder he was playing, collapsed on him.

26. In the present case, it is not in dispute that the petitioner was grievously injured by falling of the sign board. The occurrence of the incident, as put forth by the petitioner, has not been denied by any of the respondents. The same stands amply established by the documents placed on record by the petitioner, to which reference has been made above, including the FIR, the MLC, the PWD report etc.

27. The next question, therefore, that needs to be dealt with is whether the facts, as aforesaid, are sufficient to draw an inference that the injury complained of was caused by the respondent‟s negligence. In other words, whether the event 'tells its own story' of negligence on the part of the respondents, so as to invoke the doctrine of „Res Ipsa Loquitor‟.

28. In MCD V. Suhagwanti, AIR 1966 SC 1750, the Supreme Court applied the maxim „Res Ipsa Loquitor‟, as the mere fact that the clock tower fell- told its own story, in raising the inference of negligence so as to establish a prima facie case against the Corporation. The Court applied the principle of strict liability and awarded compensation to the victim.

29. In Darshan & Others V. Union of India & Others, 2000 ACJ 578, the deceased had died of drowning after falling into an open manhole. The Division Bench of this court held as follows: “Coming to the instant case. It is one of res ipsa loquiter, where the negligence of the instrumentalities of the State and dereliction of duty is writ large on the Red Fort in leaving the manhole uncovered. The dereliction of duty on their part in leaving a death trap on a public road led to untimely death of Skatter Singh. It deprived him of his fundamental right under Article 21 of the Constitution of India. The scope and ambit of Article 21 is wide and far reaching. It would, undoubtedly, cover a case where the state or its instrumentality failed to discharge its duty of care cast upon it, resulting in derivation of life or limb of a person. Accordingly, Article 21 of the constitution is attracted and the petitioners are entitled to invoke Article 226 to claim monetary compensation as such a remedy is available in public law, based on strict liability for breach of fundamental rights.”

30. The Supreme Court in Pushpabhai Purshottam Udeshi & Ors. v. M/s Ranjit Ginning & Pressing Co. (P) Ltd. & Anr., (1977) 2 SCC 745, has explained the doctrine of Res Ipsa Loquitor in the following words: “The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Ed.) at p. 306 states: "The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused". In Halsbury's Laws of England, 3rd Ed., Vol. 28, at page 77, the position is stated thus: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence 'tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous”. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part.”

31. In the present case, the facts that the sign board in question was placed at the roof top of the Court building (in violation and contravention of the provisions of the Delhi Municipal Corporation Act and the bye-laws); the said sign board was dismantled and was being replaced by a new neon sign board; the said work was incomplete; and the said sign board fell on the petitioner on 26.05.2008 while she was in the Court premises at Rohini, are not disputed by any of the respondents herein. Further, the fact that the petitioner suffered grievous injuries by the falling of the sign board, which ultimately led to her present medical state, is also not disputed.

32. The aforementioned facts speak for themselves and tell their own story in raising the inference of negligence, so as to establish a prima facie case against the respondents. The negligence of the respondents herein and dereliction of duty on their part is writ large in the present case. In such circumstances it was for the respondents herein to establish that the incident took place due to some other cause, rather than their own negligence.

33. The respondents have shifted the liability from one to another, as evident from their submissions recorded hereinabove. The only other defence raised by them is that the incident took place due to an „Act of God‟, in view of the inclement weather on the day of the incident. To fortify their submissions, reliance has been placed on press reports dated 27.05.2011 which state that the city of Delhi, on 26.05.2011 (date of incident), received record rain fall accompanied with hailstorms and strong winds.

34. The Supreme Court in Divisional Controller KSRTC (supra) had the occasion to consider the concept of “Act of God”, wherein it was observed as under: “The expression “act of god” signifies the operation of natural forces free from human intervention, such as lightning, storm etc. It may include such unexpected occurrences of nature such as severe gale, snowstorms, hurricanes, cyclones, tidal waves and the like. But every unexpected wind and storm does not operate as an excuse from liability, if there is a reasonable possibility of anticipating their happening. An act of God provides no excuse unless it is so unexpected that no reasonable human foresight could be presumed to anticipate the occurrence, having regard to the conditions of time and place known to be prevailing. For instance, where by experience of a number of years, preventive action can be taken, Lord Westbury, defined the act of god (damnum fatale in Scottish Laws) as an occurrence which no human foresight can provide against and of which human prudence is not bound to recognize the possibility. This appears to be the nearest approach to the true meaning of an act of god. Lord Blancaburgh spoke of it as “an irresistible and unsearchable providence nullifying our human efforts.” (emphasis supplied)

35. A party which has itself acted negligently, in complete disregard of the provisions of law, cannot absolve itself of the liability by shifting the blame of the incident on a natural calamity, or in other words, an “Act of God”, no matter how severe it may be. The defence of “Act of God” is available only when there is no reasonable possibility of anticipating the happening of the occurrence in question. A party which has acted negligently cannot be said to have no such anticipation. By the act of being negligent, a party exposes itself to the risk of liability for wrongs/losses that may be caused.

36. In the present case, the display board was placed on the roof top in utter disregard of the provisions of the Delhi Municipal Corporation Act and the bye-laws. According to Bye Law 12(a) of the „Delhi Municipal Corporation Tax on Advertisements (Other than Advertisement published in newspapers) Bye-Laws, 1996, no advertisement hoarding shall be permitted on the roof-top. Further, Bye Law 12(d) provides that no advertisement hoarding shall be put up or erected in the right of way of any road.

37. Further, according to sections 143 to 145 of the Delhi Municipal Corporation Act, putting up of an advertisement board requires the prior written permission of the Commissioner. In the present case no such permission was granted by the Commissioner. Rather, in the facts of the present case, no such permission could have been granted by the Commissioner.

38. As observed hereinabove, it is not in dispute that the existing sign board was being dismantled and being replaced by a new neon sign board, and that the said work was incomplete. The said board was just tied to the iron angles of the new board, and nothing had been done to ensure its removal. The fact that the removed sign board had not been left loose on the terrace, but had been tied with wire shows that the respondents were conscious of the fact that the same could, by force of strong winds, have flown away and fallen to the ground, endangering the public frequenting the Court complex. Squalls, dust storms and rain, accompanied with strong winds are a regular and common feature that the city of Delhi experiences in the month of May practically each year, and judicial notice of the same can be taken by this Court. It is not the respondents case that in the month of May, such storms are never experienced in Delhi. The position, as aforesaid, is to the contrary.

39. In view of these facts and circumstances, negligence is writ large on the part of the respondents herein. They cannot, in the garb of inclement weather, as was observed on the day of the unfortunate incident, shirk away from their responsibility of complying with the provisions of law and taking reasonable precautions so as to keep away all persons from harm by anything placed on the roof top of a building which was frequented by the public.

40. Since the respondents failed to take reasonable precaution to prevent the accident, the defence of “Act of God” is not available to them in the present case.

41. As mentioned hereinabove, the respondents have tried to pass on the buck of the afore-said negligence to each other, so as to avoid any liability resulting therefrom. I make it clear that the scope of the present proceedings is not to fix the inter-se liability of the respondents herein. It is open to the respondents to sort out their disputes regarding inter-se liability in independent proceedings. The purpose of the present proceeding is to decide whether the petitioner suffered any injury resulting in damages due to the conduct of the respondents herein, and if so, whether the conduct of the respondents amounted to negligence, which „tells its own story‟, and if so, to determine the amount of compensation to which the petitioner is entitled to.

42. Having answered the first two questions in the affirmative, I shall now proceed to deal with the quantum of compensation to which the petitioner is entitled to in the facts and circumstances of the present case.

43. The present petition has been filed through the petitioner‟s mother, who as per the petition, is about 65 years of age and is bed ridden with a knee problem. It is further stated that the petitioner‟s father, who was working as a Senior Assistant with the Ministry of Agriculture, retired on 31.01.2001 and expired on 10.12.2007, after which the petitioner‟s mother is receiving family pension @ ` 6,800/per month approximately, which would be paid during her lifetime.

44. Learned counsel for the petitioner, by placing reliance on the educational certificates of the petitioner submits that the petitioner is highly educated and is a post graduate having done M.A. in Political Science from Delhi University. The petitioner, prior to the occurrence of the unfortunate incident was not employed, though it is submitted that on account of her qualifications, she would have drawn a salary of at least ` 17,000/- per month. It is also submitted that the petitioner has been deserted by her husband, and that the latter has also not paid any maintenance to her, till date. It is stated that on account of the injuries suffered by the petitioner, she is solely dependent on the family pension of her deceased father, which is being received by her mother.

45. In light of the aforementioned factual situation, the petitioner claims the following amounts as compensation:

┌──────────────────────────────────────────────────────────────────────────────────────┐
│

┌──────────────────────────────────────────────────────────────────────────────┐
│          Sl. Head/Type/Kind of Compensation                      Amount      │
│          No.                                                    Awarded      │
├──────────────────────────────────────────────────────────────────────────────┤
│          1.     Expenses relating to treatment,                  ` 8,666/-   │
│                 hospitalization, medicines, transportation,                  │
│                 nourishing food, and miscellaneous                           │
│                 expenditure.                                                 │
│          2.     Loss of earnings                              ` 2,40,000/-   │
│          3.     Future medical expenses                                      │
└──────────────────────────────────────────────────────────────────────────────┘

11. The general principle which should govern the assessment of damages in personal injury cases is that the Court should award to injured person such a sum as will put him in the same position as he would have been in if he had not sustained the injuries.

12. Broadly speaking, while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and non pecuniary damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money. Whereas, non pecuniary damages are those which are incapable of being assessed by arithmetical calculations.

13. Pecuniary loss may include the following:

(i) Special damages or pre-trial pecuniary loss.

(ii) Prospective loss of earnings and profits.

(iii) Medicinal expenses.

(iv) Cost of future care and other expenses.

14. Non pecuniary loss may include the following:

(i) Pain and suffering.

(ii) Damages for mental and physical shock.

(iii) Loss of amenities of life which may include a variety of matters i.e. on account of injury the injured may not be able to walk, run or sit etc.

(iv) Loss of expectation of life i.e. on account of injury normal longevity of the life of the person concerned is shortened.

(v) Disfigurement.

(vi) Discomfort or inconvenience, hardship, disappointment, frustration and mental stress in life.” c) The Court then went on to cite various examples from decided cases wherein non-pecuniary damages had been awarded in varied circumstances. These instances show that in leg injury, the nonpecuniary damages have varied between ` 2.80 lakhs to ` 4.0 Lakhs. Considering that these cases pertain to the decade 1990, the petitioner is awarded non-pecuniary compensation of ` 4 Lakhs, under the following heads:

(i) Damages for pain, suffering and trauma as a consequence of the injuries ` 2,00,000/-

(ii) Loss of amenities ` 1,00,000/-

(iii) Loss of expectation of life ` 1,00,000/-

53. The total amount of compensation awarded to the petitioner in the present case, is summed up as under: Sl. No. Head/Type/Kind of Compensation Amount Awarded

1. Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. ` 8,666/-

2. Loss of earnings ` 2,40,000/-

3. Future medical expenses

4. Non-pecuniary damages (General Damages) ` 4,00,000/-

5. Litigation Expenses ` 50,000/- Total `18,70,586/-

54. The aforesaid amounts shall carry a rate of interest of 6% per annum from the date of filing of the petition till the date of realisation.

55. The awarded amount along with up to date interest be deposited by the respondents with UCO Bank within three months by means of cheque in an account in the name of Harinder Kaur. Upon the aforesaid amount being deposited, UCO Bank is directed to release 10% of the amount to petitioner by transferring the same to her Account and the remaining amount be kept in Fixed Deposit in the name of the petitioner in the following manner:-

(i) Fixed deposit of 10% of the award amount for a period of one year.

(ii) Fixed deposit of 10% of the award amount for a period of two years.

(iii) Fixed deposit of 10% of the award amount for a period of three years.

(iv) Fixed deposit of 10% of the award amount for a period of four years.

(v) Fixed deposit of 10% of the award amount for a period of five years.

(vi) Fixed deposit of 10% of the award amount for a period of six years.

(vii) Fixed deposit of 10% of the award amount for a period of seven years.

(viii) Fixed deposit of 10% of the award amount for a period of eight years.

(ix) Fixed deposit of 10% of the award amount for a period of nine years.

56. The interest on the aforesaid fixed deposits shall be paid by automatic credit of interest in the Savings Account of the petitioner. Upon the expiry of the period of each FDR, the Bank shall credit the maturity amount in the Savings Account of the petitioner. On the request of the petitioner, the Bank shall transfer the Savings Account to any other branch according to the convenience of the petitioner.

57. With the aforesaid directions, the petition stands disposed of.

VIPIN SANGHI, J MAY 04, 2012 ‘BSR’/SR