$~5.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 17370/2005
MOHD.NABI ..... Petitioner
Through: Mr. Sanjeev Bajaj & Mr. Ranjeet
Singh Thakur, Adv.
Versus
STATE OF DELHI & ORS. ..... Respondents
Through: Ms. Navratan Chaudhary, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 10.08.2011
1. The petition seeks compensation of `10 lac for the injuries suffered by the petitioner while in Tihar Jail and on account of medical negligence in treatment thereof. Notice of the petition was issued and pleadings have been completed.
2. It is the case of the petitioner that the petitioner was asked by the Jail Authorities to carry flour bags of over 100 kg. weight and owing whereto he fell and suffered a injury in his foot.
3. As far as the claim on account of the negligence of the Jail Authorities is concerned, the respondents in the counter affidavit filed have controverted that the petitioner was asked to or had lifted heavy flour bags or had suffered the injury owing thereto. It is the case of the respondents that as a matter of WP(C)17370/2005 Page 1 of 4 practice flour bags are jointly lifted by a team of three or more persons and ferried from the store to the Langar in a trolley; though it is admitted that the petitioner was involved in the said activity when he accidently slipped and hurt his leg.
4. It has been put to the counsel for the petitioner that if the petitioner claims compensation on account of having been made to lift excessively heavy bags while in custody, the same being a disputed question of fact, cannot be adjudicated in this petition. As far as the admission of the respondents of the petitioner having suffered the injury while involved in the process of ferrying of such bags is concerned, if the version of the respondents were to be believed, then the respondents cannot be held liable for any compensation in as much as the same does not disclose any duty to care which the respondents owed or which they failed to perform/observe qua the safety of the petitioner. Just like a person outside the Jail can suffer an accident, similarly a mere accidental injury inside the Jail would not make the Jail Authorities liable for compensation.
5. The counsel for the petitioner has also claimed medical negligence in his treatment. It is contended that there was negligence in his medical treatment and owing whereto the petitioner has been left with a limp.
6. The petitioner while he was still incarcerated had preferred criminal WP(C)17370/2005 Page 2 of 4 writ petition 1447/2002 seeking direction for proper medical treatment to be meted out to him. The said writ petition was disposed of vide order dated 20th December, 2002 with the direction to the Medical Superintendent, Tihar Jail to ensure that the petitioner gets adequate medical treatment and if necessary be also sent to AIIMS for specialized treatment. It is not the case of the petitioner that the petitioner thereafter made any application in the said proceedings that the order or the direction had not been complied with.
7. The Supreme Court in Martin F. D' Souza v. Mohd. Ishfaq JT 2009 (2) SC 486 had held that the adjudication of claims of medical negligence has to be by constitution of a Medical Board. Though the petition has remained pending for the last nearly six years but there is neither any Disability Certificate on record nor any Board has been constituted. The Medical Certificate of Deen Dayal Upadhyay Hospital has been filed but which does not show any negligence. The counter affidavit states that the surgery performed on the petitioner was successful and the petitioner had not made any complaint subsequently.
8. A choice has been given to the counsel for the petitioner that either a Medical Board can now be constituted to report whether any case of medical negligence is made out or not or the petitioner may institute a Suit claiming damages and wherein the factual controversies can be adjudicated and in WP(C)17370/2005 Page 3 of 4 computation of limitation for filing which Suit, since the petition has remained pending in this Court, the said period shall be directed to be excluded.
9. The counsel for the petitioner has opted to file a Suit rather than spend further time in this petition.
10. The counsel for the respondents has been heard on the aspect of limitation aforesaid. Since notice of the petition was issued and the petition remained pending in this Court till now, it is directed that subject to the Suit being filed on or before 15th September, 2011, the period during which this writ petition remained pending in this Court i.e. from 7 th September, 2005 and till 15th September, 2011 shall be excluded while computing the period of limitation for preferring the Suit.
11. With the aforesaid direction, the petition is disposed of. No order as to costs.
Dasti.
RAJIV SAHAI ENDLAW, J AUGUST 10, 2011/pp..
WP(C)17370/2005 Page 4 of 4