Ashish Kumar Mazumdar vs Aishi Ram Batra Public Charitable ...
2008 Latest Caselaw 2125 Del

CS(OS) No.3413/1991                Page No.1




                                                       REPORTABLE

              * IN THE HIGH COURT OF DELHI AT NEW DELHI

                  + CIVIL SUIT(OS) NO. 3413 OF 1991



                      % Date of Decision : DECEMBER 2nd, 2008.

ASHISH KUMAR MAZUMDAR                                     .... Plaintiff.

                             Through Mr. Manoj Chatterjee,
                             Ms.K.Iyer, advocates.

                        VERSUS


AISHI RAM BATRA PUBLIC CHARITABLE

HOSPITAL TRUST & ORS.                                 .... Defendants.

                             Through Mr. Manavendra Verma,
                             Advocate.



CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

1.

Whether Reporters of local papers may be

allowed to see the judgment?

2. To be referred to the Reporter or not ?     Yes.

3. Whether the judgment should be reported     Yes.

in the Digest ?

SANJIV KHANNA, J:

1. Mr. Ashish Kumar Majumdar, the plaintiff has filed the present

suit for damages against Chaudhary Aishi Ram Batra Public CS(OS) No.3413/1991 Page No.2

Charitable Trust, which runs and maintains Batra Hospital and

Medical Research Centre (hereinafter referred to as the "Hospital").

President and Vice President of the hospital, Principal Secretary and

trustees of the aforesaid Trust have been made co-defendants

(collectively they have been referred to as "defendants").

2. The plaintiff, then aged about 30 years was admitted to the

hospital on 27.10.1988 with past history of intermittent fever for one

month, which had lasted for 12-13 days and again re-occurred after

two-three days. The plaintiff was clinically diagnosed as a case of

relapse of partially treated typhoid fever. Widal test and blood

investigations were directed. The plaintiff was prescribed Perinorm,

Crocin, chloromycetin, inj. Mol etc. The temperature of the plaintiff

was recorded as 104°F on 28.10.1988 and continued to remain high.

There was no substantial improvement in the condition of the plaintiff

till 30.10.1988. On 31.10.1988, the Doctors decided to stop Perinorm

as they suspected that the said medicine had induced speech

disorder. On 31.10.1988, the widal test report was positive for enteric

fever.

3. In the night intervening 31.10.1988 and 1.11.1988 at about 2.30

a.m., the plaintiff was found to be missing from his room on the third

floor. At about 3 a.m., Mr. Hans Raj, a security guard, found the

plaintiff in a crumbled position in a gallery of the ground floor. He

was taken into the casualty. X-Ray, revealed that he had suffered CS(OS) No.3413/1991 Page No.3

multiple fractures on elbow with dislocation of left elbow. Myelogram

revealed that the plaintiff had fractured his L-1 and L-2 Lumber

Vertebrae with dislocation and complete transaction of cord. He was

shifted to ICU and on 3/4.11.1988, fractures in elbow were fixed. He

was operated upon to treat lumber vertebra but with limited result and

the plaintiff became paraplegic. The hospital decided to waive of

their bills for treatment and ultimately the plaintiff was discharged on

23.12.1988 in a paraplegic condition.

4. Counsel for the plaintiff has given up challenge to diagnosis,

medical procedure and treatment given in the hospital. It was

submitted that plaintiff is entitled to damages as he had suffered

multiple fractures including fracture of the Lumber Vertebrae, which

has made him paraplegic, when he was under the care and custody

of defendants. The defendants had failed to take reasonable care

and, therefore, the plaintiff has suffered fractures, the cause for this

paraplegic condition. The defendants, on the other hand, had

submitted that they are not liable to pay damages as they were not

negligent and casual connection between the treatment/hospital and

fracture suffered by the plaintiff has not been established. Plaintiff

had jumped from the 3rd floor room and had suffered injuries.

5. On 24.07.1997 the following issues were framed :-

(i) "Whether the plaintiff has been reduced to a paraplegic due to the lack of care and attention of CS(OS) No.3413/1991 Page No.4

the defendants while he was under the treatment? OPP

(ii) Whether the plaintiff is entitled for the compensation along with interest from the defendant? If yes, to what amount? OPP

(iii) Whether the suit is maintainable under Section 9 of the CPC? OPD

(iv) Whether there is any cause of action in favour of the plaintiff to file the present suit? OPD

(v) Relief?"

6. During the course of hearing, counsel for the defendant

conceded that issue No.(iii) does not arise for consideration and he

accepts that the present suit under common law of torts or for breach

of contract is maintainable.

ISSUE NOS. (i) AND (iv)

7. These issues are inter connected and therefore, are being

examined together. At about 3.00 a.m. in the night on 1.11.1988, the

plaintiff was found in a crumbled position on the ground floor, outside

the main hospital building but within the hospital compound. He, as

per the plaintiff, was found at a distance of 20 feet below the room

occupied by him. As per the defendants the plaintiff was found on the

ground floor below the room on the third floor occupied by him. The

plaintiff was semi-conscious. On examination it was found that

plaintiff had suffered multiple fractures including fracture of Lumber

Vertebrae that has made him paraplegic.

8. Both parties agree that sister of the plaintiff, Ms. Kajal

Chakravorty had stayed back in the hospital that night. It is conceded CS(OS) No.3413/1991 Page No.5

by the counsel for the plaintiff that Ms. Kajal Chakravorty went off to

sleep and woke up at about 2.20 a.m. and found the plaintiff missing.

She contacted nursing staff and informed them. Security staff was

also informed and about 3.00 a.m., she learnt that a patient was

found in the corridor on the ground floor.

9. A suit for damages based upon law of torts requires proof of: (i)

existence of duty to take care (ii) breach of the said duty by the

defender due to failure to attain standard of care prescribed in law

and (iii) causal connection between the breach and the loss caused.

Breach of the duty recognized by law should be proximate or real

cause of the loss.

10. Duty to take care or standard of care can be prescribed by

common law, by a contract or under a statute. The distinction

between the three for the purpose of the present case is immaterial

and need not be examined for the consequences are the same. The

present case pertains to duty prescribed under common law and

implied contract. Suit for damages based on breach of contract also

requires existence of contract, breach of obligation to take care or

observe standard of care and consequential damages.

11. The second condition, i.e. breach of duty, is satisfied when a

defendant fails to use requisite amount of care required by law in a

case where duty to take care exists. It is failure to take care, which CS(OS) No.3413/1991 Page No.6

the defendants were duty bound to exercise, which furnishes cause

of action and constitutes negligence. Everyone is required to exercise

requisite amount of care required by law in a case where a duty to

use care exists.

12. Way back in 1856, Alderson B. In Blyth Vs. Birmingham Water

works Co. had defined negligence to mean "omission to do

something which a reasonable man guided upon by those

considerations which ordinarily regulate human affair would do, or

doing something which a prudent or a reasonable man could not do".

Reasonable and prudent man is neither over apprehensive nor over

confident and a man of ordinary intelligence and experience.

13. Foresight test is generally applied to decide the question

whether a duty to take care exists and the degree of care required

and to determine causal connection between the act or omission and

the loss/damage caused. Loss or damage should be traceable to the

defender‟s negligence. Foresight test requires that every person

should avoid an act or an omission which a reasonable man could

foresee as is likely to cause injury to a person to whom duty to take

care is owed. Every person is responsible for natural and probable

consequences of his act or omission and is required to avoid risk of

injury to a third person when reasonable foresight suggests that a

person might be injured by failure to exercise reasonable care.

 CS(OS) No.3413/1991                     Page No.7




Negligence      is    failure   to   take   care    and   avoid   acts   or

omissions, even when resultant loss or injury can be anticipated and

reasonably contemplated. Question of negligence therefore requires

scrutiny into the question of duty to take care and degree of care

imposed and whether there was any breach of the duty to take care.

Degree of care varies with relationship between the parties, particular

situation and obviousness of risk.

14. One is negligent not because of intention to cause loss/injury

but because of carelessness or thoughtlessness which produces the

said result. Negligence is a state of mind and is different from

intention. Deliberate, wilful or intentional act to cause harm will

amount to negligence but the converse need not be true. Absence of

intention is not an alibi to a claim for damages based on negligence.

15. The plaintiff was admitted as a patient in the hospital. The

defendants, therefore, owed a duty to take care, ensure safety and

well being of the plaintiff. The plaintiff was suffering from high fever,

sickness and was under medication. The hospital was required to

protect the plaintiff from all foreseeable harms and anticipated

dangers. Quality of care expected from specialized private hospitals

is not ordinary but of a high degree. The defendants-hospital

professes and claims special skills in treating sick and infirm patients

and charges substantial fee and charges. Duty of care as expected is CS(OS) No.3413/1991 Page No.8

of a high quality and of the same degree as expected

from a parent. Medicines and drugs can be administered to patients

at home. A patient is shifted to a hospital because it ensures better

care, facilities and help with constant professional medical attention.

In Thompson versus Nason Hospital reported in 527Pa.330 = 591

A.2nd 703 (1991), hospital‟s duties were classified into four areas,

which read as under:

"The hospital‟s duties have been classified into four general areas: (1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients..."

16. Duty of care in the case of hospitals is not limited to diagnosis

and treatment but extends to providing safe and secure place to

ensure that the patients do not injure themselves. It is not

uncommon that patients who are sick or under medication can

become delirious, incoherent or act in a manner which would be

harmful and not in their interest. Patients under the influence of

drugs/medicines, due to high fever, nature of disease or

psychological reasons need not obey instructions/advise of doctors, CS(OS) No.3413/1991 Page No.9

can become disoriented and lose ability to decide what is right or

wrong. Reasonable foresight predicates that hospitals should be

conscious and aware that mishaps or injuries can result to a patient

and keep supervision and surveillance to check, prevent and protect

patients from doing anything or acting in a manner which might

cause harm to themselves or even others. Instances when a

patient in a delirium or in psychosis cannot be regarded as

farfetched or beyond reasonable contemplation. The defendant-

hospital therefore was aware and had duty to take care that the

plaintiff does not act in a manner by which he would injure and

cause harm to himself. The defendant-hospital owed this duty of

care to the plaintiff. It is, therefore not possible to accept the

contention of the defendants that they did not owe duty to take care

of the plaintiff beyond the diagnosis and treatment. The plaintiff was

admitted and confined to bed in the hospital. Duty to take care

included duty to prevent the plaintiff from moving out of the room,

going down the staircase or injuring or causing harm to himself by

taking a stroll. The defendants were aware and had knowledge that

a sick patient may get injured or harm himself if he decides to go out

for a stroll or a walk, even when his physical condition does not

permit or allows him to do so. Injury or harm to patients is

reasonably foreseeable. Strict vigil in hospital premises and round CS(OS) No.3413/1991 Page No.10

the clock safety checks are required to prevent a patient from taking

steps or acting in a manner that could cause injury or harm.

17. The defendants in their written statement have stated that in

view of the nature of the injuries, it is evident that the plaintiff had

jumped out of the window of the room sometime around 2.30 a.m. on

1.11.1988, when his sister Ms. Kajol Chakravorty was fast asleep

and, therefore, injuries sustained by the plaintiff and consequent

complications are not a result of negligence by the defendant-

hospital. It is stated that call bell was available. In Private

Wards/rooms, personal attendants are required to attend to patients

and each patient is not provided separate nursing staff unlike a

patient, who is admitted to ICU.

18. Allegation that the plaintiff had jumped out of the window from the

third floor and, therefore, suffered multiple fractures, is presumptuous

and on preponderance is to be rejected. On directions given by the

Court, the defendants have filed affidavit of Dr.(Brig) R.K.Gupta,

Medical Director, Batra Hospital and Medical Research Centre, which

reads as under;-

"2. I say that there is one single window in Room No.305 of the Hospital. The Width of the window is 4‟-8" and height is 5‟-3". The window is further located 3‟ above the floor level of the room. As is evident from enclosed photograph, „C & D‟, the window is divided into three panels. The middle CS(OS) No.3413/1991 Page No.11

panel has a fixed glass, whereas the two panels on each side are openable and have a width of 1‟ each.

3. The opening mechanism of these windows is side-hung type. This means that openable panels/shutters are swinging on hinges. A handle has been provided in the center of each shutter for opening and closing the same.

4. That each window has further been provided with a more than 3‟ wide ledge (chhajja) outside, which is further protected by a 3 feet high steel hand-rails and toe rails also (Enclosed photographs E, F & G).

5. That no grills have been provided on the windows as considering the size of openable shutters being one feet each and window being at the floor level of 3 feet, there being a ledge outside are considered to be adequate safety measures."

19. Photographs of the said window have also been filed, both

from inside and outside. Photographs reveal that outside the window

there is a small canopy/ledge with railing almost 3 feet in height. It

will be difficult for anyone to squeeze himself from a one feet wide

window 3 feet above the floor level, jump across and stand in the

canopy and then again jump over the three feet high railing, until and

unless this is deliberately and intentionally done. It will also require

considerable physical effort and strength on the part of the said

person. A fragile and a sick patient who has been suffering for a

month with high fever will hardly have necessary physical strength to

move around as an acrobat. The original medical file filed by the

defendants reveals that the plaintiff was having high fever throughout CS(OS) No.3413/1991 Page No.12

with past history of vomiting. As per the noting in the medical file, the

plaintiff had lost weight and there was also loss of appetite. The

medical file does not reveal that the plaintiff was depressed with

suicidal tendency or depressed to have deliberately attempted

suicide. There is no such allegation or statement in the medical

records, though various doctors had examined the plaintiff and as

stated below had even recorded statement of the plaintiff as to what

had transpired.

20. I may note here that there is no allegation that the window of

the room was found to be open or there were signs to show that the

plaintiff had jumped out from the window. No such suggestion was

given to Ms. Kajal Chakravorty, PW-2, who has admitted that she

was in the room and had tried to locate the plaintiff and had

approached the nursing and security staff. It is admitted by the

defendants that the room was searched immediately by the hospital

staff. If the window was open, inspite of the room being centrally air

conditioned, it would have been certainly noticed by nursing or

security staff and even by PW-2, Ms. Kajal Chakravorty as the patient

was found missing. The window could not have been latched/closed

from out-side and such precision can hardly be expected from a sick

patient ill for nearly one month. Medical file noting do not record that

the defendants or other staff had suspected a suicide attempt or a

deliberate act on the part of the plaintiff to jump from third floor.

CS(OS) No.3413/1991 Page No.13

21. The file noting at 4.15 a.m. on 1.11.1988 made by one of the

Doctors of the defendant-hospital reads:-

" Pt (i.e patient) says he went for a walk around 2.30 am as he was unable to sleep but does not gave any proper answer as to how he fell and was found near oncology gallery and taken to casualty".

22. This noting by the Doctor of the defendant-hospital immediately

after the plaintiff came to his senses is the first statement recorded of

what had happened and goes contrary to the stand taken by the

defendants, which is presumptuous and an afterthought only to get

over the allegations made by the plaintiff and their relatives. Father of

the plaintiff on 1.11.1988 had submitted a written complaint to the

SHO, Police Station Ambedkar Nagar, alleging criminal negligence.

It is prudent to accept and rely upon the first statement made,

recorded and written in the records by the defendants themselves.

23. The above statement recorded at 4.15 a.m. on 1.11.1988, is

reconfirmed in the recording of Dr.Veena Kapoor, Consultant

Psychiatrist made on 1.11.1988 at 2.00 p.m.:

"2 PM - Patient & brother Seen. Case of Enteric ċ relapse. Had sleep difficulty and decided to go for a walk. After that all he remembers is falling on the steps. Denies any other psych. Discomfort"

CS(OS) No.3413/1991 Page No.14

24. The defendants have examined Mr. Hans Raj, Security Guard,

as DW-2 who had found the patient at about 3.00 a.m. on 1.11.1988

in the Oncology Gallery. In his examination in chief, filed by way of

an affidavit, he has not alleged or stated that plaintiff had jumped

from the third floor. He has stated that he had seen a white object

and upon approaching found a young man of 30 years, dressed like a

patient was lying in an awkward posture. The patient was few feet

away from below window of the room No. 305 on the third floor. The

patient had informed him that he had fallen from the third floor but he

could not give his name and, therefore, the patient was shifted to

OPD/Casualty and subsequently he came to know about his name.

In cross examination he has stated as under:

"Qus: Please explain how did you conclude that the particular patient had fallen from Room No. 305 at IIIrd floor of the hospital?

Ans : When I analysed in the day then I had come to this conclusion that he may have fallen from room no. 305 which was the IIIrd floor of the hospital.

          Qus:      What prompted you to analyse that the
          patient had fallen from which room?
          Ans :     I was prompted to analyse this fact of my
          own."

25. Thus from the cross examination it is clear that there is no firm

basis for the statements made by DW-2 Mr. Hans Raj in his affidavit.

If the plaintiff had stated that he had fallen from the room on the third CS(OS) No.3413/1991 Page No.15

floor it should have been recorded. There is also no explanation why

the alleged statement by the plaintiff made to DW-2, Mr. Hans Raj, or

the assumption drawn by Mr. Hans Raj was not recorded in the

medical file.

26. Learned counsel for the defendants has submitted that there is

no evidence and material to show how and what caused injury to the

plaintiff leaving him paralysed. No one had seen him getting injured

or what caused the said injury. Thus breach of duty and causal

connection with injuries suffered is not established.

27. The plaintiff was in care and custody of the defendants, who

were responsible for his safety and well-being. The defendants were

required to take care and prevent the plaintiff from doing anything that

would cause injury to him. It is not the case of the defendants that

the plaintiff or his relatives had been warned of any such possibility or

were asked to be extra vigilant. Ms. Kajal Chakravorty may have

stayed back in the hospital but no specific duty or responsibility was

assigned to her. She was not a substitute for the hospital staff or to

perform duties of the hospital staff.

28. DW-1, Dr.Arun Dewan in his cross examination has admitted

that generally speaking patients suffering from high temperature of

about 104º have a tendency to become delirious or incoherent though

he has clarified that this is not so in all cases and has stated that the

plaintiff was not delirious or incoherent on 28th, 29th and 30th October, CS(OS) No.3413/1991 Page No.16

1988 as per records. Dr. Arun Dewan has in his cross examination

stated as under:-

"Qus : Generally speaking when a patient is having a temperature as high as 104 degrees Farenheit is there a tendency for the patient to become delirious or incoherent?

Ans : When patient gets a high grade fever that is 104 degrees Farenheit or more than that he can become delirious or incoherent but not in all the cases."

29. As per medical records produced by the defendants, the plaintiff

was suffering from high temperature throughout and had been

advised rest. Three Consultants of the hospital Dr. Sadhoo, Dr.

Veena Kapoor and Dr. Surendra Man Singh in their observations as

recorded on 1.11.1988 and 3.11.1988 have recorded that the plaintiff

was suffering from psychosis (see pages 65, 75 and 69 of the

medical file). Psychosis is a serious but treatable medical condition

that reflects a disturbance in brain functioning and a person

experiencing psychosis can be disoriented and loose contact with

reality. One of the suggestions given by counsel for the defendants to

PW-2, Ms.Kajal Chakravorty in her cross examination is as under:-

"It is correct that on 31.10.1988 the plaintiff was speaking incoherently and with difficulty."

30. There are statements of doctors DW-1, Dr. Arun Diwan and PW-

5, Dr. R.K. Srivastava that fracture of L-1 vertebrae is caused by CS(OS) No.3413/1991 Page No.17

violent injury including fall from a height. It is prudent to prima facie

accept and rely upon the said statements as recorded in the medical

file immediately after the patient was found and taken to the Casualty

as true and correct. Thus there is some evidence or material to

suggest that the plaintiff had left the room at night at about 2.30 a.m.

and had gone down the steps, to take a stroll. The plaintiff had been

confined to bed for almost three days and may be because of high

temperature was incoherent and delirious. The above evidence is

consistent with lack of adequate duty and failure to take proper care

of the plaintiff so as to prevent harm and protect him from acting in a

manner that could cause injury. There is no evidence of steps taken

by the defendants to prevent and stop patients from going for a walk

or going down the steps. The injuries, in view of the facts pleaded

and proved, were prima facie caused by negligence on the part of

the defendants and are more consistent with negligence on the part

of the defendant-hospital than otherwise. Res Ipsa Loquitor is a

principle of evidence effecting onus and states that an accident

speaks for itself. The said doctrine applies when on the basis of

evidence available, inference of negligence can be drawn but

negligence cannot be proved and conclusively established. Therefore

it cannot be applied when there is no evidence consistent with

negligence by the defender or there can be several causes for the

injury which cannot be attributed to the defender. It requires three CS(OS) No.3413/1991 Page No.18

conditions to be satisfied. Firstly, the happening should be

unexplained. Secondly, unexplained would not have happened in

ordinary course without negligence on the part of somebody and

lastly circumstances are a pointer to negligence of the defender

rather than any other person. The last requirement is usually fulfilled

when there is material to establish that the damage/loss was caused

by an instrument/act or omission under the maintenance and control

of the defender. The above doctrine therefore requires facts which

sufficiently indicates and point towards negligence but the real and

actual cause is unknown or known only to the defender. This doctrine

has been explained by Kenndy, L.J in Russell versus L & S.W.Ry.

reported in (1908) 24 T.L.R. 548, 551 as under:-

"The meaning, as I understand, of that phrase ... is this, that there is, in the circumstances of the particular case, some evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that the occurrence took place without negligence. The res speaks because the facts stand unexplained, and therefore the natural and reasonable, not conjectural, inference from the facts shows that what has happened is reasonably to be attributed to some act of negligence on the part of somebody; that is, some want of reasonable care under the circumstances. Res ipsa loquitur does not mean, as I understand it, that merely because at the end of a journey a horse is found hurt, or somebody is hurt in the CS(OS) No.3413/1991 Page No.19

streets, the mere fact that he is hurt implies negligence. That is absurd. It means that the circumstances are, so to speak, eloquent of the negligence of somebody who brought about the state of things which is complained of."

Later, he adds : "Res ipsa loquitur in this sense; the circumstances are more consistent, reasonably interpreted without further explanation, with your negligence than with any other cause of the accident happening."

31. In view of findings given above Res ipsa louitur applies.

Accordingly, the above issues are decided in favour of the plaintiff

and against the defendants.

ISSUE NO. (ii)

32. On the question of quantum of damages, it is an admitted

case of the plaintiff that he was employed with Punjab National Bank

at the time of the incident and continues to remain in employment.

The plaintiff who appeared as PW-1 has however stated in his

examination in chief that his contemporaneous colleagues in 2001

were getting higher salary of about Rs.5000/- p.m. However, he has

not placed on record the salary slips of his colleagues or produced

any documentary evidence in support thereof or adduced evidence

from the Bank. To this extent there is lack of evidence, yet it cannot

be denied that the plaintiff‟s future prospects of further rise,

promotions etc. have suffered, causing monetary loss.

CS(OS) No.3413/1991 Page No.20

33. Plaintiff has produced certificate of hundred percent disability

Exhibit PW1/4. In this connection, the plaintiff had also produced

Dr.R.K.Srivastava (PW-5) who had issued the said certificate. It is

admitted by the defendants that the plaintiff is paraplegic waist

downwards. The plight, stress and strain as well as the difficulties and

problems faced by the plaintiff are understandable. One can also

visualise the day to day difficulties and help required by the plaintiff

and extra expenditure that he must be incurring on medicines, help,

etc. Able and healthy body is cherished and loss thereof is difficult to

quantify. It is difficult to measure loss of happiness, limb etc. The

plaintiff is entitled to both pecuniary and non pecuniary damages like

prospective loss of earnings, medicinal expenses, future prospects,

pain and suffering, mental and physical shock, loss of amenities in

life, disfigurement, discomfort or inconvenience, hardship, mental

stress etc. (See R.D. Hattangadi versus Pest Control (India) Pvt.

Ltd. reported in (1995) 1 SCC 551 and Lata Wadhwa versus State

of Bihar reported in (2001) 8 SCC197).

34. Keeping these aspects in mind, I feel that the plaintiff is

entitled to damages of Rs.7 lacs from defendant no.1. While

quantifying the above amount I have taken into account both

pecuniary, non pecuniary damages, the fact that the plaintiff

continues to remain employed, no pendent lite interest is being

awarded and the incident is of 1988.

 CS(OS) No.3413/1991                 Page No.21




              ADDITIOINAL ISSUE

              "Whether the Suit is barred by limitation? "

35. By Order dated 22.8.2008 the parties were directed to

address arguments on the question of limitation, though the said plea

was not raised by the defendants. The plaintiff was discharged from

hospital on 23.12.1988 and the present Suit for

compensation/damages was filed on 29.10.1991.

36. First Division of the Schedule to the Limitation Act, 1963

(hereinafter referred to as the Act, for short) prescribes limitation

period for filing of suits. Part VII thereof relates to suits relating to

torts and the same are governed by Articles 72 to 91. Scrutiny of the

said Articles reveals that the said Articles are not applicable to a suit

based on torts claiming compensation for injury suffered. Article 72 of

the Act is not applicable as it only applies when there is failure to

comply with an enactment. Plaintiff has not claimed damages for

failure of the defendants to comply with any enactment in force. The

Act therefore makes a distinct departure from the Limitation Act, 1908

and Article 22 of Limitation Act, 1908 has been partly re-enacted in a

different language. As already stated above, Article 72 of the Act

applies to cases for compensation for failure to comply with any

enactment in force. In view of the above, the present Suit is governed CS(OS) No.3413/1991 Page No.22

by Article 113 of the Act and the period of limitation prescribed therein

is three years.

37. Accordingly, this issue is decided in favour of the plaintiff and

against the defendants.

RELIEF

38. A decree of Rs.7 lacs with costs is passed in favour of the

plaintiff and against the defendant no.1. The plaintiff will be entitled

interest @ 12% per annum from the date of judgment till payment is

made.

                                                (SANJIV KHANNA)

                                                     JUDGE

DECEMBER              02 , 2008.

NA/P