Govt. Of Nct Of Delhi & Ors. vs Sudha Devi & Anr.
2008 Latest Caselaw 1791 Del

*                 IN THE HIGH COURT OF DELHI

                      Judgment reserved on : September 10, 2008
%                     Judgment delivered on : October 1, 2008


+                      RFA 547/2007


GOVT. OF NCT OF DELHI & ORS.                 ..... Appellants

                  Through:   Mrs.Avnish Ahlawat, with Ms.Latika
                             Chaudhary, Advocates

            VERSUS

SUDHA DEVI & ANR.                            ..... Respondents

                  Through:   Mr.M.L. Sharma, Advocate


CORAM:

Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha

1. Whether reporters of local papers may be allowed
   to see the judgment?                          Yes.

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

3. Whether judgment should be reported in Digest?         Yes.


: PRADEEP NANDRAJOG, J.

1. Sudha Devi was admitted to the 'Maternity Ward'

of G.T.B. Hospital, Shahdara on 7.7.2003 as an expectant

mother. A caesarian section had to be performed. A male

child was born to her the same day at 2.30 p.m. Needless to

state because of the surgery, Sudha Devi was administered

pain killers, sedatives and antibiotics which obviously affected

her mental alertness. Being a Female Ward, no male

members were allowed to stay in the ward. She had no

female relatives to look after her and a lady in the

neighbourhood, Indu volunteered to give her company in the

hospital.

2. At around 4:30 AM on 8.7.2003 the infant was

found missing. Obviously the infant had been kidnapped. A

FIR under Section 363 IPC, being FIR No.157/2003 was

registered with the local police at P.S. Dilshad Garden. The

infant could not be found.

3. Sudha Devi sued the hospital authorities as also

the Government of NCT Delhi which had established the

hospital for damages. She impleaded the Commissioner of

Police Delhi as also the Union of India as parties. She claimed

Rs.5 lacs as compensation.

4. She succeeded. Vide impugned judgment and

decree dated 24.7.2007, holding defendants No.1, 2 & 3,

guilty of negligence the suit stands decreed. The

Commissioner of Police has been let off on the finding

returned that police personnel were posted around the

hospital to maintain general law and order and were not

charged with the obligation to ensure that only authorized

persons enter and exit the hospital. Indeed, the police

personnel would have no means to decide or determine as to

who should enter the hospital or who should exit the same.

5. The learned Trial Judge has believed the testimony

of Sudha Devi who appeared as PW-1 and Indu who appeared

as PW-3.

6. In her testimony Indu deposed that her young son

was with her at the hospital and at about 4.30 a.m. on the

fateful day she had to take him to the toilet. When she

returned from the toilet she found that the male child born to

Sudha Devi was missing. She stated that the Doctors were

informed of the same and a complaint was lodged with the

police. She stated that a search was made for the missing

infant child but he could not be found.

7. The defence examined Dr. N.K. Sinha, the

Additional Medical Superintendent of the hospital as D2/W1.

The SHO, P.S. Dilshad Garden was examined as D4/W1.

8. Dr. N.K. Sinha who was not posted at the hospital

when the incident took place, being posted at the hospital

since November 2005, corroborated Sudha Devi that a male

child was born to her after a caesarian section at 2.30 p.m. on

7.7.2003 and she was shifted from the Labour Ward to the

General Ward in the evening of 7.7.2003. He stated that the

new born child was handed over to the attendant

accompanying the patient. He deposed that :-

"The female ward is taken care by the

professor of Gynae Department. There are security persons deployed in each ward who checked the entry and exit of the patient and their attendant. There is no register maintained as to who has come in Ward No.13 and gone out. It is wrong to suggest that any person can enter in any ward only the authorized persons are permitted to enter by the security staff."

9. D4/W1, SHO of P.S. Dilshad Garden deposed about

the registration of the FIR. He stated that he could not furnish

the names of the police officers who were deployed at G.T.B.

Hospital when the incident took place.

10. Learned Trial Judge has held that it was the duty of

the hospital to ensure that the patients admitted at the

hospital are not visited with any harm. Emphasis has been

laid by the learned Trial Judge on extra care required to be

taken at the Maternity Ward where the young mothers, after

delivery, would presumably be not in their full senses and

especially those mothers who have undergone caesarian

sections. Due to effects of anesthesia and sedatives, the

learned Trial Judge has held, that such mothers would

presumably be drowsy.

11. Damages in sum of Rs.5 lacs have been awarded

to Sudha Devi. The suit has been dismissed against the

Commissioner of Police. The hospital, the Government of NCT

Delhi and the Union of India have been made jointly and

severally liable to satisfy the decree.

12. Ms.Avnish Ahlawat, learned counsel for the

appellants urged that merely because security is deployed at

the hospital by the hospital authorities does not mean that the

patients and their attendants are absolved of the duty to take

care of themselves or their children and wards. Learned

counsel urged that the hospital being run by the Government

of NCT Delhi does not charge any money and hence would not

be responsible for the safety of the patients admitted at the

hospital. Learned counsel urged that admittedly Sudha Devi

was accompanied by Indu who was the attendant and thus, it

was the duty of Indu to take care of the infant. Lastly, learned

counsel urged that the compensation in sum of Rs.5 lacs is

excessive.

13. The jurisprudential concept of negligence defies

any precise definition. We do not intend to catalogue the

various definitions of negligence but would note that each

definition recognizes two essential components of negligence,

that is to say:-

(i) The existence of a duty to take reasonable care which is owed by the alleged tortfeasor to the person aggrieved;

(ii) The failure to attend the duty of reasonable care.

14. On proof of the twin, the resultant damages which

are the direct and inevitable (i.e. reasonably forseable)

consequences of negligence have to be borne by the

tortfeasor qua the injured person.

15. What amounts to negligence depends on the facts

of each case. It may consist in omitting to do something

which ought to be done or not doing something which ought

to be done, either in a different manner or not at all. Where

there is a duty to exercise care, reasonable care must be

taken to avoid acts or omissions which can be reasonably

foreseen to be likely to cause injury to a person or property.

16. The degree of care required to be taken depends

on the surrounding circumstances of each case and varies

proportionately with the risk to be encountered and the

magnitude of the prospective injury. Further, a person may

reasonably be expected to take extra care on account of

better knowledge of the facts.

17. No doubt, a person is in general, entitled to

assume that others will comply with statutory regulations but

not that they will take reasonable care to look out for

themselves or will take reasonable steps to avoid common

risks when experience shows negligence to be common. This

was held in the decisions reported as 1947 (2) All ER 350

Admiralty Commissioners Vs. North of Scotland and Orkney

and Shetland Steam Navigation Co., Ltd. and 1949 (1) All ER

60 London Passenger Transport Board Vs. Upson and Anr.

The latter decision applied the principle in relation to drivers

of vehicles being aware of the fact that at controlled crossings

pedestrians had the tendency to cross over even when the

signal for the pedestrians is red in colour. It was held that in

view of this fact of pedestrians being negligent being known

to the drivers a extra duty to be vigilant at controlled

crossings was required to be maintained by the drivers

keeping in knowledge negligent pedestrians.

18. A higher degree of care is required of those who

know of or ought to foresee the presence of the disabled; the

immature; the feeble minded or persons with a feeble body.

Similarly, the duty of care owed to a child will be more strict

so as to take account of the likelihood of the child being

endangered by the act of the tortfeasor.

19. Merely because the defendants is exercising a

common calling akin to a charitable cause does not exclude

the duty of reasonable care to be observed, as was held in the

decision reported as (1936) 1 All ER 557 Shiffman Vs. The

Grand Priory in the British Realm of the Venerable Order of the

Hospital of St. John of Jerusalem.

20. Referring to the facts of the instant case, the fact

that an untoward incident may happen at the maternity ward

and it being anticipated stands proved by the testimony of

D2/W1, Dr. N.K. Sinha, the Additional Medical Superintendent

of the hospital who stated that security persons are deployed

in each ward to regulate and check the entry and exit of the

patients and their attendants. The denial in cross-

examination to the suggestion that people had unrestricted

entry in the ward, evidences that those in charge of the

hospital were aware that entry of unauthorized persons has to

be prevented inside the hospital. The hospital authorities

have thus accepted that they owed a duty of care to the

patients and the newly born at the Maternity Ward, to protect

their person and their belongings, having regard to the

condition which were reasonably anticipated i.e. entry of

unauthorized persons in the wards. Thus it was necessary,

indeed it was the duty of the hospital authorities, to take

effective measures to secure that the ward was watched and

protected from unauthorized persons, prohibiting their entry

within the precincts of the Maternity Ward.

21. We need to speak no further nor do we need to

elaborate with reference to any further fact.

22. That the infant child was kidnapped from the

hospital is an admitted fact. That Sudha Devi had undergone

a caesarian section at around 2.30 p.m. on 7.7.2003 is an

admitted fact. That the infant was found missing at around

4.30 a.m. the next day i.e. 8.7.2003 is also an admitted fact.

23. We concur with the view taken by the learned Trial

Judge that Sudha Devi was entitled to recover damages from

the hospital authorities and the Government of NCT Delhi

which had established the hospital.

24. But we do not understand as to how Union of India

would be responsible for what had happened, inasmuch as the

hospital was neither established nor maintained by the Union

of India.

25. On the issue of quantum of damages we may note

that in cases of infants and minors, conventional damages are

awarded inasmuch as there is no evidence before the Court as

to what would be the future career of the child. It is not

known as to how the child would flower in life. We are guided

by the decision of the Hon'ble Supreme Court reported as AIR

2001 SC 3660 Ms.Garewal & Anr. Vs. Deep Chand Sood & Ors.

Young school students had drowned while on a picnic due to

the negligence of the school authorities. The incident took

place on 28.5.1995. The unfortunate children were students

of class IVth, Vth and VIth. Compensation awarded to the

parents who lost their children was Rs.5 lacs.

26. The pain and suffering of the parents whose child is

dead would be less than the pain and suffering of parents

whose child is lost and is not found. The reason is that the

human mind finds solace in a death by believing that the body

is free from the troubles of life and the soul has found a

comfortable abode in some other form. But where a child is

lost, but is in the world of living, the trauma of the well-being

of the child is suffered by the parents each year of their life.

Every joyous occasion; every festival and every holiday brings

back the memory of the missing child and the thought is

bound to float in the mind of the parents: is our child happy.

Is he well fed. Where is he. Hopefully he is not a bonded

labour somewhere. Hopefully a gang of beggars has not

maimed our child and put him on the streets to beg. These

floating thoughts make painful the memory of the lost child

and is a continuous trauma for the parents for all their life.

27. Recompense for mental pain and suffering is an

essential attribute of a non-pecuniary loss to be recompensed.

28. Additionally taking note of the fact that the learned

Trial Judge has not granted any interest to Sudha Devi we hold

that no case is made out to interfere with the quantum of

damages awarded.

29. We find no merit in the appeal insofar as the

hospital and the Government of NCT Delhi have challenged

the impugned judgment and decree. We accept the appeal in

favour of the Union of India.

30. The appeal is allowed qua Union of India. The

impugned judgment and decree dated 24.7.2007 is set aside

qua Union of India and the suit filed against Union of India is

dismissed. We affirm the impugned judgment and decree

against G.T.B. Hospital and the Govt. of NCT Delhi.

31. The Government of NCT Delhi and G.T.B. Hospital

are held jointly and severally liable to pay Rs.5 lacs to the

plaintiff. They shall additionally pay the costs in the appeal to

the respondent No.1.

32. Since the appeal is dismissed, the money

deposited by the appellants pursuant to the order dated

22.10.2007 be released to the respondent No.1 together with

interest which has accrued thereon.

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.

October 1, 2008 rk