Delhi High Court
Ashish Kumar Mazumdar vs Aishi Ram Batra Charitable Trust & ... on 23 December, 2009
Author: Sunil Gaur
* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on : December 10, 2009
Judgment delivered on : December 23, 2009
+ (1) R.F.A. (OS) No. 7/2009
% Ashish Kumar Mazumdar ... Appellant
Through: Mr. K.K. Rai, Senior Advocate with Mr.
Manoj Chatterjee, Ms. K. Iyer and Mr.
B. Sengupta, Advocates.
versus
Aishi Ram Batra Charitable Trust & Ors.... Respondents
Through: Mr. A.B. Dial, Senior Advocate with
Mr.Manvendra Verma and Ms.
Rachna, Advocates.
AND
+ (2) R.F.A. (OS) No. 23/2009 &
C.M. Appl. No. 12532/2009
% Ch. Aishi Ram Batra Public Charitable
Trust & Ors. ... Appellants
Through: Mr. A.B. Dial, Senior Advocate with
Mr.Manvendra Verma and Ms.
Rachna, Advocates.
versus
Sh. Ashish Kumar Mazumdar ... Respondent
Through: Mr. K.K. Rai, Senior Advocate with Mr.
Manoj Chatterjee, Ms. K. Iyer and Mr.
B. Sengupta, Advocates.
CORAM:
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local
papers may be allowed to see
the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be
reported in the Digest?
R.F.A. (OS) No. 7/2009 & 23/2009 Page 1
SUNIL GAUR, J.
1. Tortious liability, i.e., breach of legal duty with liability for
damages is the subject matter of these two appeals, which arise
out of common impugned judgment of December 02, 2008,
whereby learned Single Judge has decreed the suit for damages
of Shri Ashish Kumar Majumdar against Ch. Aishi Ram Batra
Public Charitable Trust for a sum of Rupees Seven Lacs with
interest @ 12% per annum. Batra Hospital, where Shri Ashish
Kumar Majumdar (henceforth referred to as „Plaintiff‟) was
admitted for treatment, is managed by Ch. Aishi Ram Batra Public
Charitable Trust.
2. In the appeal, (R.F.A. (OS) No. 23/2009) preferred by the
Batra Hospital Trust, finding of negligence returned by the
learned Single Judge in the impugned judgment is assailed and
the dismissal of the suit of the „Plaintiff‟ has been sought,
whereas in the appeal by „Injured‟ - Plaintiff (R.F.A. (OS) No.
7/2009), enhancement of quantum of damages with interest from
the date of institution of the suit has been prayed for.
3. With the consent of the parties, both these appeals were
heard together and are being disposed of together by this
common order.
4. The facts are not in dispute. What is disputed, is the
attribution of negligence. Neither side is certain, as to how this
unfortunate incident took place on the night intervening 31st
October, and 1st November of the year 1988, in the Batra Hospital
R.F.A. (OS) No. 7/2009 & 23/2009 Page 2
(hereinafter referred to as Defendant-Hospital). On 27th October,
1988, Plaintiff - a bachelor, aged about 30 years, was admitted in
the Defendant - Hospital with past history of intermittent fever for
one month and was clinically diagnosed as a case of relapse of
partially treated typhoid fever. On 28th October, 1988, the
temperature of the Plaintiff was 104 o F and it continued to remain
high.
5. In the morning of 31st October, 1988, the doctors of
Defendant - Hospital decided to stop administering Perinorm drug
as they suspected that the said medicine has induced speech
disorder in the Plaintiff. To combat this disorder, Plaintiff was
injected with a specific drug - Phenargan, on that day, at 10.00
AM, as per the Defendant-Hospital records. Plaintiff was an indoor
patient in Room No.305 on third floor of the Defendant - Hospital
building and his sister Kajal was with him in the room on the
fateful night. At about 2.20 AM in the night, she noticed that the
Plaintiff was not in the room and she promptly informed the staff
nurse on duty and then a search was conducted to trace out the
Plaintiff. Hans Raj, security guard of the Defendant-Hospital
reported that the Plaintiff was lying in an awkward position on the
ground floor in the oncology gallery of the Defendant-Hospital at
a distance of 50 yards from a point immediately below the
window of Room No.305. The oncology gallery is an open to sky
passage on the ground floor between the private room building
and the Oncology Ward. Plaintiff suffered multiple fracture of
lumbar vertebrae with complete dislocation of the spinal cord and
R.F.A. (OS) No. 7/2009 & 23/2009 Page 3
despite treatment, he became paraplegic, i.e., 100% disabled
below the waist.
6. According to the Plaintiff, at the time of this incident, he was
under the care and custody of the Defendant-Hospital, who had
failed to take reasonable care and because of the negligence of
the Defendant - Hospital, he is confined to a wheel chair for rest
of his life and he needs a full time attendant to look after him. He
is still Junior Assistant in Punjab National Bank and he claims that
prospects of his promotion are quite bleak. Though the damages
claimed by the Plaintiff were Rupees Fifty Eight Lacs or so, whose
break up is given in para 32 of the plaint, but, he had restricted
his claim for damages to Rupees Twenty Five Lacs, as he could
not make arrangements for the full court fee.
7. The stand of the Defendant - Hospital, throughout has been
that it cannot be held responsible for the Plaintiff's act of jumping
out of the window of his room, especially when, his sister was
there in the room as attendant and so, the injuries sustained by
the Plaintiff and the consequent complications suffered by him
cannot be said to be result of any negligence on its part. There is
emphatic denial of any injection being administered to the
Plaintiff in the night of 31st October, 1988.
8. In the suit proceedings, four issues were claimed by the
parties to it and out of them, first and the fourth pertained to the
core issue of lack of care and attention by Defendant-Hospital in
attending to the Plaintiff and of there being cause of action for
R.F.A. (OS) No. 7/2009 & 23/2009 Page 4
the Plaintiff to claim damages. Both the sides had led their
respective evidence. Apart from the evidence of the Plaintiff,
(PW-1), there is evidence of his sister Kajal Chakravoty (PW-2),
and of his brother Mr. Ashok Kumar Majumdar, (PW-3). Sub-
Inspector Kailash Chand, (PW-4), of Police Station Ambedkar
Nagar, South Distt., New Delhi, proves the police complaint made
by father of the Plaintiff on 01.11.1988 regarding this incident.
The Disability Certificate Ex. PW-1/14 of the Plaintiff stands
proved on record by Dr. R.K. Srivastava, (PW-5).
9. Whereas, Defendant's evidence comprises of the deposition
of Dr. Arun Dewan (DW-1) who had treated the Plaintiff and that
of Security Guard - Hans Raj (DW-2) of Defendant-Hospital, who
was on duty in the porch area of oncology open gallery of
Defendant - Hospital, at the time of this incident.
10. Aforesaid Issue no. (i) and (iv), have been decided together
by the learned Single Judge and the finding of negligence
returned is against the Defendant - Hospital. The Second Issue of
entitlement of the Plaintiff to damages/compensation and its
quantum has been decided in favour of the Plaintiff and the
damages have been quantified at Rupees Seven Lacs with
interest. The Third Issue relating to maintainability of the suit was
not pressed before the learned Single Judge and the finding
returned on the Additional Issue of Limitation is also in favour of
the Plaintiff.
R.F.A. (OS) No. 7/2009 & 23/2009 Page 5
11. The proceedings in the Suit concluded with passing of a
decree of damages quantified at Rupees Seven Lacs with interest
@ 12% per annum payable from the date of the impugned
judgment. In these two appeals, Plaintiff wants enhancement of
the damages/ compensation awarded and the Defendant seeks
setting aside of the impugned judgment and the dismissal of
Plaintiff's Suit for damages.
12. Learned senior counsel for the parties have addressed this
Court in extenso for days together and have painstakingly taken
us through the entire evidence on record.
13. During the course of hearing, decisions reported in (1944)
1 K.B. 421; (1947) 1 All E.R. 344; (1951) 2 K.B. 343; (1971) 2 All
ER 1240; (1974) 1 SCC 690; (1976) 1 SCC 793; (1988) R.T.R. 298;
(1951) H.L. (E.) 850; (1964) 1 All E.R. 98; (1990) 3 All ER 237;
(2005) 6 SCC 1; 2009 (7) SCALE 407; AIR 1953 Supreme Court
235; AIR 1969 SC 1291; AIR 1981 SC 1726; AIR 2003 SC 4319;
(2003) EWCA Civ 878; (2009) 6 SCC 1; (1985) 1 SCC 231 have
been meticulously referred to, by learned senior counsels for the
parties.
14. The impugned judgment deals with the crucial issue of lack
of care and attention on the part of the Defendant - Hospital in a
most systematic manner. In the first instance, the law on the
subject, i.e., of "duty to take care" has been adverted to by the
learned Single Judge and then the foresight test has been
applied. The view taken is that Quality of Care expected from
R.F.A. (OS) No. 7/2009 & 23/2009 Page 6
specialized private hospitals is not ordinary but of a high degree.
The medical record of the Plaintiff has been relied upon by the
learned Single Judge in the impugned judgment and it reveals
that the alleged history given by the Plaintiff after this incident
was of having sleep difficulty and deciding to go for a walk and
all that Plaintiff remembered was falling on the steps. The
evidence of Dr. Arun Dewan of Defendant-Hospital has been
referred to, regarding patient becoming delirious or incoherent in
case of high grade fever. The suggestion given by the Defendant-
Hospital to Ms. Kajal, (PW-2) sister of the Plaintiff in cross-
examination, of Plaintiff's speaking incoherently and with
difficulty on 31st October, 1988, i.e., the day of the incident, has
been admitted by her. Furthermore, the medical record of the
day of this incident clearly indicated that the Plaintiff continued to
have high fever. On the basis of this medical record, learned
Single Judge arrived at a conclusion that the Plaintiff was delirious
and had gone out of his room for a stroll as he was not able to
sleep and a strict vigil by the hospital staff was required to
prevent a patient from taking steps or acting in a manner that
could cause injury or harm. The stand of the Defendant-Hospital
of Plaintiff jumping out of the window of his room has been
rejected by the learned Single Judge on preponderance of
probability. While applying principle of „res-ipsa loquitur‟, learned
Single Judge has drawn inference of negligence against the
Defendant-Hospital.
R.F.A. (OS) No. 7/2009 & 23/2009 Page 7
15. Aforesaid finding of the learned Single Judge has been
challenged by learned senior counsel for the Defendant-Hospital
by contending that the principle of „res-ipsa loquitur‟ has been
incorrectly applied by the learned Single Judge to the facts of this
case and the learned senior counsel for the Defendant-Hospital
has referred to number of English decisions, as noted above, to
assert that the principle of „res-ipsa loquitur‟ is inapplicable to the
facts of the instant case and the burden of proof never shifts and
is always upon the person who alleges negligence.
16. Learned senior counsel for the Defendant-Hospital has
emphatically contended that the Court cannot make out a new
case and the decision has to be rendered based on the pleadings
of the parties. It was pointed out that the Plaintiff had jumped out
of the window of his room and for this act of the Plaintiff,
Defendant - Hospital cannot be held responsible because sister of
the Plaintiff was very much present in the room and this fact
stands affirmed by the Plaintiff himself in his replication. An effort
has been made by learned senior counsel for the Defendant-
Hospital to show that there is variation in the version of this
incident as given in the police complaint vis-à-vis the version of
this incident in the plaint and also in the evidence of the brother
and sister of the Plaintiff. According to learned senior counsel for
the Defendant-Hospital, there was no negligence on the part of
the Hospital and therefore, the impugned judgment deserves to
be set aside and the suit of the Plaintiff ought to be dismissed.
R.F.A. (OS) No. 7/2009 & 23/2009 Page 8
17. Learned senior counsel for the Plaintiff supports the
impugned judgment by asserting that the conclusions arrived at
by the learned Single Judge are based on cogent evidence and
there is no admission in the replication about Plaintiff jumping out
of the window of his room and since Plaintiff was in delirium and
was under care and management of the Defendant-Hospital,
therefore, they owe an explanation regarding happening of this
incident. Learned senior counsel for the Plaintiff states that the
principle of „res-ipsa loquitur‟ has been rightly applied by the
learned Single Judge in holding the Defendant-Hospital
responsible for this incident, but the damages awarded are highly
inadequate and they deserve to be suitably enhanced.
18. Nothing else has been urged on behalf of either side.
19. Before adverting to the rival submissions of the parties, it
would be appropriate to first deal with the application of
Defendant-Hospital seeking permission to lead additional
evidence by way of placing on record the drawings/maps
(Annexure-1 and Annexure-2) of the Defendant - Hospital to show
that below the window of Room no.308-305 etc., there is open
space which is 15 feet wide and is popularly known as 'Oncology
Gallery/Corridor'. There is a vague reference in this application to
some photographs submitted by the Defendant-Hospital in the
Court on the last date of hearing. Notice of this application was
issued to the opposite side and liberty was granted to file reply,
which has not been filed. Such like applications cannot be
R.F.A. (OS) No. 7/2009 & 23/2009 Page 9
routinely allowed on the premise that there is no opposition to it.
Applicant has to make out a case as to why the evidence now
sought to be led was not produced in the suit proceedings/trial
Court. No such explanation is coming forth in the application nor
it has been so argued. Moreover, the two site plans Annexure-1
and Annexure-2, accompanying this application in respect of
which additional evidence is sought to be led are mere
photocopies and are not duly authenticated by its maker.
Moreover, taking on record, this additional evidence cannot be
said to be essential for the just decision of this case, as these
documents do not indicate with precision, the place where
plaintiff had fallen or the place from where Security Guard saw
the Plaintiff lying in awkward position on the ground. In these
circumstances, we are not inclined to allow this application and it
merits rejection. It is accordingly rejected.
20. Before coming to the merits of this case, it needs to be
noticed that the Plaintiff had given up the challenge to the
diagnosis, medical procedure and the treatment given in the
Defendant-Hospital. Therefore, reliance placed upon decisions of
the Apex Court, in Jacob Mathew [(2005) 6 SCC 1] and Nizam's
Institute [(2009) 6 SCC 1], is misplaced as these two cases
pertained to medical negligence.
21. There can be no straight jacket formula to marshal out as to
what set of cases, the principle of „res-ipsa loquitur‟ would apply.
Many English Decisions have been cited where on the peculiar
R.F.A. (OS) No. 7/2009 & 23/2009 Page 10
facts, it was concluded that this principle would not apply, but
there are few decisions of the Apex Court, in Krishna Bus
Service, (1976) 1 SCC 793 and of Shyam Sunder, (1974) 1 SCC
690, where this principle has been applied. It has also been
applied in Cassidy vs. Ministry of Health, (1951) 2 K.B. 343,
which is somewhat akin to the present case as it had dealt with
the liability of the hospital for the negligence of the medical staff.
The doctrine of „res-ipsa loquitur‟ was applied and it was held
that the onus lay on the hospital authority to prove that there had
been no negligence on its part or on the part of anyone for whose
acts or omissions, it was liable and that onus had not been
discharged.
22. In the instant case, learned Single Judge has applied „res-
ipsa loquitur‟, a principle of evidence effecting onus. This doctrine
of „res-ipsa loquitur‟ applies when on the basis of evidence
available, inference of negligence can be drawn when the
negligence cannot be proved and conclusively established. The
three conditions which are required to be satisfied for invoking
this doctrine, have been taken note of by the learned Single
Judge, and are as under:-
"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
R.F.A. (OS) No. 7/2009 & 23/2009 Page 11
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 actual cause is unknown
or known only to the defender."
23. Paragraph 16 of the impugned judgment logically explains
the necessity of invoking the principle of „res-ipsa loquitur‟ in the
instant case. This reasoning appeals to us and deserves to be
taken note of and is as under:-
"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, 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
R.F.A. (OS) No. 7/2009 & 23/2009 Page 12
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 the clock safety checks are required to
prevent a patient from taking steps or acting in a
manner that could cause injury or harm."
24. Needless to say that a common sense approach is to be
adopted in a matter like present one. Balance of probabilities
ought to be the yardstick. The true test has to be of
foreseeability. In each case, a balance must be struck between
the magnitude of the risk and the burden on the Defendant in
doing or not doing, what should have been done? The law in all
such cases, exacts a degree of care commensurate with the risk.
In some cases, where there is only a remote possibility of injury,
R.F.A. (OS) No. 7/2009 & 23/2009 Page 13
no precaution need be taken. The application of „standard of
reasonable care‟ in a particular case is a question of fact and
cannot be put under the weight of accumulated precedents. In
every case, where „a duty of care‟ exists, the Court must consider
the applicability of „res-ipsa loquitur‟. It is, of course,
understandable that if the Defendant - Hospital had succeeding in
proving that the Plaintiff had jumped outside the window of his
room, then, question of negligence on its part does not arise.
25. Impugned judgment conclusively rules out the possibility of
the Plaintiff jumping out of the window of his room and in this
regard, reliance has been placed upon the affidavit of the Medical
Director of the Defendant - Hospital which indicates that the
window in the room of the Plaintiff was three feet above the floor
level of the room and the width of the window was just one feet.
There was three feet wide ledge outside the said window which
was further protected by three feet high steel hand rails and tow
rails. Learned Single Judge has relied upon the aforesaid affidavit
of the Medical Director of Defendant-Hospital as well as the
photographs to reach most probable conclusion that a sick
patient like the Plaintiff who had been suffering from high fever
for a month or so, would hardly have any physical strength to
manage to climb out of the window of his room and would also
cross the ledge outside the window which was protected by high
steel railing and land himself at a place, which was at some
distance from below the window of his room. Impugned judgment
also takes note of the fact that the medical file of the Plaintiff did
R.F.A. (OS) No. 7/2009 & 23/2009 Page 14
not reveal that he was depressed or was having suicidal
tendency. Another pertinent aspect, which has been taken note
of, in the impugned judgment, is that upon learning about
missing of the Plaintiff, when the hospital staff had rushed into
the room of the Plaintiff, they did not notice if the window of his
room was open or not? Since the room was centrally air
conditioned, it would have been certainly noticed by the nursing
or the security staff if the window of the room was open after this
incident. It is nobody's case that the window of the room of the
Plaintiff had been or could have been closed from outside.
Medical record does not indicate that Plaintiff had made any
suicide attempt by jumping from the window of his room. The
noting in the medical record is to the contrary.
26. The alleged history given by the Plaintiff after this incident
to the doctor of the Defendant - Hospital was that he had gone
for a walk as he was unable to sleep. Since Plaintiff was in
delirium, therefore, all that he remembered is that of falling on
the steps. There is evidence of the Security Guard that the
Plaintiff was found lying in the Oncology Gallery/Corridor, a few
feet away from immediately below the window of the room of the
Plaintiff. In this view of the matter, neither the reasoning nor the
conclusion arrived at by the learned Single Judge of Defendant -
Hospital failing to prove that Plaintiff had jumped out of window
of his room, is unwarranted.
R.F.A. (OS) No. 7/2009 & 23/2009 Page 15
27. An attempt by Defendant - Hospital to wriggle out of the
aforesaid conclusive finding by relying upon a so-called admission
of Plaintiff jumping out of window of his room is futile. In fact, it
was the positive case of the Defendant - Hospital that the Plaintiff
had jumped out of the window of his room and in Replication,
what has been stated is that the Defendant admits that Plaintiff
had jumped out of the window of his room. Though, this stray
sentence is not happily worded, but it certainly cannot be read to
be an admission on the part of the Plaintiff. In any case, even
admissions can be shown to be wrong. In fact, it has never been
the case of the Plaintiff that he had jumped out of window of his
room. Medical record reveals the initial version of the Plaintiff of
this incident of his having walked out of his room to have a stroll
as he was not able to sleep.
28. In normal course of events, it is highly unlikely that the
hospital staff or the nursing staff on duty at the Nursing counter
in the corridor outside the room of the Plaintiff would not have
noticed the Plaintiff walking in the corridor past midnight, had
they been awake or present there. There is no cross-examination
of the Plaintiff on this vital aspect. Nor anyone from the nursing
staff, supposed to be present at Nursing Station in the corridor,
has been got examined by the Defendant - Hospital. To rule out
any negligence on its part, it was incumbent upon the Defendant
- Hospital to have got examined the nursing/para-medical staff,
which was on duty on the floor where the room of the Plaintiff
was located. In the absence of authenticated site plan of the
R.F.A. (OS) No. 7/2009 & 23/2009 Page 16
spot, Defendant-Hospital fails to prove the exact place, where
plaintiff had fallen. This was crucial for establishing the case of
the Defendant-Hospital. Even the photographs to effectively
indicate the spot are not on the record. For this vital lacuna, the
Defendant - Hospital has to suffer the consequences.
29. The so-called variation in the version regarding this incident
inter-se police complaint and the plaint, vis-a-vis the evidence of
brother and sister of the Plaintiff, not much is required to be said,
for the reason that it is cardinal principle of law that before any
adverse inference is drawn against a witness regarding any
improvement, variation or diversions, the same has to be put to
the witness and if this is not done, then no advantage accrues to
the opposite party. Otherwise also, we find that the so-called
variation in the version of this incident in the police complaint,
vis-à-vis, the oral testimony of the Plaintiff is inconsequential. It
cannot be forgotten that a police complaint or an FIR is not an
encyclopedia and it is just a first information of an incident and it
is not supposed to contain minor details of the incident. It is a
matter of record that the police complaint was not made by the
Plaintiff but was given by his father. In any case, nothing turns on
it.
30. In all fairness to the Defendant-Hospital, it needs to be
pointed out that the doctor, who treated the plaintiff has claimed
that on 31st October, 1988, at 10.00 a.m., the plaintiff was
administered Phenargan Injection, whose effect lasts for 10-12
R.F.A. (OS) No. 7/2009 & 23/2009 Page 17
hours. During the course of hearing, much emphasis was laid by
learned senior counsel for Defendant-Hospital upon negating
plaintiff's version of administering Phenargan drug to him at
10.00 pm on that eventful day, i.e., on 31st October 1988 thereby
certainly making the plaintiff's delirious. It is true that medical
record produced by the Defendant-Hospital reveals that
Phenargan Injection was administered to the plaintiff at 10.00 am
on that day but does not rule out administering it again at night
as Dr. Arun Diwan does not categorically rule it out. The best
evidence to resolve this controversy was the production of
medical record of evening of 31st October 1988. For reasons best
known, it has been withheld by the Defendant-Hospital. This calls
for drawing of adverse inference against the Defendant-Hospital.
Had it been produced, it would have revealed if in the evening of
31st October, 1988, plaintiff had high grade fever justifying
delirious condition of the plaintiff.
31. From the medical record of the Defendant-Hospital itself, it
emerges that the Plaintiff had walked out of his room in the
Corridor for having a walk as he was not able to sleep and since
the Plaintiff was under care and management of the Defendant-
Hospital, therefore, it was incumbent upon the Defendant-
Hospital to have given a reasonable explanation as to how this
incident took place. The explanation given by the Defendant-
Hospital of Plaintiff jumping out of window of his room hardly
merits acceptance for the reasons noted above. Learned Single
Judge has rightly rejected the theory of Plaintiff jumping out of
R.F.A. (OS) No. 7/2009 & 23/2009 Page 18
window of his room as propounded by the Defendant-Hospital.
We find no reason to take a different view.
32. Sheet anchor argument advanced on behalf of the
Defendant- Hospital is that Court cannot make out a new case
and the decision has to be rendered on the case pleaded. To
support this argument, reference has been made by learned
senior counsel for the Defendant-Hospital to the decisions of the
Apex Court reported in AIR 1953 Supreme Court 235; AIR 1969
SC 1291; AIR 1981 SC 1726 and AIR 2003 SC 4319. There can be
no two opinions about it. However, what is required to be pleaded
are the facts and not the evidence. Order VI Rule 2 of the Code
of Civil Procedure is categorical about it. It clearly mandates that
pleadings to state material facts and not evidence. In Kali
Prasad Aggarwal vs. Bharat Coking Coal Ltd., AIR 1989 SC
1530, Apex Court has ruled that when evidence adduced by both
the parties has been considered, it cannot be now said that the
evidence should not be looked into.
33. After having been meticulously taken through the pleadings
and evidence of this case, by learned senior counsels for the
parties, it can be unhesitatingly said that the impugned judgment
is in consonance with the pleadings and the evidence led by the
parties. It would be indeed preposterous to say that entirely a
new case has been made out in the impugned judgment or that it
is not based on evidence. Rather, we find that the learned Single
Judge has taken the pains to not only reproduce the relevant part
R.F.A. (OS) No. 7/2009 & 23/2009 Page 19
of the medical record but has also reproduced the crucial portion
of the evidence of pertinent witnesses. Indeed, the impugned
judgment is well reasoned and it not only correctly states the
facts but also effectively deals with the evidence in its proper
perspective and aptly applies the law to return a finding of
negligence against the Defendant - Hospital. In this view of the
matter, reliance placed upon decisions reported in AIR 1953
Supreme Court 235; AIR 1969 SC 1291; AIR 1981 SC 1726 and
AIR 2003 SC 4319 is clearly misplaced.
34. As a sequel to the above narration, findings of the learned
Single Judge on Issue no.1 & 4 are hereby affirmed and as a
necessary consequence thereof, the appeal of the Defendant -
Hospital (R.F.A. (OS) No. 23/2009) is dismissed with costs. During
pendency of this appeal, the decretal amount was deposited by
the Defendant - Hospital and vide order of May 29, 2009, by way
of interim measure, Registrar General of this Court was directed
to release 50% of the deposited decretal amount to the Shri
Ashish Kumar Majumdar, Respondent herein. The remaining
decretal amount so deposited was to be invested by the Registrar
General in Fixed Deposits (with automatic renewals). Now, with
dismissal of this appeal, Registrar General of this Court is
directed to release the remaining 50% of the decretal amount
deposited with interest accrued thereon, to Respondent - Shri
Ashish Kumar Majumdar forthwith.
R.F.A. (OS) No. 7/2009 & 23/2009 Page 20
35. Now we shall deal with the appeal of the Plaintiff/Appellant
(R.F.A. (OS) No. 7/2009) for enhancement of the
compensation/damages of Rupees Seven Lacs awarded to him.
Enhancement is sought on the ground that the impugned
judgment nowhere compensates the Plaintiff/Appellant for the
loss suffered, the expenses already incurred and still being
incurred by the Appellant on account of medical treatment, cost
on medicine, full time attendant and on account of physical pain,
trauma suffered by him. Award of interest from the date of the
suit is claimed as it is said to be compensation for late payment
of damages by the erring party.
36. While deciding issue no.2, regarding quantum of damages,
learned Single Judge has noted that the Plaintiff / Appellant was
employed with Punjab National Bank at the time of this incident
and he continues to remain in employment. The finding returned
on this issue is that there is lack of evidence regarding loss of
promotion and of Plaintiff/Appellant being not reimbursed either
the medical bills or the recurring medical expenses.
Plaintiff/Appellant has been found entitled to both pecuniary and
non-pecuniary damages like pain and suffering, mental and
physical shock, loss of amenities, hardship, mental stress, future
prospects, etc. and while relying upon the two decisions of the
Apex Court in R.D. Hattangadi versus Pest Control (India)
Pvt. Ltd., (1995) 1 SCC 551 and Lata Wadhwa versus State
of Bihar, (2001) 8 SCC 197, learned Single Judge has awarded
lump sum damages of Rupees Seven Lacs on both the counts i.e.
R.F.A. (OS) No. 7/2009 & 23/2009 Page 21
pecuniary or non-pecuniary, and pendentelite interest has not
been granted to the Plaintiff/Appellant because he continues to
remain in employment.
37. It is a matter of record that the Plaintiff/Appellant has
restricted his claim for damages to Rs.25 lacs in the plaint.
However, the break-up of damages of Rs.58 lacs odd, has been
spelt out, which is as under:-
Details Amount (Rs.)
A. The expenses incurred by the Plaintiff Rs.35,000/-
while in Defendant's hospital i.e. the
cost of Alpha bed, 'taylor's Bruce, 20
unit blood, medicines and expenses on
private nurse (para 19 above)
B. The loss of past and future earning and Rs.35,40,000/-
earning capacity as stated above, in
para 27
C. Expenses on attendant as stated in Rs.4,80,000/-
para 28 above
D. The expenses on treatment as stated in Rs.4,80,000/-
para 29 above
E. No pecuniary loss as stated in para 30 Rs.3,42,000/-
above
F. Loss of pension Rs.9,42,000/-
---------------------
Total Rs.58,19,000/-
=========
38. The learned Single Judge has quantified the damages at
Rupees Seven Lacs (7 Lacs) as the quantum of compensation in
para 34 of the Impugned Judgment, taking into consideration the
R.F.A. (OS) No. 7/2009 & 23/2009 Page 22
pecuniary and non pecuniary damages. The learned Single Judge
has however not expanded on how he has calculated the said
lumpsum amount of Rs 7 Lacs. The Plaintiff was 30 years of age
when he met with the unfortunate accident and had 27 years of
service remaining with him and was to retire in year 2015. The
Plaintiff is still said to be in the course of the employment but has
become disentitled to the benefits of service that would have
accrued to him if he had not become paraplegic after the
accident. Though no cogent evidence is forth coming, it seems
logical to us that the loss of future prospects in such a case of
hundred percent disability should be quantified at Rs.4,00,000/-
looking at the comparatively young age at which the Plaintiff met
with the accident. The compensation for keeping an attendant
can be awarded at Rs.4,00,000/- and other non-pecuniary losses
including pain and sufferance, loss of limb etc at Rs.3,00,000/-.
Total compensation is quantified at Rs.11,00,000/-. We are
further of the view that it would not be appropriate to award
interest from the date of the accident, that is, 31.10.1988,
equally there is no justification mentioned by the learned Single
Judge for granting interest from the date of the judgment. We
grant interest from the date of the filing of the suit, that is,
29.10.1991 at 12 percent per annum.
39. In the light of the above observations, the appeal of
Plaintiff/Appellant (R.F.A. (OS) No. 7/2009) is allowed in aforesaid
R.F.A. (OS) No. 7/2009 & 23/2009 Page 23
terms. In view of the nature of the litigation, the costs of this
appeal are made easy.
40. Both these appeals as well as pending application are
accordingly disposed of.
Sunil Gaur, J.
Vikramajit Sen, J.
December 23, 2009
pkb
R.F.A. (OS) No. 7/2009 & 23/2009 Page 24
