Mohd.Nabi vs State Of Delhi & Ors
2011 Latest Caselaw 3880 Del

$~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

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

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

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..