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High Court of Delhi
S. RAVINDRA BHAT & SUDERSHAN KUMAR MISRA, JJ.
India Tourism Development Corporation Limited
Versus
Susan Leigh Beer
RFA (OS) 75 of 2011, C.M. APPL. 15966 of 2011
Decided On: 30-05-2014
Civil Procedure Code, 1908 - Order 33 Rule 6, 9, 10, 11, 11-A - Compensation - Forma pauper - Indigent - Application to sue in forma pauper is was admitted as a suit in forma pauperis - ITDC had repeatedly sought adjournments - Time was granted and ultimately Court refused further extension of time, declining a request for adjournment - Even after a suit is admitted in forma pauperis, the ITDC continues to have a right under Order XXXIII, Rule 9 to show that the plaintiff is not indigent - There is no infirmity in the admission of the suit in forma pauperis.
Delhi High Court (Original Side) Rules, 1967 - Chapter IV - Power of attorney - Procedural irregularities - Maintainability of suit - Defective power of attorney - Power of attorney filed is not notarized by anyone and does not bear the endorsement of the Court official to whom it was submitted - Single Judge held that procedural irregularities do not go to the root of the matter cannot be a reason to deny substantive rights of parties - ITDC has not challenged these findings of the Single Judge - ITDC merely reiterated the averment in the plaint that suit was filed without authority - Since the findings of the Single Judge are unchallenged in the appeal, these findings continue to stand - Court finds that both the objections raised by ITDC on this point are procedural objections that do not go to the root of the matter in the plaint - Finding of the Single Judge, as to maintainability on the ground of power of authorization is sound and does not call for interference.
Evidence Act, 1872 - Section 45, 91, 92, 99, 101 - Appeal - Contradiction In record - Scope of - Whether the plaintiff dived or jumped cannot be gone into in this appeal - Since it was not pleaded in the written statement - Whether the oral evidence contradicts hospital records, regarding plaintiff having allegedly "dived", - It is violating Section 92 of the Evidence Act consequently need not be answered - It is found that hospital records, not being documents that are dispositive of any rights, do not fall within Section 92 of the Evidence Act.
Evidence Act, 1872 - Section 45, 91, 92, 99, 101 - Civil Procedure Code, 1908 - Order 8 Rule 2 - Order 41 Rule 22 - Compensation - Res ipsa loquitor - Proof - Injury - Applicability of res ipsa loquitor is a fact-based, contextual determination - Since the rule is one of evidence, and not a dogma which relieves the plaintiff from the burden of proving his or her claim, the principle that emerges is that res ipsa loquitor can be applied - Once it is held that the plaintiff established the injury - Onus would shift on the defendant/ITDC to explain the circumstances and whether it took the requisite care to avoid a foreseeable event.
Evidence Act, 1872 - Section 45, 91, 92, 99, 101 - Civil Procedure Code, 1908 - Order 8 Rule 2 - Order 41 Rule 22 - Accident - Compensation - Injury - Negligence - Injury suffered by plaintiff - Investigation report prepared on the date of discharge - Admission and discharge report was also signed by Doctor - Injury suffered by Susan was a fracture of the cervical 6th and 7th bones - a flexion injury with some degree of compression, resulting in quadriplegia - Injury was caused when victim jumped into the swimming pool, with her feet first - On making contact with the floor of the pool, her feet slipped forwards, causing her to fall backwards and hit her head to the side of the pool - Plaintiff established the facts and circumstances relating to the manner in which the injury was sustained - ITDC attempted both courses of action - As incident in fact occurred because plaintiff dived, and did not jump in to the pool - By attempting to adduce proof to show that the floor of the pool was not slippery and did not have algae - Efforts was made to establish that the injuries sustained by victim was a vertical impact on the head due to a headlong fall, are speculative afterthoughts - Held, victim has established the nature and the manner in which the injury was sustained, thus creating a presumption of negligence on the part of the ITDC.
S. Ravindra Bhat, J.
1. The unsuccessful defendant (i.e. the appellant India Tourism Development Corporation, hereafter called “ITDC”) challenges the judgment and decree of the Learned Single Judge of this court, who had held it liable to the extent of Rs.1,82,00,000/- (Rupees one crore eighty two lakhs) with simple interest thereon @ 6% per annum w.e.f 22.01.1982 till the date of the decree and future simple interest on that amount @ 10% per annum till its realization.
2. The brief facts are that the plaintiff (hereafter “Susan” or “the plaintiff” or “the respondent”) claimed a decree for Rs.2,00,00,000/- (Rupees two crores) as damages and interest @ 18% p.a. on the said amount from the date of presentation of the plaint till actual payment. The claim was on the basis of a swimming pool injury suffered by the plaintiff on 05.05.1978 at (the erstwhile) Akbar Hotel (“the hotel”), managed and maintained by the ITDC. Susan was staying in the hotel with her parents and brother at the time she suffered the injury, which resulted in her becoming a quadriplegic. Susan alleged that the injury was due to the negligence of the ITDC in the maintenance of the swimming pool. ITDC did not deny that the plaintiff was injured on 05.05.1978 in the swimming pool; it alleged, however that the injury was on account of the plaintiff's negligence for which it could not be held liable.
The pleadings: Suit averments
3. The suit alleged that in May, 1978, Susan, whilst on vacation in India with her parents stayed in the hotel, which was managed by ITDC. On 05.05.1978, during her stay, she went to the swimming pool at about 5:15 PM for a swim. Susan was an experienced swimmer, a Queensland (Australia) under-age champion and a member of the Queensland Women's Water Polo Team for several years. She was, in the beginning of 1978, invited to join the Australian Women's Water Polo Team and was expected to travel to Germany with the Australian team in August, 1979. On the fateful day, i.e., on 05.05.1978, at about 5:15 PM, she jumped from the shallow end, into the swimming pool opposite the diving board. Susan relied on an implied representation by the swimming pool owner that the pool floor would not be slippery and would be safe for users to stand on without slipping. The plaint alleged negligence on the part of ITDC in covering the pool floor with glazed and consequently slippery tiles, as well as in not properly cleaning and maintaining the pool floor leading to growth and accumulation of slime on the tiles. Resultantly, when Susan jumped into the water and her feet touched the pool floor, she slipped, resulting in loss of control. She fell backwards and her head hit against the wall of the pool. This fall led to Susan suffering serious head and back injuries and being unable to swim out of the pool. Her father and brother sensing that she was injured and upon noticing blood in the water, immediately swam to Susan's assistance and lifted her out of the pool carefully. Subsequently, she was removed by ambulance to the Holy Family Hospital, Okhla, New Delhi where she was treated by Dr Arjun Sehgal and Professor Ramamurthi, who had come from Madras.
4. According to the plaint, Dr Sehgal diagnosed that Susan had suffered a head injury with fracture dislocation of the cervical dorsal column causing paralysis of the four limbs and loss of sphincter control. Dr Sehgal later advised that Susan should be transported to her home in Brisbane, Australia. After a prolonged hospitalization in Delhi, accompanied by a neurosurgeon and another doctor, she was flown to Australia. From 16.06.1978 to 27.10.1978 she remained in the Spinal Unit of Princess Alexandra Hospital, Brisbane and from 13.11.1978 to 18.11.1978 in the Spinal Unit of Royal North Shore Hospital, Sydney, Australia. It is further alleged that despite sustained medical treatment, Susan was unable to recover from the spinal injuries which are of a permanent character and have physically incapacita
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