Delhi District Court
Ms. Annu Jain vs Mount Abu Public School on 18 August, 2011
IN THE COURT OF MS SWATI KATIYAR CIVIL JUDGE III TIS HAZARI COURTS
DELHI
SUIT NO. 39/07
DATE OF INSTITUTION : 30.08.2003
DATE ON WHICH RESERVED : 21.07.2011
DATE OF DISPOSAL : 18.08.2011
MS. ANNU JAIN
W/O SH. SANJAY JAIN
R/O D-7/137, SECTOR-6
ROHINI, DELHI-85 ...... PLAINTIFF
VS
MOUNT ABU PUBLIC SCHOOL
THORUGH ITS PRINCIPAL
MS. JYOTI ARORA
SECTOR-5, POCKET B-8
ROHINI, DELHI-110085
..... DEFENDANT
-:1:-
SUIT FOR RECOVERY ON ACCOUNT OF DEFAMATION,
MENTAL TORTURE ETC.
JUDGMENT
1. The present suit has been filed by the plaintiff for recovery of damages on account of defamation, mental torture etc. against the defendant.
2. Briefly stated the facts of the case as stated by the plaintiff are that the plaintiff was working as a sales executive/receptionist with M/s Nylex Agency, Anupam Bhawan, 101, Azad Pur Commercial complex, Delhi. Plaintiff submits that she is highly educated and had done post graduate from Delhi University. It is further submitted that the plaintiff is a social worker and at the time of filing the suit was planning to start business in the Country as well as abroad. It is submitted that the plaintiff's husband is working in a reputed firm and her sons are studying in a reputed school. It is averred that son of the plaintiff namely Master Naman Jain was admitted in the defendant school in session 2001-2002 in LKG and plaintiff had deposited a sum of Rs. 4000/- being admission fee vide receipt no. 4467 dt. 08.06.2011 with the defendant school.
3. It is further submitted that Master Naman was promoted to UKG in session 2002-2003 and in April, 2003 Master Naman was promoted to Class I. It is submitted that defendant suddenly, abruptly and arbitrarily refused to admit the son of the plaintiff in Class I and a transfer certificate dt. 21.04.2003 was handed over to the plaintiff and the plaintiff was asked to take away her son to any other school. It is submitted that before issuance of transfer certificate, no opportunity of being heard was given to the plaintiff. Plaintiff avers that defendant also demanded a hefty sum of Rs. 25,000/- from the plaintiff as a -:2:- condition for continuing Master Naman's education in the defendant school.
4. Plaintiff further submits that she expressed her inability and helplessness in meeting the demand of the defendant but the defendant was adamant and declined the request of the plaintiff. It is submitted that due to such conduct of the defendant, plaintiff suffered severe mental agony, financial loss, loss in reputation amongst her friends, colleagues, relatives and in the locality. It is submitted that plaintiff had to spend money for getting her son admitted in some other school in Class I. The plaintiff had to approach the higher authorities as well for getting the security refund from the defendant. It is submitted that a letter dt. 26.05.2003 was written to the defendant but no response was given to the same. The matter was also reported to District Education Officer, Sector -9, Rohini, Delhi on 29.05.2003 and a copy of the same was sent to Dy. Director, Education, Pitam Pura, Delhi on 29.05.2003 along with an additional copy to Education Director, Old Secretarial, NCT on 30.05.2003 and to Hon'ble Education Minister.
5. Plaintiff submits that the acts of the defendant are illegal and unwarranted and against the norms and regulations laid down by the Government of India and also against the principles of natural justice. It is submitted that due to such conduct of the defendant, plaintiff could not attend her social functions and service activities properly and suffered loss of reputation as well as loss of salary along with physical and mental torture. It is further submitted that plaintiff has suffered mental distress, shock and loss of hospitality of friends and social discredit has been caused due to acts of the defendant. It is submitted that the plaintiff is entitled to damages for nervous shock and anxiety and also peculiar and non-peculiar losses on account of unlawful act of the defendant. It is further submitted that husband of the plaintiff also suffered mental shock, pain, agony and remained unconscious for 2-3 days. Plaintiff submits that her son also suffered nervous shock and nervousness on -:3:- account of illegal acts of the defendant and suffered mental depression due to which Master Naman Jain could not do well in his studies on account of loss of company of his friends in the class who continued to study in the defendant school.
6. Plaintiff further submits that she was planning to travel to North-East India in the month of April-May, 2003 for promotion of business of M/s Nylex Agency and a stock of goods of M/s Nylex Agency was lying unsold and getting dust which was to be personally marketed by the plaintiff and manager of the firm in the North-East India. For this purpose, the plaintiff was to meet Directors of so many companies and they gladly agreed to assist the plaintiff in the marketing. However, the immobility of the plaintiff caused due to the acts of the defendant totally failed her plans which not only put the plaintiff under great financial loss but also gave her great mental shock and agony.
7. Plaintiff further submits that on account of abovesaid illegal acts of the defendant, plaintiff was not in a position to complete her assignments as well as to attend her business activities. The plaintiff was also not in a position to undertake journey from Delhi to North-East India and was confined to bed. It is further submitted that plaintiff suffered huge financial loss besides set back to her reputation in the society. Plaintiff submits that she had spent huge amounts to provide treatment to her husband, son and herself. It is further submitted that defendant is solely responsible for all such losses, financial and mental suffered by the plaintiff and her family. The plaintiff has assessed consolidated damages to the tune of Rs. 50,000/- which as per the plaintiff is just and reasonable under the law. It is further submitted that a notice dt. 06.08.2003 was got served upon the defendant for payment of damages within 15 days of the receipt of notice. However, the defendant failed to comply with the same. Thus, feeling aggrieved the present suit has been filed for recovery -:4:- of damages of Rs. 1000/- on account of defamation of the plaintiff by the defendant.
8. Per contra, defendant submits that the plaintiff has filed the present suit without any cause of action in as much as in the entire pleading the plaintiff is alleging damages to the tune of Rs. 50,000/- but in the prayer clause the plaintiff has restricted her claim to Rs. 1000/-. On merits, it is admitted that the plaintiff deposited a sum of Rs. 4000/- being admission fee vide receipt No. 4467 dt. 08.06.2011 with the defendant school and the son of the plaintiff was promoted to UKG in the session 2002-2003. However, it is denied that in April, 2003 the son of the plaintiff was promoted to class I. It is submitted that the plaintiff had herself approached the defendant and demanded the Transfer Certificate of her son to shift Master Naman to some other school. It is further submitted that defendant has never demanded any sum of Rs. 25,000/- from the plaintiff on any event.
9. Defendant further submits that the caution money of Rs. 500/- was refunded to the plaintiff vide cheque no. 419803 dt. 01.06.2003 in favour of Sh. Sanjiv Jain i.e husband of the plaintiff. It is further submitted that plaintiff had filed a false and fictitious complaint against the defendant before the concerned department and sufficient inquiry has been conducted by the concerned department upon the false complaint. It is submitted that the present suit has been filed by the plaintiff merely to extract money from the defendant. Defendant denies that due to any act of the defendant, the plaintiff has suffered mental agony, pain or depression. Defendant further states that plaintiff has failed to disclose the name of the diseases for which the plaintiff and her family members had taken treatment. It is denied that defendant is liable to pay any damages to the plaintiff on account of mental shock, tension and agony. On these counts, it is submitted that the suit of the plaintiff merits -:5:- outright dismissal.
10. Replication was filed denying the contents of the written statement and reiterating the plaint. On 25.04.2011 the following issue was framed:-
Whether the plaintiff is entitled for the recovery of damages on account of defamation, as prayed for?OPP
11. In evidence, plaintiff examined herself as PW-1 and tendered documents Ex. PW-1/1 to Ex. PW-1/9. Ex. PW-1/1 is the receipt bearing No. 4467 dt. 08.06.2001, Ex. PW-1/2 is the letter dt. 21.04.2003 alleged to be issued by the defendant school certifying that Master Naman Jain has been promoted to Class I and his date of birth is 09.01.1997 as per the school record, Ex. PW-1/3 is the letter dt. 29.05.2003 written by the plaintiff to the District Education Officer, Rohini, Mark A-1 is an undated letter written by the plaintiff to the Principal of the defendant school. Ex. PW-1/5 is the legal notice dt. 06.08.2003 along with postal proofs Ex. PW-1/6 to Ex. PW-1/ 9. There is no document tendered as Ex. PW-1/4.
12. Ms. Jyoti Arora, Principal of defendant school was examined as DW-1, however, cross examination of DW-1 was never concluded and was accordingly closed vide order dt. 22.04.2010.
13. Written arguments were filed by the plaintiff and oral arguments were advanced by Sh. Anil Sehgal, Ld counsel for defendant. After considering the submissions and perusing the record carefully, my finding on the issue framed on 25.04.2011 is as follows:-
-:6:-Issue Whether the plaintiff is entitled for the recovery of damages on account of defamation, as prayed for?OPP To determine this issue it would be pertinent to refer to the deposition of witnesses for a while.
PW-1 in her cross examination had stated that she was removed from her job in June, 2003 when she was working as Sales Executive/Receptionist. PW-1 further deposed that no Identity Card was issued to her concerning the job. PW-1 stated that Sales Executive does the job of promoting the sales and to look after the market. PW-1 stated that no visiting card was issued to her as sales executive. PW-1 deposed that M/s Nylex Agency is stockist of medicine and receptionist job is to sit in the office and entertain the visitors. PW-1 further deposed that as Sales Executive she used to visit doctors from 09.00 a.m to 01.00 p.m and thereafter she used to give report to her office. PW-1 further deposed that she used to remain in office till 06.00 p.m and about 10 persons were working in the office. PW-1 admitted that Receptionist also attends telephone calls. PW-1 deposed that she used to earn Rs. 10,000/- p.m including the commission apart from the salary. PW-1 expressed inability to produce her salary certificate and deposed that she had worked for M/s Nylex Agency for about five years.
In the further cross examination recorded on 08.01.2007, PW-1 deposed that at present she was not working any where. PW-1 further deposed that she had not been working since 2003 when her services were terminated by M/s Nylex Agency. However, PW-1 admitted that in the plaint she has written that she was working as Sales Executive with M/s Nylex Agency and the said fact was also mentioned in her affidavit.
-:7:-In the further cross examination of PW-1 recorded on 31.05.2007, PW-1 had deposed that, "I had applied for my passport before leaving my job. I am doing social work like, attending problems relating to ladies, MCD and educating poor children. I do not form any organisation and I have no office and operate my activities from my house. My husband's earning is Rs. 10,000/- p.m approximately. Walking distance between my house and Mount Abu Public School is about 15-20 minutes..... after throwing my son by the defendant school, I got my son admitted in the Abhinav Public School and the distance between the two school i.e Abhinav School and defendant school from my house is almost the same. The monthly expenses of the defendant school are already mentioned in my plaint. I do not remember exactly the expenses born by me for getting educated my son from the Abhinav Public School. The Principal of defendant school Smt. Jyoti Arora refused to permit my son to continue with his studies and the Principal demanded money from me for Rs. 25,000/-. I do not know for what purpose the money was demanded...... In my complaint to District Education Officer Ex. PW-1/3 I have not made any mention any demand of alleged Rs. 25000/-. It is correct that in the aforesaid complaint I have demanded refund of Rs. 500/- which was lying as caution money with the school.... the caution money i.e Rs. 500/- has been refunded to me after my complaint to the District Education Officer..... I suffered mental agony and nervous shock because of the unjust act of the defendant. I have also spent amount on my illness,my child also suffer mental agony due to unjust act of the defendant, my reputation suffered a set back in the society. I had to spent amount to visit the Education Minister and Director of Education. I do not have any termination letter issued by previous employer. I am not able to produce any document regarding my termination from my job. My employer had stated that since I availed of to many leaves that is why he was terminated my job. I can not tell the exact date and time for which I have suffered nervous -:8:- shock. After the incident for 2-3 three days I was not able to go out from my house and after that when I decided to fight for my right, I decided to approach the authorities. I have consulted a physician during the period in question. I am not able to recollect the name of the physician. It is right to suggest that the prescription slip of the said physician is not on record. It is correct to suggest that I have also not named the physician in the list of witnesses. I have visited Prashanti Nursing Home but I can not the specific name of the physician. My husband was also mentally disturb because of the impugned incident. There was no such diseases infected to my husband so he was not treated......the mental agony of my son was not of such a nature that he needs some treatment....."
DW-1 in her cross examination as partly recorded had stated that no litigation was pending against the school and that they have no complaint against Naman Jain or his parents from their office in the year 2001-2003 but DW-1 expressed inability to state that as to whether any complaint was there in the PTM. DW-1 denied that they had told the plaintiff that donation was required for the admission in the next session or that she had any discussion with the plaintiff.
Thus, from the perusal of the evidence it can be seen that the plaintiff is claiming damages on account of nervous shock suffered by her and her family as well as defamation which resulted in loss of reputation of the plaintiff.
It is a settled law that relief for the tort of nervous shock is provided when a person may suffer injury not by personal impact but by a shock through what he or she has seen or heard. Defamation on the other hand requires that a statement has been made which is defamatory and refers to the plaintiff. The statement has to be published to constitute defamation of the plaintiff.
-:9:-A perusal of the evidence lead by the plaintiff shows that though the plaintiff has claimed that she was confined to bed due to the alleged act of the defendant but the plaintiff has not placed on record any document to fortify her stand. Plaintiff is not able to recall the name of the Physician who administered her treatment and not even the period for which she suffered mental shock. Plaintiff has also not given any details of the Physician who had treated her during her alleged sickness. The said physician was never examined by the plaintiff in evidence as well. With regard to her husband, plaintiff submits that he was never referred to any hospital and the mental setback of the son of the plaintiff was not such that he was required to be referred for medication. Such deposition of the plaintiff is contrary to the very stand taken by her in her pleadings.
Further, in the letter Ex. PW1/3 dated 29.05.2003 written by the plaintiff to the District Education Officer there is no mention that the defendant had ever demanded a sum of Rs. 25,000/- from the plaintiff. The sum of Rs. 25,000/- was for the first time mentioned in the Legal Demand Notice Ex. PW-1/5 dt. 06.08.2003 i.e after a lapse of about two months since the representation was made to District Education Officer by the plaintiff on 29.05.2003 vide Ex. PW-1/3. In the letter Ex. PW1/3 plaintiff has stated that during the year 2002-2003 she had some complaints against the class teacher which were aggravated further because of in action of teacher in-charge and when the matter was brought to the Principal, the Principal instead of giving a patient hearing asked the plaintiff to collect transfer certificate of Master Naman. There is not even a whisper in letter Ex.PW1/3 that the defendant school had made any unlawful demand from the plaintiff. On the other hand, in the letter Mark A-1 written by the plaintiff to the defendant, plaintiff has stated that the transfer certificate which has been issued by the defendant school is not -:10:- proper and the plaintiff has requested the Principal of the defendant school to attest the Transfer Certificate issued to Master Naman so as to authenticate the same. Thus, the pleas taken by the plaintiff in her representation to the defendant school, to the District Education Officer and to the Court are contradictory in themselves.
Another argument raised by the plaintiff is that the defendant has failed to produce the application in the Court pursuant to which the Transfer Certificate was issued despite the fact that the cross examination of DW1 was deferred so that DW1 could produce application of Master Naman on next date of hearing. The argument raised by the plaintiff is not tenable since merely because the application was not furnished by DW1 is no reason to draw adverse inference against DW1. The burden of proving the case was upon the plaintiff and the lacuna, if any, in the evidence of the defendant does not discharge the onus placed upon the plaintiff.
The next argument raised by the plaintiff is that she lost her job due to the acts of the defendant since she could not perform her duties well. However, plaintiff has not filed on record any document from which it can be ascertained that the services of the plaintiff were terminated by her employer since she had failed to perform her duties well during the relevant period. Moreover no witness has been examined from M/s. Nylex Agency to establish that the alleged termination of services of the plaintiff was the result of the alleged acts of the defendant or due to inefficiency of the plaintiff to perform her services. There is no evidence of record to substantiate the plea of the plaintiff to the effect that she was to represent M/s. Nylex Agency in North East India and she was restrained from doing so due to the acts of the defendant. Plaintiff has merely raised allegations without proving the same on record through documentary evidence or otherwise.
-:11:-As per the plaint, the son of the plaintiff is still studying in a reputed school and thus, it can not be said that Master Naman Jain has suffered in his studies due to his change of school. Further, there is no reason as to why after assessing the consolidated damages at Rs. 50,000/-, the plaintiff has restricted her claim only to Rs. 1000/-. This in itself may point to the fact that plaintiff was never interested in recovering damages for the alleged medical expenses borne by her but only wanted to keep the defendant engaged in the present case. Ld counsel for plaintiff has argued that the figure of Rs. 1000/- has been wrongly reflected in the plaint due to oversight by the earlier counsel. But the fact remains that the plaint was never amended and even in the examination in chief by way of affidavit, plaintiff has mentioned at para 20 that she is entitled to a sum of Rs. 1000/- towards defamation from the defendant. Thus, the arguments raised by the counsel for plaintiff at this stage with regard to oversight of the earlier counsel are not tenable.
Moreover, the plaintiff has also failed to examine her husband as a witness in the present case qua whom the plaintiff has claimed damages as well. There is no reason as to why the husband of the plaintiff and the son of the plaintiff were not made parties to the present suit when the husband and the son are also alleged to have suffered mental setback due to the alleged acts of the defendant.
Further, in the plaint, plaintiff had submitted that the amount of Rs. 25,000/- was demanded by the defendant to promote the son of the plaintiff to I st standard. However, in the cross examination plaintiff expressed inability to state the reason for which the amount of Rs. 25,000/- was demanded by the defendant. This is another contradiction in the pleadings and the deposition of the plaintiff.
-:12:-Further plaintiff in her cross examination has admitted that the amount of Rs. 500/- was refunded to her by the defendant as caution money but the said fact has not been mentioned by the plaintiff in her plaint.
Furthermore, plaintiff has from the very beginning taken the stand that she was employed with M/s. Nylex Agency but has not placed on record any document which can fortify the stand of the plaintiff to the effect that she was indeed employed by M/s Nylex Agency. As per plaintiff's own deposition, she had no identity card, no visiting card nor was any salary certificate ever issued to her by M/s. Nylex Agency. However, such stand of the plaintiff is hard to believe in view of the claim of the plaintiff that she was chosen to represent M/s. Nylex Agency in North-East India, since without an Identity Card or Visiting Card it is inexplicable as to how the plaintiff may have represented M/s Nylex Agency in North-East India.
In addition to the above discussion, it is also to be seen that plaintiff has not pleaded any fact or incident due to which the defendant would have adopted such a prejudicial attitude towards her son exclusively. It is not the case of the plaintiff that all the other students had paid the amount of Rs. 25,000/- to the defendant school due to which they were promoted and the son of the plaintiff was left out. There was no previous complaint of such prejudicial act by the defendant against the son of the plaintiff. Thus, there is no reason as to why the defendant should have adopted such a discriminatory policy only against the son of the plaintiff and none else.
Further, no document has been filed on record by the plaintiff to prove the financial loss suffered by her as alleged on account of the acts of the defendant.
-:13:-Thus, the essential ingredients of nervous shock as well as defamation are missing in the present case. The plaintiff has failed to discharge the onus placed upon her. The issue is accordingly decided against the plaintiff. The suit is dismissed. No orders as to costs. Decree sheet be prepared. File be consigned to Record Room.
Announced in the Open Court today i.e. 18.08.2011 (Swati Katiyar) CJ (West)III/Delhi 18.08.2011 -:14:- Suit No. 17.08.2011 Fresh suit received by way of assignment. It be checked and registered.
Present: Proxy counsel for the plaintiff.
A perusal of the file shows that plaintiff has not filed Court fees. Deficit court fees be filed within two week and thereafter summons of the suit be issued to the defendant on filing of PF & RC returnable on 30.09.2011.
(Swati Katiyar) CJ(WEst)III/Delhi 17.08.2011 -:15:-