Delhi High Court
Mahesh Gupta vs Bank Of Baroda & Ors. on 8 April, 2019
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 08.04.2019
+ W.P.(C) 499/2014
MAHESH GUPTA ..... Petitioner
versus
BANK OF BARODA & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioners: Mr. Santosh Krishnan
For the Respondents: Mr Arun Aggarwal for Bank of
Baroda
Mr Naushad Ahmed Khan,
ASC (Civil), GNCTD for
respondent/police along with
Mr Zahid Hanief
Ms Eshita Baruah, Mr
GaurangKanth for R-3/SDMC
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. The petitioner has filed the present petition, inter alia, praying as under:
―I. To direct the respondent no- 1 to 3 to pay pecuniary damages (Special Damages) for expenses relating to treatment, hospitalization, medical expense, medicine and doctors, transportation, nursing, foods and misc. expenses. The expenses spent for from the date of accident till August 2013 of Rs. 4,11,844 (Rupees Four Lacs Eleven Thousand Eight Hundred Forty Four only) including proportionate medical insurance premium of Rs. 43,298 (Rupees Forty Three Thousand Two W.P. (C) 499 of 2014 Page 1 of 26 Hundred and Ninety Eight only) paid by petitioner's son. Out of the above, petitioner has received Rs. 1,70,777 (Rupees One Lac Seventy Thousand Seven Hundred Seventy Seven Only). Accordingly, the total comes to Rs. 241,066 (Rupees Two Lacs Forty One Thousand and Sixty Six Only). The said expenses are continuing as the petitioner is still not normal and by applying the inflation adding 50% of the amount as escalation and by applying the multiplier of 5 the said amount comes to Rs. 13,50,000. Accordingly, the total amount comes to Rs. 15,91,066 (Rupees Fifteen Lacs Ninety One Thousand and Sixty Six Only) details of which has been mentioned in para no-21-(a) (I) of the petition.
II. To direct the respondent nos 1 to 3 to pay for transportation expenses incurred by the petitioner's family for visiting the hospitals and various doctors to the tune of Rs. 6,00,000 (Rupees Six Lacs Only) details of which has been mentioned in para no-21-(a) (II) of the petition.
III. To direct the respondent no- 1 to 3 to pay for special diet to lead his normal life of Rs. 7,20,000 (Rupees Seven Lacs Twenty Thousand Only) details of which has been mentioned in para no-21-(a) (III) of the petition.
IV. To direct the respondent no- 1 to 3 to pay for loss of earning of Rs. 23,50,000 (Rupees Twenty Three Lacs Fifty Thousand Only) which petitioner could have earned details of which are mentioned in para no-21-(a) (IV) of the petition.
V. To direct the respondent no- 1 to 3 to pay Rs. 9,60,000 (Rupees Nine Lacs Sixty Thousand Only) for the expenses of personal attendant from the date of accident which has been calculated on the basis of minimum wages of unskilled labour by applying the inflation adding 50% of the amount as escalation and by applying W.P. (C) 499 of 2014 Page 2 of 26 multiplier of 5, the details of which has been given in para no-21 (a) (V) of the petition.
VI. To direct the respondent no- 1 to 3 to pay non pecuniary damages (General Damages) amounting to Rs.
20,00,000/- (Rupees Twenty Lacs Only). Rs. 10,00,000/- for the exemplary compensation for suffering pains, injuries and trauma as consequences of the injuries, Rs. 5,00,000 (Rupees Five Lacs Only) for loss of amenities and Rs. 5,00,000 (Rs. Five Lacs Only) for loss of expectation of life for rest of his life, the details of which has been mentioned in para no-21 (a) (VI) of the petition.‖
2. The petitioner submits that respondent nos. 1 to 3 are vicariously and strictly liable to pay compensation to the petitioner, who was injured due to respondent no. 1's advertisement board falling on his head. The petitioner claims that respondent no. 1 (Bank of Baroda - hereafter ‗BoB')was negligent inasmuch as it had not taken due care to ensure that the Board in properly affixing the same.
3. The respondents submit that the instance of the signboard falling can be, at most, be termed as an act of god since Delhi was experiencing unprecedented winds at the material time.
Factual Background
4. The petitioner submits that on 22.05.2011, at about 4:00 pm, he was walking from his office to the shop of one M/s Singh Sahab& Sons Tailors at AB-6, Safdarjung Enclave, New Delhi - 110029. When the petitioner was crossing the branch of BoB, AB-7, Safdarjung Enclave, New Delhi - 110029, all of a sudden,BoB's W.P. (C) 499 of 2014 Page 3 of 26 signboard - which was 36 feet x 4 feet x 4.6 feet - bearing the inscription ―Bank of Baroda‖ fell on his head.
5. Thereafter, certain by-standers removed the signboard and took the petitioner to Jai Prakash Narayanan Apex Trauma Center, All India Institute of Medical Sciences (AIIMS) Hospital.
6. Upon investigation, the doctors at the said hospital diagnosed the petitioner to be suffering from ―RT Frontal Contusion with Acute SDH and Tracheal Stenosis‖, loss of consciousness, episode of seizure/fit attack and vomiting. The petitioner underwent a 10-hour long surgery at the said hospital. He was discharged from the hospital on 28.06.2011. The petitioner submits that at the time of discharge, the doctors had stated that the petitioner has suffered mental disability and damage to his vocal chords. Thereafter, the petitioner was admitted to various hospitals between August, 2011 and June, 2013 for various problems, which the petitioner states are a direct consequence of the incident.
7. On 27.05.2011, the S.H.O. of the concerned police station (PS Safdarjung Enclave), who is arrayed as respondent no. 5 in the current petition, registered an FIR (FIR No. 144/2011) under Section 337 of the Indian Penal Code, 1860 (IPC) against unknown persons.This was later modified to be a FIR under Section 338 of the IPC. The petitioner contends that the said FIR has not been lodged properly, and the investigation in the case is not being effectively conducted. Since the signboard which fell on the petitioner advertised respondent no. 1, W.P. (C) 499 of 2014 Page 4 of 26 respondent no. 5 ought not to have registered the FIR against unknown persons.
8. On 21.11.2012, in furtherance of an application under the Right to Information Act, 2005, the petitioner's son was informed by the South Delhi Municipal Corporation that BoBhad not taken prior permission of the municipal corporation before installing a hoarding of such a large size.
9. BoBhas contested the aforesaid petition, principally, on the ground that it involves disputed questions of fact and, therefore, the petitioner ought to be relegated to file a suit. It is also contended that the board in question was not an advertisement board but a sign board as it was fixed where the branch office of BoB is located. The learned counsel for the respondents contends that in the circumstances, permission under Section 143 of the Delhi Municipal Corporation Act, 1957 was not required.
10. BoB also claims that the board had fallen down due to high velocity winds and the respondents could not be held liable for the same. According to BoB, the incident should be considered as an Act of God.
11. Mr Arun Aggarwal, learned counsel appearing forBoB had also contended that there was no material on record to show the petitioner's medical condition prior to the incident. He contended that the medical bills as sought by for the petitioner may not be attributable W.P. (C) 499 of 2014 Page 5 of 26 to the injury suffered due to falling of the signboard but due to a preexisting medical condition.
Reasons and Conclusion
12. The essential facts in the present case cannot be disputed. There can be no dispute that the petitioner had suffered an injury on account of the BoB's sign board falling on his head on 22.05.2011. As noticed above, he was immediately rushed to Jai Prakash Apex Trauma Centre, AIIMS and an FIR recording the incident was also lodged. It is also an admitted case that the signboard of BoB had fallen down on 22.05.2011 at about 04:00 p.m. The dimensions of the signboard are also not disputed. The petitioner had affirmed that the signboard was of a length of 36 feet, breadth 4 feet and width 4.6 feet. This has not been controverted by BoB.
13. As stated above, the petitioner was rushed to AIIMS Hospital. The petitioner has produced the admission report card which,inter alia,states as under:-
―Comments; AHO Truma [sic trauma] due to fall of heavy object over head.‖ ―Nature of injury: pending investigation (dangerous).‖
14. The petitioner remained admitted at AIIMS for a period of thirty eight days, during which period, the petitioner was operated upon and was also kept on a ventilator. The discharge summary indicates that the petitioner had suffered frontal contusion, acute subdural hematoma, and tracheal stenosis.
W.P. (C) 499 of 2014 Page 6 of 2615. In view of the aforesaid circumstances, it can hardly be disputed that the petitioner had suffered severe injuries on account of the BoB's sign board falling on his head.
16. Admittedly, BoB had taken no permission from the concerned municipal corporation for fixing the said board. It is, however, contended on behalf of BoB that no such permission was required, since the board in question was a signboard and not an advertisement board. Considering the dimensions of the said board, it is difficult to accept that the board in question was merely a signboard of BoB's branch and not an advertisement display board. The board was four feet thick and was lit. The nature of the Board was in the nature of display of advertisement and therefore, permission of the Commissioner of the concerned Municipal Corporation was required in terms of Section 143 of the Delhi Municipal Corporation Act, 1957.
17. However, this Court is of the view that notwithstanding the aforesaid controversy the petitioner would, nonetheless, be entitled to compensation as there is no real dispute that the signboard, in fact, had fallen on the petitioner.
18. The contention that BoB cannot be held responsible for falling of the signboard in question since the same was caused by a storm and high velocity winds, is also unpersuasive.There is no material on record to indicate that the weather on the day in question (that is, 22.05.2011) was unprecedented. Storms and high velocity winds are a common weather phenomenon that occur regularly. Thus, unless it is W.P. (C) 499 of 2014 Page 7 of 26 shown that the storm on the particular day was of an unprecedented fury, BoB cannot be absolved of the responsibility of the incident in question.
19. In Harinder Kaur v. Additional District and Session Judge and Others: W.P.(C) 14129/2009, decided on 04.05.2012, a Coordinate Bench of this Court, while examining a similar case, had observed that squalls, dust, storms and rains accompanied with strong winds are experienced by the city of Delhi in the month of May practically every year, and judicial notice of the same can be taken by this Court.
20. BoB has not produced any material which would even remotely suggest that the high velocity winds, if any, experienced on 22.05.2011 were such that had not been experienced earlier and were beyond reasonable anticipation.
21. Any person fixing a signboard or an advertisement board of such large dimensions, as in the present case, ought to be fully conscious that such signboards require to withstand high velocity winds, squalls and dust, storms which are a regular feature. It was the duty of BoB to take proper care to ensure that its advertisement/sign board was properly fixed so that it does not jeopardize the safety of any person.
22. This is, plainly, a case of res ipsa loquitur. The fact that the signboard had fallen down clearly establishes that the respondent had not taken sufficient steps to ensure that the same is properly fixed.
W.P. (C) 499 of 2014 Page 8 of 26This Court is also of the view that doctrine of strict liability is applicable in the facts of the present case.
23. In the case of Municipal Corporation of Delhi v. Subhagwanti and Ors. : AIR1966 SC 1750, the Supreme Court held as under:
―4. ....In our opinion, the doctrine of res ipsa loquitur applies in the circumstances of the present case. It has been found that the Clock Tower was exclusively under the ownership and control of the appellant or its servants. It has also been found by the High Court that the Clock Tower was 80 years old and the normal life of the structure of the top storey of the building, having regard to the kind of mortar used, could be only 40 or 45 years. There is also evidence of the Chief Engineer that the collapse was due to thrust of the arches on the top portion and the mortar was deteriorated to such an extent that it was reduced to powder without any cementing properties. It is also not the case of the appellant that there was any earthquake or storm or any other natural event which was unforeseen and which could have been the cause of the fall of the Clock Tower. In these circumstances, the mere fact that there was fall of the Clock Tower tells its own story in raising an inference of negligence so as to establish a prima facie case against the appellant.
5. We shall proceed to consider the main question involved in this case namely, whether the appellant, as owner of the Clock Tower abutting on the highway, is bound to maintain it in proper state of repairs so as not to cause any injury to any member of the public using the highway and whether the appellant is liable whether the defect is patent or latent. On behalf of the appellant Mr BishenNarain putforward the argument that there were no superficial signs on the structure W.P. (C) 499 of 2014 Page 9 of 26 which might have given a warning to the appellant that the Clock Tower was likely to fall. It is contended that since the defects which led to the collapse of the Clock Tower were latent the appellant could not be held guilty of negligence. It is admitted, in this case, that the Clock Tower was built about 80 years ago and the evidence of the Chief Engineer is that the safe time-limit of existence of the building which collapsed was 40 or 45 years. In view of the fact that the building had passed its normal age at which the mortar could be expected to deteriorate it was the duty of the appellant to carry out careful and periodical inspection for the purpose of determining whether, in fact, deterioration had taken placed whether any precautions were necessary to strengthen the building.
The finding of the High Court is that there is no evidence worth the name to show that any such inspections were carried out on behalf of the appellant and, in fact, if any inspections were carried out, they were of casual and perfunctory nature. The legal position is that there is a special obligation on the owner of adjoining premises for the safety of the structures which he keeps besides the highway. If these structures fall into disrepair so as to be of potential danger to the passers-by or to be a nuisance, the owner is liable to anyone using the highway who is injured by reason of the disrepair. In such a case it is no defence for the owner to prove that he neither knew nor ought to have known of the danger. In other words, the owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect. In Wringe v. Cohen [(1940) 1 KB 229] the plaintiff was the owner of a lock-up shop in Proctor Place, Sheffield, and the defendant Cohen was the owner of the adjoining house. The defendant had let his premises to a tenant who had occupied them for about two years. It appears that the gable end of the defendant's house collapsed owing to a storm, and fell W.P. (C) 499 of 2014 Page 10 of 26 through the roof of the plaintiff's shop. There was evidence that the wall at the gable end of the defendant's house had, owing to want of repair, become a nuisance i.e. a danger to passers-by and adjoining owners. It was held by the Court of appeals that the defendant was liable for negligence and that if owing to want of repairs premises on a highway become dangerous and, therefore, a nuisance and a passer-by or an adjoining owner suffers damage by the collapse the occupier or the owner if he has undertaken the duty of repair, is answerable whether he knew or ought to have known of the danger or not. At p. 233 of the report Atkinson, J. states:
―By common law it is an indictable offence for an occupier of premises on a highway to permit them to get into a dangerous condition owing to non-repair. It was not and is not necessary in an indictment to aver knowledge or means of knowledge: see Reg. v. Watson, ((1703) 2 Ld. Raym. 856). In Reg. v. Bradford Navigation Co., ((1865) 6 B. & Section 631, 651) Lord Blackburn (then Blackburn, J.) laid it down as a general principle of law that persons who manage their property so as to be a public nuisance are indictable. In Attorney-General v. Tod Heatley, ([1897] 1 Ch. 560) it was clearly laid down that there is an absolute duty to prevent premises becoming a nuisance. ‗If I were sued for a nuisance', said Lindley L.J. in Rapier v. London Tramways Co., ((1893) 2 Chapter 588, 599), ‗and the nuisance is proved, it is no defence on my part to say and to prove that I have taken all reasonable care to prevent it'.W.P. (C) 499 of 2014 Page 11 of 26
The ratio of this decision was applied by the Court of appeals in a subsequent case in Mint v. Good [(1951) 1 KB 517] and also in Walsh v. Holst and Co.
Ltd. [(1958) 1 WLR 800] In our opinion, the same principle is applicable in Indian law. Applying theprinciple to the present case it is manifest that the appellant is guilty of negligence because of the potential danger of the Clock Tower maintained by it having not been subjected to a careful and systematic inspection which it was the duty of the appellant to carry out.‖
24. In the case of Manindra Nath Mukkerjee v.
MathuradasChatturbhuj: 1944 (80) CLJ 90, a Coordinate Bench of theHigh Court of Calcutta held as under:
―3. On the 5th July 1943, at about 7.15 P. M. a banner (produced in Court and found to measure twelve feet in length and three and half feet in width) within a wooden frame, fell from its position against the sky sign of the Rupali Cinema. A very narrow space according to the evidence for the defendant, four feet intervened between the sky sign and the edge of the roof, so that there was nothing to intercept or break the fall. The contraption fell on the plaintiff, who was passing along the pavement. Apparently the wooden frame struck him on the head, for he sustained a cut thereon, which the medical evidence has described as severe, and which bled profusely. On behalf of the defendant it was sought to be suggested that the plaintiff was struck not by the banner but by a corrugated iron sheet, described as a 'shade', one or more of which fell at the same time, the weather being stormy, from the roof on an adjoining shop. The evidence in support of this suggestion is totally insufficient, and as a defence it was indeed not seriously pressed.W.P. (C) 499 of 2014 Page 12 of 26
**** **** ****
59. A careful consideration of the cases discussed above has satisfied me that the maxim res ipsa loquitur applies to the facts relative to the occurrence in the present case. The plaintiff's version of those facts, supported as it is by the evidence of Raj Deo Ojha, Ram Laish Singh, and Savajit Singh who are independent and, in my opinion, truthful witnesses must be accepted as a correct statement of the circumstances under which the plaintiff received his injury, and the suggestion that he was struck by an article or articles described as 'shades' which fell from the roof of a neighbouring building at the same time as did the banner, must be dismissed as a theory which has no foundation and is opposed to the evidence. This conclusion casts the burden of proving exercise of due care on the defendant.
Evidence to rebut the presumption of negligence has been given on his behalf, but I am not impressed by it. It is, however, unnecessary at the moment to discuss its inherent infirmities, or to go to the length of saying, at this stage, that what was stated by the defendant's manager, BasuMullick, regarding the precautions which he took to see that the banner was properly fastened to the frame of the sky sign was materially untrue. I shall refer to this aspect of the matter later. This, in my judgment, is a case in which the indisputable facts attract the rule in (1868) 3 H. L. 330 Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220, and that being so, the defendant is called upon to answer his liability for the injury caused to the plaintiff by the falling banner not by merely showing that due care was exercised but in one of modes which alone constitute a defence to liability in cases of the Rylands v. Fletcher Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 type. One of these is the defence of act of God or vis major, and the defendant has in fact W.P. (C) 499 of 2014 Page 13 of 26 raised it by contending that the fall of the banner was caused by a storm of unusual severity. The evidence adduced in support of this contention will have to be examined for the purpose of seeing whether it proves that, such a storm took place as would amount to act of God or vis major as that concept has been understood in the Law of Torts. Therefore before approaching the evidence regarding the weather which prevailed at the time when the banner fell, it will be necessary first to consider the cases in which act of God or vis major has been discussed.‖
25. In the case of Sushila Devi and Ors. vs. MunicipalCorporation of Delhi : 1985 ACJ 255, the Division Bench of this Court held asunder:
―(1)On 18th August, 1964 between 5 and 6 in the evening two brothers -- Suresh Chander (the deceased) and Ramesh Chander -- were going on a scooter from their office to their residence. They passed through Alipur Road beyond Kashmere Gate. The deceased was driving the scooter and Ramesh was a pillien passenger. When they reached 20, Alipur Road, known as Sant Permanand Blind Relief Mission Building, opposite Rai Sahib Bhola Ram Petrol Pump, a branch of the neem tree standing there fell on the deceased. His head was crushed. He was rushed to Irwin Hospital where he died the following morning at about 11 a.m. inspite of a surgical operation. A piece of wood was found in his brain.
***** ****** *******
50. The judge imputed a want of care to the Corporation.
They should have foreseen that the accident can happen. A layman would draw such a deduction from the position and the appearance of the tree. No W.P. (C) 499 of 2014 Page 14 of 26 one will call it safe and sound. No one will count such a tree safe. The evidence of the Corporation employees throws a great suspicion on the soundness and safety of the tree. Such a tree was likely to cause damage to persons lawfully using the public road. They ought to have known that a dead tree can fall and injure and kill a man. As the duly of inspection and cutting of tree had not been performed the learned judge held the Corporation liable. We are not prepared to say that he was wrong in his assessment of evidence.
51. On the application of the maxim res ipsa loquitor, in agreement with the learned judge, we think that it was the duty of the Corporation to give an adequate explanation of the cause of the accident. This they have failed to do. The maxim is no more than rule of evidence. It is based on common sense and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant. [Barkway v. South Wals Transport Co. Ltd., (1950) 1 All E.R. 392, 394] (21)
26. The contention that the petitioner ought to be relegated to institute a suit for seeking compensation, is unpersuasive. As observed earlier, the essential facts are not in dispute and this court is not precluded from awarding compensation in proceedings under Article 226 of the Constitution of India. (See:SmtNilabati Behera alias Lalita Behera v.State of Orissa & Ors., (1993) 2 SCC 746).
W.P. (C) 499 of 2014 Page 15 of 2627. In Raj Kumar v. Ajay Kumar: 2011(1) SCC 343, the Supreme Court set out the general principles relating to compensation in injury cases' in the context of a claim relating to a motor accident. The relevant extract of the said decision is reproduced as under:
―General Principles relating to compensation in injury case
5. The provision of the Motor Vehicles Act, 1988 ('Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner.The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable.A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury.
This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.(See C.K. SubramoniaIyer v. T. Kunhikuttan Nair MANU/SC/0011/1969 : AIR 1970 SC 376, R.D. Hattangadi v. Pest Control (India) Ltd.
MANU/SC/0146/1995 : 1995 (1) SCC 551 and Baker v. Willoughby 1970 AC 467.
6. The heads under which compensation is awarded in personal injury cases are the following:
W.P. (C) 499 of 2014 Page 16 of 26Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life(shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
W.P. (C) 499 of 2014 Page 17 of 267. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) --involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a).We are concerned with that assessment in this case.‖
28. In the present case, the petitioner claims pecuniary damages on the basis of medical expenses incurred as well as future expenses. The petitioner also claims compensation for loss of earnings. In addition, the petitioner has also claimed non-pecuniary damages and litigation expenses.
29. The petitioner had filed an additional affidavit indicating that he has already incurred expenses to the extent of ₹7,30,293/-. The petitioner has produced his bills for the purchase of medicines and medical treatment. However, BoB has not accepted the same. Mr Aggarwal submitted that an independent medical board be constituted to examine whether the bills submitted by the petitioner are justified, and can be related to the injury suffered by the petitioner. The W.P. (C) 499 of 2014 Page 18 of 26 aforesaid contention is persuasive, and this Court is of the view that all medical expenses incurred by the petitioner in the past are required to be examined by experts to ascertain whether the expenses claimed by the petitioner are relatable to the injury suffered by the petitioner.
30. In so far as the future medical expenses are concerned, the petitioner has filed a certificate from Dr SushilaKataria of Medanta Hospital indicating the medicines and treatment required by the petitioner. The said certificate indicates that the petitioner is required to continue all the prescribed medicines; undertake regular exercise from physiotherapists at least five days a week; undergo regular head CT Scan at least twice a year; and other tests as indicated. In addition, the petitioner would also require tracheostomy care. The petitioner has quantified such recurring costs at ₹43,72,340/-, computed at ₹8,74,468/- per year for a period of five years. This also includes the cost of ₹16,77,160/- for a personal attendant.
31. The Superintendent, AIIMS is directed to constitute a Medical board of two doctors to examine the expenses stated to have been incurred by the petitioner. The petitioner shall produce all the bills and invoices before the medical board so constituted. The Medical Board shall examine the invoices submitted by the petitioner and determine whether the same are directly or indirectly related to the injury suffered by the petitioner on 22.05.2011. The Medical Board may also estimate the petitioner's requirement of future medicines and treatment, relating to the injury either directly or indirectly, and submit a report to this court within a period of eight weeks from date.
W.P. (C) 499 of 2014 Page 19 of 2632. The petitioner claims that in addition to the medicines, the petitioner also requires a bone implant surgery (Cranioplasty). The petitioner has submitted a counseling form from Fortis Memorial Research Institute indicating that the total cost for the surgery including post-operative care would cost a sum of ₹12,66,820/-.
33. This court is informed that only a limited number of specialty hospitals offer the treatment required by the petitioner. The same includes AIIMS Hospital and Sir Gangaram Hospital.
34. It is accordingly directed that the petitioner can avail of medical treatment from AIIMS or Sir Gangaram Hospital and BoB shall bear all expenses for the same.
35. In addition to the above, the petitioner claims loss of earnings quantified at ₹14,09,244/-. The petitioner claims that he was carrying on the business of a property dealer and claims that he has been disabled from carrying on his business due to the injury. In support of this claim for loss of earnings, the petitioner has filed his income tax returns indicating that the petitioner's gross total income for the financial year 2010-11 was ₹2,34,874/-. The same had fallen to ₹66,440/- for the financial year 2011-12. It is asserted on behalf of the petitioner that the income disclosed by the petitioner for the financial year 2011-12 relates to the income earned prior to the incident in question, i.e. from 01.04.2011 to 22.05.2011.
36. It can hardly be disputed that the petitioner's propensity to carry on his business had effectively come to an end on account of the W.P. (C) 499 of 2014 Page 20 of 26 incident. The petitioner had undergone a brain surgery immediately after the incident and was discharged after a period of 38 days. The report at the material time indicates that the petitioner was ―having repetitive speech, no headache, unable to do any work, eat and sleep‖.
37. It is averred in the petition that the petitioner was admitted to hospital for around ten times for a cumulative period of one hundred days during the period 22.05.2011 to 02.06.2013, and has undergone four major head surgeries and one operation for tracheostomy hole. The petitioner has summarized the details of his various admissions to the hospital and the diagnosis in the petition. He has also produced the medical record in support of the said averments. The relevant averments, indicating the number of times the petitioner was admitted to hospital after his initial treatment from 22.05.2011 to 02.06.2013, are set out below:
―a. AIIMS Trauma Center on 9th August 2011: Petitioner was again admitted on 9th August 2011 (for 1 day) at AIIMS trauma centre for facing "DIFFICULTY IN BREATHING‖.
b. AIIMS Trauma Center from 26th April 2012 to 28th April 2012 (3 days):
Petitioner was then admitted for 3 days (i.e. 26th April 2012 to 28th April 2012) and underwent 2nd major head surgery for doing Cranioplasty at AIIMS trauma centre.
c. AIIMS Trauma Center from 27th May 2012 to 3rdJune 2012 (8 days):W.P. (C) 499 of 2014 Page 21 of 26
Petitioner was again admitted in AIIMS Trauma Center for 8 days as he was suffering from ―INCOHERENT BEHAVIOUR AND DROWSINESS‖.
As per the radiology report, ―NCCT head was performed and RT FTP SUBGALEAL AND EPIDURAL COLLECTION MLS TOWARDS LT. BASAL CISTERNS EFFACED‖. Course followed in hospital and ―TAPPING OF SUBGALEAL COLLECTION WAS DONE UNDER ASEPETIC PRECAUTIONS‖ d. AIIMS Trauma Center emergency on 17th August 2012 (for 1 day):
Petitioner had episodes of ―SEIZURE / FIT ATTACKS‖ on 17th August 2012 and was rushed to AIIMS Trauma Center. He was diagnosed with ―RT FTP EPIDURAL COLLECTION BELOW BONE FLAP‖ e. AIIMS Trauma Center emergency on 25th January 2013:
Petitioner had ―WEAKNESS IN RT UPPER LIMB‖ and was diagnosed with ―RT EXTRADURAL COLLECTION‖. He was admitted for a day at AIIMS Trauma Center on 25thJanuary 2013.
f. Medanta, The Medicity Hospital Gurgaon from 22nd March 2013 to 24th March 2013 (3 days): Petitioner was admitted for 3 days at Medanta, The Medicity Hospital, Gurgaon for undergoing an ENT procedure as the petitioner is still on tracheostomy tube and the same could not be decannulated / removed. It was diagnosed that the petitioner still has post intubation tracheal stenosis and also suffers from HBsAg.W.P. (C) 499 of 2014 Page 22 of 26
Details of Procedure / Surgery: ―ON ENDOSCOPIC EVALUATION SUPRASTOMAL STENOTICESEGMENT PRESENT 2 CM BELOW THE VOCAL CORD. GRADE III (70%) STENOSIS PRESENTWHICH IS ABOUT 7 MM IN LENGTH" Due to this, the patient as on date has the tracheostomy hole present and unable to get rid of the tracheostomy tube which requires proper daily care etc. by attendant.
g. AIIMS Trauma Center from 24th to 26th March 2013 (2 days):
Petitioner again had episodes of ―SEIZURE / FIT ATTACKS‖, on 24th March 2013 night and was rushed to AIIMS Trauma Center. He was diagnosed with NCCT HEAD - ―RIGHT FTP CRANIOPLASTY WITH UNDERLYING COLLECTION‖ NCCT SPINE - DEGENERATIVE CHANGES PRESENT.
h. AIIMS Trauma Center from 5th April 2013 to 18th April 2013 (14 days):
Patient was admitted on 5th April 2013 and was diagnosed with ―RT FTP EXTRADURAL COLLECTION WITH UNDERLYING THICKENED DURAL MEMBRANE" Petitioner underwent 3rdmajor Head surgery on April 2013 and the following operative procedure was performed:
―EVACUATION OF EXTRADURAL
COLLECTION WITH EXCISION OF
UNDERLYING MEMBRANE DONE UNDER GA‖
Doctor's at AIIMS Trauma Center mentioned at the time of discharge (on 18thApril 2013) that ―PATIENT HAS RISK OF SEIZURES AND HYDROCEPHALUS. IN CASE OF PERSISTENT VOMITING, HEADACHE OR SEIZURES AND W.P. (C) 499 of 2014 Page 23 of 26 SUDDEN UNCONSCIOUSNESS, PLEASE CONTACT JPNATC CASUALTY IMMEDIATELY. PATIENT WILL NEED GOOD NURSING AT HOME AND WILL BE FOLLOWED IN NEURO OPD REGULARLY‖.
i. AIIMS Trauma Center from 24th April 2013 to May 2013 (8 days):
Petitioner was admitted on 24th April 2013 as he had complaints of ―PERSISTENT DROWSINESS AND WEAKNESS OF LEFT SIDE‖ As per the radiology report ―LEFT FTP CRANIOTOMY WITH SUBDURAL COLLECTION WITH MIDLINE SHIFT AND MASS EFFECT'.OPERATIVE PROCEDURES: ―ASPIRATION OF SUBDURAL COLLECTION UNDER LA ON 25th APRIL AND 26thAPRIL 2013".
j. AIIMS Trauma Center from 8th May 2013 to May 2013 (6 days): Even after the above treatment, petitioner's condition did not improved and he was admitted again on 8th May 2013 and underwent 4th major head surgery. Diagnosis:―FUC OF DECOMPRESSIVE CRANIECTOMY WITH RT FTP EXTRADURAL COLLECTION‖ Petitioner had complaints of ―DIZZINESS AND WEAKNESS OF LEFT SIDE OF BODY‖ The petitioner underwent head surgery and following operative procedure was performed: ―RT FTP BONE FUP REMOVAL WITH DRAINAGE OF EXTRADURAL COLLECTION AND REMOVAL OF EXTRADURAL THICK MEMBRANE‖ Doctor's at AIIMS Trauma Center mentioned at the time of discharge on 13th May 2013 mentioned that W.P. (C) 499 of 2014 Page 24 of 26 ―PATIENT HAS RISK OF SEIZURES AND HYDROCEPHALUS. IN CASE OF PERSISTENT VOMITING, HEADACHE OR SEIZURES AND SUDDEN UNCONSCIOUSNESS, PLEASE CONTACT JPNATC CASUALTY‖.
k. AIIMS Trauma Center from 17th May 2013 to 2nd June 2013 (16 days):
Petitioner was admitted in AIIMS trauma center on May 2013 as he had problems in eating food orally and had discharge of food particles from tracheostomy site. Petitioner was diagnosed with ―TRACHEOESOPHAGEAL FISTULA‖.
38. The above averments are not seriously disputed. The medical records also indicate that the disability suffered by the petitioner is permanent. Thus, plainly, the petitioner is also entitled to compensation for the loss of earnings.
39. This Court is of view that the income tax returns filed by the petitioner are sufficient to establish the petitioner's claim for loss of earnings. It is stated that the petitioner was 62 years of age at the time of the incident, and keeping the aforesaid in view, the learned counsel appearing for the petitioner has computed the loss of earnings at ₹14,09,244/- by using the multiplier of six, as indicated in the second schedule (prior to the amendment) to the Motor Vehicle Act, 1988. Although, Mr Aggarwal has contended that the income tax returns were not sufficient evidence to establish the income of the petitioner, he did not dispute the use of the multiplier of six for computing the loss of earnings. This Court is also of the view that the scale of multipliers listed in the Second Schedule to the Motor Vehicles Act, W.P. (C) 499 of 2014 Page 25 of 26 1988 may be used for guidance in determining the compensation for the loss of his earning capacity. Accordingly, this Court is of the view that a sum of ₹14,09,244/- would be a fair compensation. BoB is, accordingly, directed topay the said amount to the petitioner as compensation for the loss of earnings.
40. There is also little doubt that the petitioner has suffered considerable pain and trauma and the petitioner is entitled to non- pecuniary damages, as well. In parity with the decision of this court in Harinder Kaur (supra), the petitioner is awarded non-pecuniary damages of ₹4,00,000/- (Rupees four lakhs).
41. The compensation for the loss of earnings quantified at ₹14,09,244/- and non pecuniary damages of ₹4,00,000/- shall be paid by BOB, within a period of two weeks from date.
42. The amount payable to the petitioner for the past medical bills and future treatment, other than for the cranioplasty surgery, shall be determined after the receipt of the report of the medical board.
43. List for further proceedings on 23.05.2019.
VIBHU BAKHRU, J APRIL 08, 2019/RK/pkv W.P. (C) 499 of 2014 Page 26 of 26