R.F.A. (OS) No. 7/2009 & 23/2009 Page 1 * 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 2 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 3 (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 104o 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 4 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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