THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 03.03.2011
+ CS(OS) 1298/1982
SUSAN LEIGH BEER ... Plaintiff
- versus -
INDIA TOURISM DEVELOPMENT
CORPORATION LTD ... Defendant
Advocates who appeared in this case:
For the Plaintiff : Mr Madan Bhatia, Sr Advocate with Mr Anup
Kumar Sinha
For the Defendant : Mr K. T. S. Tulsi, Sr Advocate with Mr Amitabh
Marwah, Mr R. S. Mathur and Ms Evneet Uppal
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
1.
Whether Reporters of local papers may be allowed to
see the judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in Digest? YES
BADAR DURREZ AHMED, J
1. The plaintiff has prayed for a decree of ` 2,00,00,000/- (rupees
two crores) by way of damages as also interest at the rate of 18% p.a.
on the said amount from the date of presentation of the plaint till actual
payment. The plaintiff has made the said claim on the basis of an
incident which happened on 05.05.1978 in the swimming pool of
Akbar Hotel which was managed and maintained by the defendant —
CS(OS) 1298/1982 Page 1 of 64
India Tourism Development Corporation Limited. The plaintiff, who
was staying in the said hotel along with her parents and brother, was
injured in the said swimming pool as a result of which she became a
quadriplegic. According to the plaintiff, the injury which had been
caused to her was on account of the negligence on the part of the
defendant in the maintenance of the swimming pool. Insofar as the
defendant is concerned, while the fact that the plaintiff received the
injury on 05.05.1978 in the said swimming pool is not denied, it has
been contended that the injury was a result of the plaintiff’s own
negligence and the defendant cannot be held liable for the same.
2. Briefly put, the case hinges upon three facets. The first being that
according to the plaintiff the injury was caused when she jumped into
the swimming pool at the shallow end and her feet slipped on the tiled
floor of the swimming pool. As a result, she hit her head on the vertical
wall of the swimming pool and incurred the injury which led to her
becoming a quadriplegic. On the other hand, the defendant contends
that the plaintiff received the injury as a result of diving at the shallow
end and not as a result of jumping. Consequently, no negligence could
be attributed to the defendant. The second facet, which is connected
with the first, is the issue as to whether the tiles of the floor of the
swimming pool were slippery because of algae formation? It is the
plaintiff’s case that they were and, therefore, there was clear negligence
CS(OS) 1298/1982 Page 2 of 64
on the part of the defendant inasmuch as the swimming pool had not
been properly maintained and kept safe for the residents of the hotel.
The defendant, on the other hand, contended that the swimming pool
was properly maintained and that, in any event, the injury which
resulted was because of the plaintiff diving into the pool and not
because of her jumping as suggested by the plaintiff. The third facet is
that, in case there is a finding in favour of the plaintiff that the injury
caused to her was because of the defendant’s negligence, the quantum
of compensation is to be determined. These are the broad parameters
of this case.
Averments in the Plaint:
3. In the plaint, it is alleged that in May, 1978, the plaintiff was on
vacation in India along with her parents and stayed in Akbar hotel
situated at New Delhi which was being run and managed by the
defendant. On 05.05.1978, during her stay in the hotel, the plaintiff
went to the swimming pool at about 5:15 pm for a swim. It is stated
that the plaintiff was an experienced swimmer, having been a
Queensland (Australia) underage champion and was also a member of
the Queensland Women’s Water Polo Team for a number of years. It is
averred that in the beginning of 1978, the plaintiff had also been invited
to join the Australian Women’s Water Polo Team and was expected to
travel to Germany with the Australian Team in August, 1979.
CS(OS) 1298/1982 Page 3 of 64
4. On the fateful day, that is, on 05.05.1978, at about 5:15 pm, the
plaintiff jumped into the swimming pool from the shallow end,
opposite the diving board. According to the plaint, the plaintiff had
reason to believe that the bottom of the pool was not slippery and had
been kept clean of all slimy material which otherwise accumulates if
the pool is not properly cleaned. According to the plaintiff, it is an
implied representation by the owner of the swimming pool that the
floor of the pool is not slippery and is safe for persons using the pool to
stand on the floor of the pool without slipping. According to the
plaintiff, the defendant had been extremely negligent in covering the
floor of the pool with glazed tiles which were very slippery and also in
not cleaning and maintaining the floor sufficiently, resulting in the
growth and accumulation of slime on the tiles. Because of this, as soon
as the plaintiff jumped into the water and her feet touched the floor of
the pool, they slipped, resulting in loss of control by the plaintiff and
the plaintiff fell backwards and her head hit against the wall of the
pool.
5. It is further averred that as a result of the aforesaid fall, the
plaintiff suffered serious head and back injuries and was unable to
swim out of the pool. The plaintiff’s father and brother sensing that the
plaintiff had been injured and on noticing blood in the water,
immediately swam to the plaintiff’s assistance and lifted her out of the
CS(OS) 1298/1982 Page 4 of 64
pool carefully. Subsequently, the plaintiff 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. As per the plaint, the said Dr Sehgal diagnosed that the
plaintiff had suffered a head injury with fracture dislocation of the
cervical dorsal column causing paralysis of the four limbs and loss of
sphincter control. It is stated that Dr Sehgal later advised that the
plaintiff should be transported to her home in Brisbane, Australia.
After a prolonged hospitalization in Delhi, accompanied by a
neurosurgeon and another doctor, the plaintiff was flown to Australia.
From 16.06.1978 to 27.10.1978 the plaintiff remained admitted 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 stated in the plaint that despite
sustained medical treatment, the plaintiff has not been able to recover
from the spinal injuries which are of a permanent character and have
physically incapacitated the plaintiff for the rest of her life. She is now
permanently confined to a wheel chair, being a quadriplegic.
6. It is alleged in the plaint that apart from the physical agony and
mental anguish which the plaintiff underwent during her treatment, the
plaintiff also suffered emotional and psychological pain which will live
with her as long as she lives. According to the plaintiff, she had a very
CS(OS) 1298/1982 Page 5 of 64
bright and fruitful future ahead of her but the same was cut-short by the
said permanent disability suffered by the plaintiff on account of utter
negligence and carelessness of the defendant, its employees, servants
and agents. It is alleged that the defendant was under a duty to keep its
swimming pool safe for the purposes of swimming. According to the
plaintiff, the incident speaks for itself and the plaintiff is entitled to the
benefit of the maxim of res ipsa loquitur. The sum of ` 2 crores which
has been claimed by the plaintiff by way of damages has been
computed as under:-
i) Expenses incurred by the plaintiff on
medical treatment and care in India
and Australia - ` 20,00,000.00
ii) Damages on account of physical pain,
mental anguish and psychological
anguish and loss of education - ` 50,00,000.00
iii) Damages on account of loss of - ` 1,30,00,000.00
earnings for the rest of her life
Total - ` 2,00,00,000.00
Consequently, a decree of ` 2 crores along with interest at the rate of
18% p.a. from the date of presentation of the plaint till realization has
been prayed for by the plaintiff.
Averments in the Written Statement:
7. A preliminary objection was taken by the defendant that the
plaint was not filed by a duly authorized person. According to the
CS(OS) 1298/1982 Page 6 of 64
defendant, the plaint has been signed and verified by Mr Geoffrey Beer
as the alleged attorney of Ms Susan Leigh Beer but the alleged power
of attorney has neither been filed with the plaint nor is there any list of
documents / reliance filed with the plaint making a reference to the
same.
8. The defendant also took the plea that the suit is liable to be
dismissed for non-joinder of a necessary party. According to the
defendant, while it is admitted that the defendant had been running a
five-star hotel known as Akbar Hotel, the defendant was only a lessee
from the New Delhi Municipal Committee, which is the owner of the
building and the premises including the swimming pool. According to
the defendant the NDMC was, therefore, a necessary party. Since the
plaintiff had not impleaded the NDMC as a party to the suit, the same
was liable to be rejected for non-joinder of a necessary party.
9. As per the written statement, Mr Geoffrey Beer and the plaintiff
stayed at the hotel as alleged. However, it is further stated that the
guests registered at the hotel could use the swimming pool entirely at
their risk and responsibility and that there was no express or implied
obligation on the part of the hotel in this behalf. According to the
defendant, the hotel merely permits the guests to swim if they so
choose at their absolute volition without any charge for the same or
CS(OS) 1298/1982 Page 7 of 64
consideration whatsoever. It was even contended that, therefore,
merely because a guest may choose to swim at the swimming pool, it
cannot create a contract or fall within the ambit of any contractual
relationship in this regard and no question of any breach of contract
arose at all. It was stated that any guest, who uses the swimming pool,
does so on an ―as is‖ basis. It is further stated that insofar as the
children of guests are concerned, the parents are entirely responsible for
the safety of the children in the pool and that even otherwise, according
to the rules, the defendant does not accept any responsibility for any
accident. It was also contended that as regards the construction of the
swimming pool, the same had been done by the NDMC and that it
conformed to the well accepted and well recognized standards.
10. The defendant further stated that the plaintiff did not observe the
rules with regard to the use of the swimming pool and was herself
wholly negligent and, in any event, no claim would lie against ITDC.
11. The defendant further stated in the written statement that the
plaintiff should not have jumped into the pool from the shallow end and
that swimmers have necessarily to use the diving board and dive into
the deep end of the swimming pool. According to the defendant, the
jumping or diving at the shallow side by the plaintiff was wholly
wrong, negligent and contrary to the well accepted norms of swimming
CS(OS) 1298/1982 Page 8 of 64
and in violation of the laid down rules. It was further alleged that there
are fixed stairs built into the swimming pool for going into the
swimming pool and obviously the plaintiff did not enter the swimming
pool through the stairs, which was a wholly negligent act on her part.
According to the defendant, the plaintiff had been negligent in jumping
into the pool from the shallow end even assuming, without admitting
that she had jumped into the pool as alleged by her. The defendant
stated that the incident happened otherwise than what was alleged. The
defendant denied that the bottom of the pool was slippery and also
denied that the plaintiff slipped in the swimming pool as alleged. It
was also contended that the plaintiff had not even jumped into the
swimming pool as alleged by her. The defendant stated that the
swimming pool was cleaned according to the well recognized standards
and on the date of the incident also the swimming pool had been
cleaned. Accordingly, it was not slippery. The defendant stated that as
a matter of fact, the injury to the plaintiff could not have been suffered
as a result of the plaintiff jumping and slipping in the swimming pool
as alleged.
12. The defendant stated that swimming pools with glazed tiles are
well accepted. It was again denied that the tiles covering the floor of
the pool at the said hotel were slippery as alleged or otherwise and that
CS(OS) 1298/1982 Page 9 of 64
the defendant did not keep the floor of the pool clean or did not
properly maintain the same.
13. In the written statement it is further stated that as a matter of fact,
the plaintiff and her brother were playing in and around the swimming
pool and all of a sudden the accident happened. The defendant denied
the averments and allegations in the plaint to the effect that her feet had
touched the floor of the pool and that they slipped resulting in the loss
of control of the plaintiff and that her head hit against the wall of the
pool. It was further averred in the written statement that the injury
caused to the plaintiff did not permit her to remember correctly
anything of what had actually happened. According to the defendant,
even the parents and brother of the plaintiff could not describe the
accident when the defendant made enquiries in this behalf from them
after the accident and before they left the hotel. The defendant further
stated that there was a lifeguard in attendance who had immediately
gone to rescue the plaintiff after seeing the sudden accident and that the
pool was well marked indicating the depth of water at different places.
The plaintiff was entirely responsible for the incident.
14. In paragraph 11 of the written statement, it is admitted that the
plaintiff, after having suffered the injury, did not swim out of the pool.
However, it is stated that it was an employee of the defendant, who was
CS(OS) 1298/1982 Page 10 of 64
the attendant at the swimming pool, who was responsible for bringing
the plaintiff out of the water. As per the written statement, the parents
of the plaintiff were not close to the pool but were at a distance relaxing
in the chairs. The plaintiff’s brother, however, was close to the pool
but he was dazed at that point of time and could not say as to what
happened. The defendant denied that the parents of the plaintiff had
seen the incident or that they had rescued the plaintiff as alleged in the
plaint.
15. Interestingly, in the written statement the defendant has denied
that the plaintiff had suffered any spinal injuries or any injuries of a
permanent character. It was denied that the plaintiff was in any way
physically incapacitated.
16. The insensitivity of the defendant is disclosed by the following
averment in the written statement:-
―It is clear that the injuries whatever they were, did not
affect the mobility of the plaintiff which is evident also
from the fact that she had been found fit to travel soon after
the accident and she could have travelled even earlier than
she did.‖17. The defendant has also stated that it had a daily routine for
cleaning of the swimming pool according to standard procedure and
processes, before the swimming pool is opened for use every day.
Thus, according to the defendant, there was neither any chance at all of
CS(OS) 1298/1982 Page 11 of 64
the swimming pool being slippery or unsafe nor was it slippery orunsafe. According to the defendant, it had provided the help and
assistance of a lifeguard, notified the conditions subject to which the
pool could be used as licencees, displayed information regarding
different depths of the water at different places by markings in bold
English letters. The defendant stated that the incident was the result of
violations of the conditions for use of the pool on the part of the
plaintiff and because of the utter negligence on the part of the plaintiff.
The defendant denied that the principle of res ipsa loquitur would
apply. The defendant also denied that any damages or losses, as
claimed, were caused to the plaintiff. Consequently, the defendant
contended that the suit be dismissed with costs.
Issues:
18. On the basis of the averments made in the plaint and the written
statement, the following nine issues were framed:-
1. Whether the suit has been filed by duly authorized person?
2. Whether New Delhi Municipal Committee was owner of the
building of Akbar Hotel and was a necessary party?3. Whether the tiles covering the floor of the swimming pool
were slippery?4. Whether the floor of the swimming pool was not clean and
had not been properly maintained, resulting in the growth
and accumulation of slime on the tiles?5. Whether the plaintiff suffered injuries on account of the
nature and condition of the bottom of the pool and due toCS(OS) 1298/1982 Page 12 of 64
negligence of the hotel? If so, what injuries were suffered
by her?6. Whether the plaintiff was required to observe any rules in
the use of swimming pool and she did not observe the said
rules and was herself negligent for the injuries suffered, if
any?7. Whether the swimming in the pool was at the risk and
responsibility of the plaintiff (the guest) and there was no
obligation on the hotel in this behalf?8. Whether the defendant was in legal duty to keep the
swimming pool safe for swimming of guests and the
plaintiff was entitled to the benefit of the maxim res ipsa
loquitur?9. To what amount, if any, the plaintiff is entitled?
As many as 22 witnesses have been examined on behalf of the
plaintiff. Of these the most important are PW1 (the plaintiff herself),
PW2 Mr G.L. Beer (the plaintiff’s father), PW4 Dr J. A. Smith
(Neurosurgeon– expert witness), PW8 Mr G. L. McDonald (expert
witness), PW14 Mr K. R. Dobson (expert witness), PW18 Mr L. I. Sly
(expert witness), PW19 Mrs P. J. Beer (the plaintiff’s mother) and
PW22 Dr Arjun Dass Sehgal (the doctor who initially treated the
plaintiff at Holy Family Hospital). It appears that there is some error in
the assigning of numbers to these witnesses. The error is that Mrs P. J.
Beer, who is shown at serial No. 19 of the list of witnesses, has been
assigned the number ‗PW19′. However, Dr Arjun Dass Sehgal, who is
shown at serial No. 22 of the list of witnesses, has also been assigned
the number ‗PW19′. Therefore, for the purposes of this suit, I would
CS(OS) 1298/1982 Page 13 of 64
treat Mrs P. J. Beer as PW19 and Dr Arjun Dass Sehgal as PW22. Thisanomaly has probably appeared because 21 witnesses were examined in
Australia and one witness, that is, Dr Arjun Dass Sehgal was examined
in Delhi. The defendant examined two witnesses, namely, DW1 Dr G.
G. Manshramani and DW2 Balram Verma (the lifeguard at Akbar
Hotel).
Issue No. 1:
19. It has been contended by the defendant that the suit has not been
filed by a duly authorized person. It is an admitted position that the
plaint was filed on 21.01.1982 and the same purports to have been filed
by the plaintiff through her attorney (Geoffrey Beer), who was
appointed as the attorney by the plaintiff by virtue of a power of
attorney dated 15.01.1982. The said Geoffrey Beer is the plaintiff’s
father. He had signed and verified the plaint in New Delhi on
21.01.1982 claiming to be the attorney of the plaintiff as per the said
power of attorney dated 15.01.1982.
20. According to the defendant, the power of attorney dated
15.01.1982 did not accompany the plaint and that it was filed for the
first time on 15.11.1991, after almost 10 years. It was also contended
that the said power of attorney cannot be regarded as valid or authentic
as it is allegedly not executed in the presence of a notary nor has it been
authenticated by a notary. It was also contended that the plaintiff,
CS(OS) 1298/1982 Page 14 of 64
despite ample opportunity, failed to get the power of attorney dulyproved and exhibited. Consequently, it has been argued that Mr G. L.
Beer cannot be regarded as an authorized agent under Order 3 Rule 2
CPC and, therefore, the suit was not properly verified, signed or
instituted and, therefore, the same is liable to be dismissed on this
ground.
21. On behalf of the plaintiff, it was urged that the suit had been
instituted by a duly authorized person. The plaintiff had authorized her
father Mr G. L. Beer by virtue of the said power of attorney dated
15.01.1982 and even otherwise to institute the suit as also to sign and
verify the plaint on her behalf. It is clear that the plaintiff had become
virtually immovable because she had become a quadriplegic on account
of the said incident. It was, therefore, extremely difficult, if not
impossible, for her to travel to New Delhi from Australia to present the
plaint. It is in these circumstances that the plaintiff had authorized her
father Mr G. L. Beer to sign, verify and file the plaint. She had also
executed a power of attorney dated 15.01.1982. It was also contended
on behalf of the plaintiff that, in any event, the plaintiff has clearly
testified that she had authorized Mr G. L. Beer to institute the present
suit. Thus, in any event, there was a clear ratification on her part. The
learned counsel for the plaintiff also placed reliance on the judgment of
the Supreme Court in the case of United Bank of India v. Naresh
CS(OS) 1298/1982 Page 15 of 64
Kumar: 1996 (6) SCC 660 wherein it was, inter alia, held thatratification can be proved later and that a mere irregularity in procedure
should not defeat a substantive right of an individual.
22. The present suit was instituted as an indigent person’s application
being IPA 1/1982. The order passed in IPA 1/1982 on 22.01.1982
clearly records that the application was presented by the father who
held a power of attorney from the applicant who was stated to be
paralyzed and was in Australia. By virtue of the said order dated
22.01.1982, the applicant (the plaintiff herein) was exempted from
presentation of the application in person and the father of the applicant
(plaintiff) was allowed to do the same. It was also directed as under:-
―Let the authorized agent and father of the plaintiff be
examined.‖Thereafter, on 22.01.1982 itself, the statement of Mr Geoffrey Beer
(the plaintiff’s father) was recorded on solemn affirmation and was,
inter alia, to the following effect:-
―plaintiff is my daughter. I hold power of attorney from the
plaintiff in my favour to file the present petition. She does
not own any immovable property…………… She is
completely paralyzed and unable to work. She is, therefore,
unemployed. She has no source of income other than the
pension given to her by Australian Government…….. She is
unable to pay the court fees on the claim………… I am
fully aware of the matter in controversy in this suit. The
claim is correct and well-founded. I am able to answer all
material questions.‖CS(OS) 1298/1982 Page 16 of 64
Subsequently, by an order dated 24.09.1982, IPA 1/1982 was directedto be numbered and registered as a suit. From this, it is clear that the
plaintiff’s father Mr G. L. Beer had appeared before this Court on
22.01.1982 and had categorically stated that he held a power of
attorney from the applicant. The plaint also indicated that it had been
signed by Mr G. L. Beer as the attorney of the plaintiff on the basis of a
power of attorney dated 15.01.1982.
23. The plaintiff came to the witness box as PW1 and, in response to
the question as to whether she felt she was going to recover after the
treatment at Melbourne in 1980-1981, she answered:-
―I think at the end of this treatment I realized that I was not
going to recover any more mobility or sensation and we
decided by that time to commence this court action for
compensation.‖A further question was put to her as to whether in 1981 she decided to
file this action herself. She answered in the affirmative. She also
stated that the suit was filed at her instance in early 1982 and that she
had authorized her father to file the suit. She also stated that she had
executed a power of attorney in his favour for this purpose. As there
was some controversy before the court examiner in Australia with
regard to whether the power of attorney should be marked as an exhibit
or simply marked, the said examiner marked the document both as
Exhibit PW1/17 and as Mark ‗A’. Of course, the plaintiff PW1
CS(OS) 1298/1982 Page 17 of 64
admitted her signature on the said document of power of attorney. Inher testimony, the plaintiff (PW1) also stated that whatever has been
stated in the plaint is correct.
24. I also noticed from the record that an application (IA
12075/1991) had been filed for placing the power of attorney of the
plaintiff in favour of her father on the record of the case. Along with
the application was an affidavit of one Mr Mohan Lal, who was the
clerk of Mr Madan Bhatia, who was the Advocate on behalf of the
plaintiff. In the said affidavit dated 15.01.1991, it is stated that the
plaintiff’s father Mr G. L. Beer had handed over the power of attorney
in his favour for being filed in this Court when the suit had been filed.
It is further stated that he had been informed that when the evidence
was being recorded in Brisbane, Australia it was discovered that the
said power of attorney was not on the record of the case. When the
counsel for the plaintiff returned to India, the said clerk checked the
personal files lying in the office of the said counsel and discovered that
the power of attorney was in those files. The said clerk further stated
that the said power of attorney had not been filed on account of
inadvertence and because of an accidental slip. On the said application
No. 12075/1991, this Court, by an order dated 25.11.1991, directed that
the power of attorney executed by the plaintiff in favour of her father,
which had been filed along with the application, be kept on record.
CS(OS) 1298/1982 Page 18 of 64
25. From the above, it is clear that in the plaint itself it has been
stated that the same was being signed, verified and instituted by Mr G.
L. Beer on behalf of his daughter on the basis of the power of attorney
dated 15.01.1982. Inadvertently, that power of attorney had not been
filed along with the plaint and was subsequently filed on 25.11.1991 by
virtue of an application being IA 12075/1991 which was allowed and
the power of attorney was taken on record. Apart from this, the plaintiff
has clearly testified that the contents of the plaint were correct and that
the same had been instituted by her father on her instructions. There is,
thus, a clear ratification on her part. It is not a case where a person has
instituted a suit representing himself to be an authorized agent and
where the principal has refuted the claim. Mr G. L. Beer, undoubtedly,
verified and filed the plaint as an agent of the plaintiff. This fact has
been confirmed by the plaintiff herself. The Supreme Court in the case
of United Bank of India v. Naresh Kumar (supra) clearly held that the
procedural defects which do not go to the root of the matter should not
be permitted to defeat a just cause and that there is sufficient power in
the Courts, under the Code of Civil Procedure, to ensure that injustice
is not done to any party who has a just cause. The Supreme Court
further observed that as far as possible a substantive right should not be
allowed to be defeated on account of a procedural irregularity which is
curable. In the case before the Supreme Court, the issue arose with
CS(OS) 1298/1982 Page 19 of 64
regard to the authority of a person to sign the pleadings on behalf of acompany. The Court observed that a person may be expressly
authorized to sign pleadings on behalf of a company, for example by
the Board of Directors passing a resolution to that effect or by a power
of attorney being executed in favour of any individual. It was
specifically observed that even in the absence of such a resolution or a
power of attorney, in cases where pleadings have been signed by one of
its officers, a Corporation could ratify the said action of its officer in
signing the pleadings and that such ratification could be expressed or
implied. It was further held that the Court could, on the basis of the
evidence on record, after taking into account all the circumstances of
the case, especially with regard to the conduct of the trial, come to the
conclusion that the corporation had ratified the act of signing of the
pleading by its officer. In the present case, I find that it has come in
evidence that the plaintiff had decided to commence the action for
compensation when her treatment ended and she realized that she
would not recover any further. She had clearly stated that she had
asked her father to institute the present suit and had even authorized
him by executing the power of attorney dated 15.01.1982. The present
suit had been instituted by her father as her authorized attorney. Even
if I do not go into the matter of admissibility of the document of power
of attorney, the action of the plaintiff’s father in signing, verifying and
CS(OS) 1298/1982 Page 20 of 64
filing the plaint stands fully ratified by the plaintiff. Therefore, theonly conclusion that can be arrived at is that the suit had been filed by a
duly authorized person and this issue is accordingly decided in favour
of the plaintiff and against the defendant.
Issue No. 2:
26. This issue, although framed, was not pressed by the learned
counsel for the defendant at the time of hearing and, therefore, the same
is not being dealt with.
Issue Nos. 3-8:
27. These issues are being discussed together as they are all
inextricably linked with each other. Essentially these issues require the
Court to determine the following:-
(1) Nature of the injuries suffered by the plaintiff (issue No.5);
(2) Cause of the injury; whether caused by jumping as alleged
by the plaintiff or diving as propounded by the defendant
(issue No.5);
(3) It is obvious that if the cause of injuries is diving, the
plaintiff’s case falls to the ground. In case the injuries have
been caused by jumping into the pool, the plaintiff has to
further establish:-
CS(OS) 1298/1982 Page 21 of 64
(i) that the tiles at the floor of the swimming pool
were slippery, as they were not properly
maintained (issue Nos. 3, 4 & 8); and(ii) that the plaintiff was herself not negligent
(issues 6 & 7)Nature of injuries:
28. With regard to the nature of the injuries suffered by the plaintiff,
the testimony of PW22 Dr Arjun Dass Sehgal, who treated the plaintiff,
is most material. According to Dr Sehgal, the plaintiff’s X-ray showed
that there was a fracture of cervical-7 vertebra. She also had a lacerated
wound on the top of her head going to the left of the midline.
According to him, she suffered a compression fracture of the cervical
seventh vertebra. According to him, that was a flexion injury. He
further stated that the plaintiff had a permanent disability and because
of the injury, her legs, bowel and bladder were paralyzed. She had
permanent disability and she had no sensation of pain or touch or
temperature below the cervical column. He stated that the plaintiff was
admitted on 05.05.1978 and was transferred to Australia on 13.06.1978
and that he had accompanied the plaintiff to Australia. He further
stated that the X-rays were taken on his advice and they are exhibited
as Exhibits PW1/7 to PW1/16.
29. PW4 Dr J. A. Smith, who specialized in neurosurgery, stated that
the plaintiff had consulted her. He stated that he had seen the X-rays of
CS(OS) 1298/1982 Page 22 of 64
her spinal injury and had also examined her. He categorically stated
that after seeing the plaintiff and seeing her X-rays, there was no
possibility of a recovery from the spinal injury which she had
sustained. He stated that her injury was permanent. In fact, he had
given a report which has been marked as Exhibit PW4/1. He re-
affirmed what he stated in the said report. Dr Smith stated that a
compression injury would be different from a flexion injury of the
cervical spine. But, he clarified that one would have to define the ways
in which the injuries are to be described. According to him, if one
considers a flexion injury then there was some degree of compression
occurring in that type of injury and that a degree of compression is
usually in the anterior portions of the vertebral bodies. Thus, according
to the said witness, it cannot always be said that ―it is this sort of injury
or that sort of injury‖. However, Dr Smith stated that it is a matter of
describing what one sees on the X-rays in relation to what happened
clinically. He stated that he tried to clarify by stating that if the present
case was a true vertical compression injury, then one might expect that
the features would be that of a burst fracture. And, according to Dr
Smith, the present case is not one of burst fracture.
30. Exhibit PW2/33 indicates the external injury to be a contusion
lacerated wound about 1 inch long in the left parietal area just along the
mid line. Exhibit PW19/1 which is the admission and discharge report
CS(OS) 1298/1982 Page 23 of 64
at Holy Family Hospital, New Delhi, indicates the diagnosis of the
plaintiff to be ―Quadriplegia ح# C6-7‖. Exhibit PW19/3, which is the
case summary and discharge record at Holy Family Hospital, indicates
the investigation to reveal that the plaintiff’s injury caused
―quadriplegia ح# cervical spine‖. The X-rays were shown to indicate a
fracture in the cervical spine at C6-7. There was no fracture in the skull.
The X-ray report which forms part of Exhibit PW19/3 indicates ―no
fracture shown in skull, fracture C6 & 7 with slight ant. sliding of C7
under C6‖.
31. From the above evidence, it is abundantly clear that the nature of
the injuries were such which resulted in the fracture of the 6th and 7th
cervical vertebrae with slight anterior sliding of the 7th vertebra under
the 6th vertebra. This resulted in the plaintiff becoming a quadriplegic.
32. At this juncture, it would be relevant to examine the testimony of
the plaintiff, who was examined as PW1. She stated that she
represented her school in swimming every year of her high school life.
She attended the Queensland State Championship for under-10s in the
butterfly stroke and she was a member of many State teams for water
polo as well. She also represented the under-18 team and the open
women’s team of her State. She had travelled to Tasmania and to New
Zealand and on those occasions her team had won the gold medal. She
CS(OS) 1298/1982 Page 24 of 64
had also been invited into the Australian team to tour the United States
but she had previously been committed to travel to New Zealand so she
chose to travel to New Zealand. She stated that she was a member of
the Queensland team and was a co-captain of the team which travelled
to New Zealand.
33. The plaintiff further stated in her testimony that she had gone to
take a swim on 05.05.1978 in the swimming pool at Akbar Hotel at
about 5 O’clock. According to her, it had been a hot day and they had
gone down to the pool; her father, mother, her younger brother and
herself. When they got to the pool side area, her father, brother and
mother went ahead to get into the pool and she stopped at the edge of
the pool to take off her robe and her sandals. Thereafter, she stated that
she remembered that her hair got tangled in the strap of her swimming
costume. She took time to fix that up and to untangle it. Then she
walked over to the shallow end of the pool and she jumped into the
pool. She stated that when she jumped in the pool she felt that her feet
touched the bottom of the pool and immediately they slid forward
throwing her backwards against the side of the pool. She felt her head
strike the side of the pool. Then her brother and father came over and
supported her in the pool and they, with the help of another person,
whom she did not know, lifted her on to the side of the pool. She stated
that she remembered that her father was being very careful in lifting her
CS(OS) 1298/1982 Page 25 of 64
and he supported her very gently but very strongly and her head was
very stable in the lifting. She stated that when her feet touched the
bottom of the pool, she found it to be very slippery and immediately
both her feet slid forward. She stated that her body was tingling at that
time, right from her shoulders down to her feet. And, then her body
started to go numb. She stated that she also had a small cut on the back
of her head where it struck the side of the pool and there was a bit of
blood in the water of the pool. She stated that while they were waiting
for the ambulance, they transported her on a stretcher-like thing to the
manager’s room where they waited for about two hours. Thereafter,
she was transported to Holy Family Hospital in the said ambulance.
Dr Arjun Sehgal was present at Holy Family Hospital and he took
charge of the case. He arranged to have the X-rays taken etc.
34. This part of her testimony has gone unchallenged. From the
above evidence, it is clear that the plaintiff has been able to establish
that she had gone to take a swim along with her family members in the
swimming pool at Akbar Hotel at about 5 pm on 05.05.1978. That
when she jumped into the pool from the shallow end, her feet, on
touching the floor of the pool, slid forward as the same was slippery.
Because of this, her head hit the side of the swimming pool.
Consequent thereupon, she suffered the injuries to her cervical spine
and the lacerated injury on her head. The injury caused to the cervical
CS(OS) 1298/1982 Page 26 of 64
spine and particularly the 6th and 7th vertebra, as indicated above,
resulted in her ultimately becoming a quadriplegic, i.e., not having any
sensation below her neck. In layman’s language, she was paralyzed
neck downwards. It is also clear from the testimony of PW4 Dr J. A.
Smith that there was no chance of her recovery and the injury sustained
by her was for life.
35. Thus the nature of the injuries stand determined.
Cause of injuries:
36. It is now to be seen, what is the exact cause of the injuries. The
plaintiff’s version has already been referred to above. According to
her, she jumped from the shallow end of the pool and her feet touched
the bottom of the pool. The floor of the pool was very slippery as a
result of which her feet slid forward and her head struck the side of the
pool. In the course of cross-examination, she was asked as to whether
she entered the pool from the same side as her parents. She answered
by stating that her mother entered the pool using the ladder and that her
father entered from the same side as her and she thought her brother
went around to the right side of the pool. When she was asked as to
how she knew that she had entered the pool from the shallow end, she
answered, because it looked shallow. The counsel for the defendant
remarked and questioned — ―It looked shallow. And, how many
different pools would you have done swimming by then?‖ The answer
CS(OS) 1298/1982 Page 27 of 64
given by the plaintiff was that she would have swam in many hundreds
of pools in her life. Then she was asked a question as to what is the
difference between a jump and a dive? She answered that a dive is
when you dive into the water and when you have your hands out ahead
to break the impact of the water on your face or on your head and a
jump is when you jump feet first into the pool. The counsel for the
defendant questioned the plaintiff that the place of the head injury
could not have been caused by striking against the wall of the pool. To
this, the plaintiff answered that she was injured in the way that she
remembered and the way that she had deposed earlier. She jumped in
and her feet slipped on the bottom of the pool and she fell back striking
her head against the side of the pool. She further stated that whether it
was actually the edge of the pool or side of the pool, she was not in a
position to say with certainty, because it happened in a fraction of a
second. The counsel for the defendant also put it to her that she could
have only sustained the injury if she had struck her head against the
bottom of the pool. To this, her pointed answer was ―my head was
nowhere near the bottom of the pool. I jumped in feet first‖.
37. A different situation was put to the plaintiff by the learned
counsel for the defendant. He questioned that with regard to the
likelihood of the injury having been received on the face, after one
dives into the pool, was it not possible that on account of some
CS(OS) 1298/1982 Page 28 of 64
misjudgment, when one is about to strike the bottom of the pool, in
order to save one’s face, one would turn one’s head towards the water
to push oneself upwards. The plaintiff answered that that is not
possible at all. If such a thing were to happen, she would have merely
used her hands to push her head away from the bottom of the pool.
Then, the learned defence counsel suggested that ―if your hands are
unable to stop then to save your face you would turn your head towards
the bottom of the pool‖. To this, also, the plaintiff replied that she
could not imagine any circumstance where she would turn her head
towards the bottom of the pool. She stated that she would have lifted
her head away from the bottom of the pool and that would be a natural
reaction– ―to turn your head away rather than towards something
being hit‖.
38. From the above, it is clear that the effort of the defendant’s
counsel was to propound an alternate theory for the cause of the
plaintiff’s injury. The first alternative was that the plaintiff took a dive
in the shallow end of the pool and hit her head on the bottom of the
pool. The second alternative propounded was that the plaintiff took a
dive in the shallow end of the pool and seeing that she had
miscalculated her dive as she was fast approaching the bottom of the
pool, she turned her head and thereby got injured on the back of her
head. Both these alternative hypotheses were clearly rejected by the
CS(OS) 1298/1982 Page 29 of 64
plaintiff, who stood firm with her initial statement that she sustained
the injury when she jumped into the pool from the shallow end and the
floor of the pool being slippery, her feet slid forward and her head hit
the side wall of the pool.
39. PW2 Mr G. L. Beer stated in his examination-in-chief that he had
represented his school in swimming. As a soldier in World War II, he
was the backstroke champion of the 2nd 9th Regiment. He also stated to
be a backstroke champion of the Fourth Brigade of the AAF and that he
was a member of the Scuba Association and that he was a diver. Mr G.
L. Beer stated that the angle at which one would dive from the edge of
a pool, not from a racing block but from the edge of the pool, would be
15 degrees. On being asked the question as to when somebody was to
dive into the pool from the shallow end of the pool, what would be the
angle of the dive, Mr G. L. Beer answered–15 degrees. He further
stated that from the starting blocks since they are higher than the edge
of the pool, the angle of the dive would be close to 30 degrees.
40. With regard to the manner in which the incident took place, PW2
Mr G. L. Beer stated that his son entered the pool just before his wife
and himself. His wife entered through the ladder because she did not
like immersing quickly. He walked past the ladder and as he had an
injured knee at that time and was on a crutch, he sat on the edge of the
CS(OS) 1298/1982 Page 30 of 64
pool and then slipped into the water so as to avoid any jar to his knee,
which would be caused by jumping in. He stated that the plaintiff
entered the pool after them. He said that she removed her gown and
sandals while his wife and he swam to the centre of the pool and their
son was possibly half way from the centre of the pool. He stated that
they watched the plaintiff walk down the edge of the path where she
had draped her gown and sandals. She came straight from the bottom
of the path at the shallow section and jumped into the water from the
edge of the pool. The water was about 2′ 6” deep at that point. He
then saw her slip backwards and disappear under the water. He
believed that she may have struck her head. Then, he stated that his
wife was obviously also watching because she called out ―Sue’s hurt‖.
He then immediately swam where the plaintiff was. His son Nicholas
had also obviously seen the incident and he reached the plaintiff before
him (Mr G. L. Beer). The said witness positively stated that he saw the
plaintiff slipping backwards. He stated that although he did not see her
head striking against anything, but she disappeared under the water and
he feared that she struck her head under the wave trap.
41. He further stated that when he reached the place where the
plaintiff was, his son Nicholas was supporting her. She was on her
back, face upwards and she had a small cut on the top of her head
which he estimated was between half and three quarters of an inch
CS(OS) 1298/1982 Page 31 of 64
long. He stated that there was a little bit of blood coming out of the cut
and it is then that he realized that she had struck her head on the edge
of the pool.
42. PW2 Mr G. L. Beer further stated that the plaintiff was quite
conscious, but dazed and he went around the other side of her. His son
Nicholas was on that side. He asked a bystander to help him lift her
from the pool. With great care they lifted her and slid her over the edge
of the pool. He stated that he was conscious that his foot slipped on the
glazed tiles on the floor of the pool. He knelt beside her and she said
―Oh no please‖. He asked her to gently move her toes and fingers and
found to his horror that she could not move them. He then asked a
bystander to get the manager of the hotel and a doctor. It is further
stated by the said witness that after some time two men arrived, one
with a portmanteau and he turned out to be Dr Chowdrah and the other,
he presumed, was the manager of the hotel. The said witness was
angered by the fact that the said doctor merely said that the plaintiff
was suffering from concussion and that she should be taken to the
hospital for the night in the hotel car. He demanded that an ambulance
be called with a specialist doctor. The manger suggested that the
plaintiff be lifted but the witness Mr G. L. Beer absolutely refused to
allow her to be moved. However, they gently moved her on to a lylo
because it was very hot at the pool side. According to this witness the
CS(OS) 1298/1982 Page 32 of 64
ambulance took about two hours to arrive which was an incredibly long
time. Thereafter, she was taken to Holy Family Hospital. A doctor
was attending, whose name was later found to be Dr Arjun Sehgal. He
required X-rays to be taken. The doctor told him that her daughter had
suffered a spinal injury and she was paralyzed from the chin down.
43. From the testimony of PW2 Mr G. L. Beer also it is apparent that
the plaintiff suffered the injury in the manner indicated by her, that is,
when she jumped into the pool in the shallow end, her feet slipped on
the floor of the pool and slid forward and in the process she hit the
back/ top of her head on the side of the pool which ultimately resulted
in the fracture of her cervical column around the 6th /7th cervical
vertebra. This is what caused her to be paralyzed from chin down.
44. PW19 Mrs P. J. Beer, the plaintiff’s mother also indicated the
manner in which the incident took place on 05.05.1978. She said that
approximately at 5 pm the four of them went to the pool. They had
come down in the elevator and walked from the ramp to the pool.
According to her, the plaintiff stopped to take off her robe and her
sandals. Her son Nicholas went on ahead a little further near the ladder
and dived into the pool. Her husband and she followed. Her husband
sat on the side of the pool because he had bad knee injury and slowly
slipped into the water and swam to the centre of the pool. She climbed
CS(OS) 1298/1982 Page 33 of 64
down the ladder. She stated that when she swam to the centre of the
pool her husband was there and her son was a little further closer to the
edge. She turned around to see if the plaintiff was following her and
saw her at the edge of the pool. She jumped into the water, slipped and
hit her head. She disappeared under the water then she surfaced again
and was lying on her back. She stated that her feet slipped in the pool
and she slipped backwards and she called to her husband ―Sue has been
hurt‖. She stated that her son had seen the accident and was already
swimming towards her and then her husband also swam towards her.
She swam back to the ladder to get out of the pool as quickly as
possible. Her son Nicholas was supporting the plaintiff when her
husband arrived and he helped to support her. A stranger came along,
whom they did not see before or after, who helped in lifting the
plaintiff out of the pool very-very carefully. She stated that thereafter
the manager of the hotel and a doctor arrived. The doctor said that she
had a concussion and that there was no serious injury to the top of her
head and he suggested that she be put in a car and taken to a hospital
for observation overnight. She was distressed and she was sitting
beside her daughter at the pool and the cement was very hot because it
was an extremely hot day. She tried to sprinkle water over the plaintiff
so that she did not burn on the concrete. She enquired from the
plaintiff as to whether she was alright and the plaintiff stated ―my
CS(OS) 1298/1982 Page 34 of 64
hands and my legs are going numb. They are tingling and going
numb‖. Mrs P. J. Beer further stated that the hotel manager suggested
that the plaintiff be taken to hospital in a hotel car but her husband
objected very strongly and said that she must go in an ambulance.
45. From the testimony of the plaintiff’s mother PW19 Mrs P. J. Beer
also, the plaintiff’s version of the manner in which she suffered the
injury is fully corroborated. Although, all the three witnesses namely,
the plaintiff, her father Mr G. L. Beer and her mother Mrs P. J. Beer
were subjected to lengthy cross-examination, nothing has been elicited
from these witnesses in the course of such cross-examination so as to
cast any doubt on their testimonies with regard to the exact manner in
which the incident occurred.
It may be noted that in the written statement, the defendant did
not plead that the plaintiff had dived into the pool. Yet, in the course of
cross-examining the witnesses and in the course of arguments, it was
strongly urged on behalf of the defendant that the plaintiff did not jump
into the pool from the shallow end but dived into the pool. It is an
established principle that unless a fact is pleaded, no amount of
evidence led in respect of that alleged fact can cure the defect. The
plaintiff’s case that she jumped into the pool at the shallow end and that
her feet slipped on the slippery floor of the pool as a result of which she
CS(OS) 1298/1982 Page 35 of 64
hit her head and sustained injuries is fully supported by the medical
evidence on record. Both PW4 Dr J.A. Smith and PW22 Dr Arjun
Dass Sehgal have opined that the injury caused to the plaintiff was
largely a flexion injury and not a compression injury, which would
have resulted in a burst fracture. These opinions are clearly in
corroboration of the testimonies of the plaintiff, her father Mr G. L.
Beer and her mother Mrs P. J. Beer. It has come in evidence that a
flexion injury of the kind suffered by the plaintiff could not have been
caused by the head hitting the floor of the pool as a result of a vertical
or near vertical dive. In that eventuality the injury would have been a
burst fracture or a serious compression injury. It would not have been a
flexion injury. In the present case the evidence indicates that the injury
was a flexion injury caused by the sudden forward hinging of the head
on account of the head hitting the wall of the swimming pool. This
injury is entirely consistent with the plaintiff’s case and is completely
contraindicated if the version of the defendant, of the plaintiff diving
into the pool and thereafter hitting the head on the floor of the pool, is
to be accepted. Clearly, the cause of injury was as narrated by the
plaintiff, that is, by jumping into the pool and not as suggested by the
learned counsel for the defendant, that is, by diving. The counsel for
the defendant was at pains to cross-examine the doctors and
particularly PW4 Dr J. A. Smith and PW22 Dr Arjun Dass Sehgal with
CS(OS) 1298/1982 Page 36 of 64
regard to the injury caused to the plaintiff being a compression injury
or a flexion injury. According to the defendant, the plaintiff suffered a
burst fracture and a compression injury which was consistent with the
plaintiff having dived into the pool and hit her head on the floor of the
pool. On the other hand, the plaintiff’s case was that she had suffered a
flexion injury where the head hinges forward with great force.
46. I have already set out what PW4 Dr J. A. Smith stated in his
testimony. He categorically stated that the injury caused to the plaintiff
was not a burst fracture which is indicative of a compression injury.
According to PW4 Dr J. A Smith, a burst fracture would be caused
when a weight falls on the body or the body with weight falls to the
ground in a vertical position. He stated that when a body strikes the
object in an inclined angle and not at a 90 degree angle, it would cause
a combination of flexion along with compression. The said witness
stated that the injury in the present case was certainly one of flexion.
He, however, clarified that when we know what happens to the anterior
part of the vertebrae in a flexion injury then, there is a degree of
compression occurring there. He, however, reiterated that the fracture
in the instant case was a flexion fracture. The injury in the present case
was described by the said witness as one where the head moves
CS(OS) 1298/1982 Page 37 of 64
forward and the chin almost touches the chest. This is what is known
as forward hinging.
47. As mentioned above, both Dr J. A. Smith and Dr Arjun Dass
Sehgal were subjected to extensive cross-examination on the point as to
whether the injury was a flexion injury or a compression injury. From
the testimonies of both these witnesses, it is apparent that they have not
been shaken from their stand that the injury was a flexion injury caused
by forward hinging of the head. In such a situation, the hypothesis of
the plaintiff having dived into the pool is clearly contraindicated.
48. In an attempt to support the hypothesis that the plaintiff dived
into the pool, the defendant also produced DW2 Mr Balram Verma in
the witness box. DW2 Mr Balram Verma was stated to have been
posted at Akbar Hotel as a lifeguard. According to him, he had joined
ITDC on 10.03.1978. Mr Verma stated that on 05.05.1978 he was
present at the swimming pool in his lifeguard gear and the manager was
sitting with him. One elderly man accompanied by two children, one
of whom was a boy and the other was a girl, came to the pool, in a
playful mood and they kept their towels near the very first umbrella on
the pool. The boy and the girl were playing the game of catching each
other. While doing so, the girl suddenly took a vertical dive in the
shallow portion of the swimming pool. According to this witness, he
CS(OS) 1298/1982 Page 38 of 64
immediately ran on seeing this incident and the other guests also
shouted. The other guests, who were from Aeroflot, also helped him in
holding the girl. According to him, he placed the girl on the floor on
the edge of the pool and he found that there was a bump on the middle
of the head of that girl and it had become reddish. He stated that he
obtained ice and bandage from his office where first-aid articles were
kept and then he applied ice and bandage on the head of that girl. He
stated that he as well as the girl’s father asked her to shake her leg but
she was not able to move her leg and she started weeping.
49. If this witness is to be believed, the plaintiff took a vertical dive
in the shallow portion of the swimming pool. In his cross-examination,
he was asked as to what was the distance between the wall of the pool
and the place on the floor where the girl struck her head. His answer
was — ―two feet‖. I am straightaway inclined to agree with Mr Madan
Bhatia, the learned senior counsel who appeared on behalf of the
plaintiff, that this would be a virtual impossibility. From the edge of a
pool at the shallow end where the water was only 2′ 6” to 2′ 9” deep, it
would be impossible for any person to take a vertical dive and hit his or
her head within two feet of the wall. According to the evidence on
record, the plaintiff was about 5′ 6” in height. If she was standing on
the edge of the pool in a stationary position, she would probably have
to jump six feet into the air to enable her body to turn so that it could
CS(OS) 1298/1982 Page 39 of 64
make a vertical impact with the water in the pool. This could not have
been done and in fact was not done as no witness has testified to this.
Apart from that, Mr Verma stated that the girl and boy were running
and they were playing the game of catching each other and it was then
that she took a vertical dive in the shallow portion of the swimming
pool. When a person is in motion, it would be impossible for that
person to have hit his head on the floor of the swimming pool within
two feet of the edge. The momentum would take that person much
ahead. Therefore, the theory propounded by this witness is only to be
stated to be rejected.
50. This witness cannot be believed also because he stated that there
was a bump in the middle of the head of the girl and it had become
reddish. There is no such evidence. Apart from this, he stated that he
had bandaged the head of the girl. There is no corroborative evidence
of this either. He stated that the father of the girl had not entered the
swimming pool and he was near the counter. But, in the written
statement in paragraph 11, it is stated that the parents were at a distance
relaxing in the chairs. Again, this witness states that the plaintiff’s
father was accompanied only by his son and daughter (the plaintiff). In
fact, it was suggested to the witness that Mr Beer was accompanied not
only by his one son and one daughter but also his wife. The witness
stated that this was wrong and he was accompanied only by his son and
CS(OS) 1298/1982 Page 40 of 64
daughter. This statement also contradicts what is stated in the written
statement where it is admitted that the parents were at a distance
relaxing in the chairs. This witness has also stated that the girl had
stretched her hands while diving into the pool. But, again, there is no
injury caused to the hands of the plaintiff. The testimony of this
witness cannot be believed for two reasons. The first being that he is
unreliable and is not telling the truth and the second being that his
version of the incident is practicably not possible.
51. This leaves me to discuss the testimony of DW1 Dr G.G.
Manshramani. This witness has tried to assist the defendant by stating
that the external injury caused to the plaintiff on the head could never
have been caused when a person falls backwards. This witness has
apparently contradicted himself at various places in the course of his
cross-examination. For example, a question was put to him that when a
person dives into the pool and his head hits the bottom of the pool but
his head does not hinge forward, would there still be force of flexion?
He answered–yes. Then a question was put to him what force is
flexion? He answered–when the head hinges forward? So this
witness says in answer to the first question that even when the head
does not hinge forward, there will still be force of flexion and in answer
to the second question, he says that the force of flexion is there when
the head hinges forward. The witness was then asked that if a person
CS(OS) 1298/1982 Page 41 of 64
jumps into the pool, slips and falls backward and his head hits a wall at
the back with great force, his head may suffer both flexion and
compression injuries? To this, the witness answered–it will mainly
be flexion injury. In other words, even from this witness it has been
elicited in cross-examination that the injury caused by jumping and
slipping and then hitting the head on the wall of the pool would be a
flexion injury.
52. However, this witness, according to me, cannot be relied upon
and is an interested witness. He had accompanied the counsel for the
defendant to Australia and even played a role in helping the learned
counsel for the defendant in cross-examining the plaintiff’s witnesses in
Australia. Furthermore, he is not an expert in the sense that he is not
even a surgeon, what to speak of being a neurosurgeon. He has no
experience with regard to spinal injuries and has admitted to only
having taught neurology as a part of medicine and not as a specialty.
He has admitted that he was engaged by ITDC to go to Brisbane,
Australia and had actively assisted the counsel for the defendant.
53. The learned counsel for the defendant drew my attention to the
medical record of the Holy Family Hospital, New Delhi. He submitted
that Exhibit PW19/2 is the MLC pertaining to the plaintiff. The history
indicated in the MLC reads as under:-
CS(OS) 1298/1982 Page 42 of 64
―H/o sustained injury when Pt. dived into swimming pool
at about 6:45 pm today………‖
He then referred to Exhibit PW19/3 which is the case summary and
discharge record, which again indicates the alleged history to be that
the patient sustained injury ―after diving into swimming pool‖. Exhibit
PW19/4 is the history sheet of the plaintiff at Holy Family Hospital,
New Delhi. In this document also it is indicated that the ―patient dived
into pool in Akbar Hotel, hit her head on the floor of the pool and
sustained injury over the head…………‖. Exhibit PW19/6, which is
the consultation record of the same hospital, also indicates ―dived in
swimming pool‖. Exhibit PW19/5, which is part of the consultation
record, again refers to ―diving‖. This noting is apparently signed by
Dr A. D. Sehgal. However, Exhibit PW2/34, which is another
document from the hospital record, indicates that the plaintiff ―jumped
into pool‖. From the aforesaid documents barring Exhibit PW2/34, the
learned counsel for the defendant, submitted that it was apparent that it
was a diving incident and not a jumping incident as alleged by the
plaintiff. However, what is important to remember is that the first
document in the series of documents is Exhibit PW19/2, which is the
MLC which was prepared at the hospital. Dr B.B Middha, who
prepared the said MLC, has not been examined as a witness and,
therefore, it cannot be determined as to who told him about the history
of the patient. All the other documents from the hospital record are
CS(OS) 1298/1982 Page 43 of 64
merely reproductions of what was first recorded in the MLC Exhibit
PW19/2. When the source itself is unclear, these documents would not
be determinative of whether the plaintiff dived into the swimming pool
or jumped into the swimming pool. In fact, Exhibit PW2/34, which is
in Dr Seghal’s hand, records that the plaintiff jumped into the pool. In
cross-examination of Dr Sehgal, this aspect of the matter has not been
questioned. In any event, I agree with the submission made by the
learned counsel for the plaintiff that the exact manner in which the
incident took place, in other words, whether it was the result of a dive
or jump, was not of much consequence to the doctor and they were
concentrating on and were merely concerned in treating the patient.
Even the record of the hospital in Australia, as indicated in Dr Davies’s
report shows the same history as that of having sustained the injury in a
dive. But, that again is merely a reproduction of the hospital record at
Holy Family Hospital. In fact, Dr Davies’s report shows that the injury
is 6‖ long lacerated wound. This is ex facie wrong inasmuch as the
admitted position is that wound on her head was a one inch long
contused lacerated wound. Consequently, not much reliance, if at all,
can be placed on Dr Davies’s report. It is, therefore, clear that the
hospital record referred to above cannot be relied upon to establish as
to whether the plaintiff dived into the pool or jumped into the pool. I
have already indicated that, based upon the testimonies of the plaintiff,
CS(OS) 1298/1982 Page 44 of 64
PW2 Mr G. L. Beer and PW19 Mrs P. J. Beer as well as the evidence
given by the doctors — PW4 Dr J.A Smith and PW22 Dr Arjun Dass
Sehgal, the manner in which the injury was caused, stands established.
The injury was caused by the fact that the plaintiff’s feet slipped on the
floor of the swimming pool when she jumped into the pool in the
shallow end.
54. As a result of the aforesaid discussion, it has been established on
the part of the plaintiff that the cause of injury was the fact that the
plaintiff jumped into the pool at the shallow end and that her feet slid
forward on account of the bottom of the pool being slippery. This
resulted in her head hitting the side of the pool which ultimately
resulted in her becoming a quadriplegic. The theory and hypothesis of
diving into the pool which had been put forward by the learned counsel
for the defendant, both in the course of cross-examination of the
plaintiff’s witnesses as well as by the defendant’s witnesses and in the
course of arguments before this Court, is clearly not established. It is
not established on account of the evidence on record nor is it
established on account of probabilities. The plaintiff, admittedly, was
an expert swimmer. She would not have dived into the pool vertically
downwards at the shallow end knowing the water to be only 2-1/2 to 3
feet deep. In any case, even if she had dived into the pool, she could
have avoided impact on her head by pushing away with her hands
CS(OS) 1298/1982 Page 45 of 64
which are normally extended in the case of a dive. There is evidence of
her swimming coach to indicate that she was well trained in all
swimming manoeuvres which include diving and if she were to dive,
she would have adopted the correct posture, namely, with the hands
extended ahead to protect from the impact of the water. All these
factors clearly establish that the assertion made by the plaintiff with
regard to the manner in which the injury was caused, stands established
and the hypothesis propounded by the defendant stands disproved.
Were the tiles slippery and the pool not properly maintained?
55. The plaintiff’s case is that glazed tiles were used in the
swimming pool. This fact has not been denied by the defendant. The
plaintiff’s case further is that not only were glazed tiles used in the
swimming pool but that those tiles had become slippery on account of
slime accumulating thereon as a result of algae growth because the pool
was not properly maintained by the defendant. The defendant, however,
has denied that the pool was not properly maintained. The defendant
also denied that the tiles were slippery.
56. Certain photographs of the pool were taken after some months
and they have been placed on record. Those photographs were taken in
the winter months when the pool was not operational and there was no
water in it. There is no doubt that those photographs do indicate
accumulation of dirt in the grouting which could possibly include algae
CS(OS) 1298/1982 Page 46 of 64
also. But, these photographs cannot be used by the plaintiff inasmuch
as they do not pertain to the period when the pool was operational, that
is, during the summer months. The incident took place on 05.05.1978
when the pool was fully operational. The question of the pool floor
being slippery on account of poor maintenance has to be examined
keeping this in mind.
57. PW14 K. R. Dobson has been brought to the witness box by the
plaintiff as an expert on swimming pool maintenance. The said witness
has a Bachelor of Applied Sciences degree in Applied Chemistry from
the Queensland Institute of Technology. He is also a member of the
Royal Australian Chemical Institute and a member of Clean Air
Society of Australia. In his role as Chief Chemist of the Department of
Chemical Engineering at the University, he stated that he acts as a
consultant for the university in a number of enquiries for the past 13
years or so. He stated that in connection with problems that people
meet in maintaining swimming pools, he has been consulted.
According to him, the more common occurrence in maintenance of the
swimming pool is algal growth or growth of organisms in the pool. He
stated that his main area of specialization was the manner in which
certain chemicals affect algal growth in pools. According to him, algal
growth would occur in almost all pools at some level. He stated that
there are a number of techniques for maintenance of pools and the most
CS(OS) 1298/1982 Page 47 of 64
common technique is that of the maintenance of levels of hypochloride
or chlorine. He further submitted that for proper maintenance of a
pool, the growth of the algal material is not per se checked but what is
checked are the levels of chemicals which are maintained in the pool to
keep the algal level at bay.
58. PW14 Mr K. R. Dobson submitted that there are three aspects
which are associated with the maintenance of a pool to keep algal
growth at bay. The first is the measurement and maintenance of
chlorine levels in the pool. The second is filtration of water. Most
swimming pools have a pump and a filter associated with it to filter out
any growth or particles that may be present in the water. The third is
brushing of the surface of the pool. It is at the surfaces where algal
growth occurs.
59. The said witness further stated that it was possible for algal
growth to occur in a pool even though the water might be clear. He
stated that in the early stages of algal growth, when the algae are first
starting to grow on the surface of the pool, the water will still appear
clear whilst the algae are growing. Those parameters are usually met if
the chlorine levels drop to a low level. This can either happen because
of allowing the chlorine levels to drop, or in some cases in warm
climates there is a cycle in the levels of chlorine associated with the
CS(OS) 1298/1982 Page 48 of 64
maintenance of the pool. He further stated that this might also happen
on account of inadequate brushing of the surface of the pool.
Mr Dobson reiterated that the three issues associated with the
maintenance of the swimming pool are maintenance of chlorine level,
filtration and brushing. The correct maintenance of a swimming pool
incorporates the combination of all three of those techniques and failure
to observe the correct maintenance procedures in all those three areas
could lead to problems with algal growth.
60. He also submitted that chlorine chemistry is complex and that
one of the parameters affecting the maintenance of levels of chlorine in
a swimming pool, is temperature. The higher the temperature the faster
chlorine will be consumed. He stated that at temperatures greater than
25°C, it would be strongly advisable that chlorine levels be checked
twice daily. The witness further stated that the most common colour of
algae is green. Though, in various cases the colour can be darker
almost to a black colour and the intensity of the colour can vary with
the strain of algal growth that is present and the severity of the growth.
Importantly, he stated that in many cases in the early stages of algal
growth, it may not be in fact visible through the water. He also stated
that, as a rule, at the shallow end algal growth will generally occur
before it will in the deeper end.
CS(OS) 1298/1982 Page 49 of 64
61. The testimony of Mr Lindsay Ian Sly also indicates that the algal
growth takes place because of sunlight. Mr G. L. McDonald stated that
ceramic tiles were inherently prone to accidents as they are slippery and
growth of algae would increase the possibility of slipping. He also
stated that usually glazed tiles are not used for Olympic size pools.
62. From the above evidence, it is apparent that glazed tiles are
inherently slippery and this would be further accentuated by the
presence of algal material. The growth of algae in the swimming pool
occurs first in the shallow end and later at the deep end. The growth of
algae is controlled by proper pool maintenance procedures. The
procedures include: (i) maintaining a proper chlorine level; (ii)
filtration of water; and (iii) brushing of the pool surface. If there is any
deficiency in any of the three measures, then growth of algae would
result particularly in swimming pools which are exposed to bright
sunlight such as in India in the month of May. It is also indicated that
in the initial stages when there is growth of algae in the swimming
pool, it may not even be visible and the water may be clear but the
surface of the swimming pool which includes the tiles on the floor
would become slippery. Mr K. R. Dobson stated that initially it is the
grouting area which is first affected by the algal growth. It is important
to remember that Mr Dobson said that in temperatures which exceed
CS(OS) 1298/1982 Page 50 of 64
25°C, the chlorine level should be checked at least twice a day because
chlorine gets consumed much faster in higher temperatures.
63. All these factors coupled with the testimony of the plaintiff and
that of her father Mr G.L. Beer and her mother Mrs P.J. Beer, point in
the direction of the tiles in the floor of the swimming pool being
slippery on account of improper maintenance of the swimming pool.
This could, of course, be countered by the defendant by leading
evidence to establish and show that the pool was properly maintained.
64. The witness produced on behalf of the defendant to testify as to
the maintenance of the pool was DW2 Mr Balram Verma. I have
already indicated above that this witness is not reliable. However,
assuming that what he says is correct, let me examine as to whether his
testimony reveals that the pool was properly maintained. DW2
Mr Balram Verma stated that he was appointed as a lifeguard at Akbar
Hotel and he holds a degree in physical education. He stated that the
duty of a lifeguard at Akbar Hotel was first to see on arrival at the pool
that the pool was clean. Thereafter, his duty was to sit there to ensure
that the life of any guest swimming in the pool was not at risk. He
stated that the procedure for cleaning of the pool is that in the evening
bleaching powder and alum are put into the water which makes the dust
settle at the bottom of the pool. Next day, in the morning, the brush
CS(OS) 1298/1982 Page 51 of 64
which is attached to the suction cleans the dust on the bottom of the
pool and the dirty water is pumped out of the pool. The housemen also
mop the entire area around the swimming pool starting from the change
room before any guest is allowed to enter the swimming pool. He
stated that the board at the swimming pool displays ―pool closed‖ in the
morning and the same is removed only after the cleaning has been done
and after he has checked the pool. He further stated that the engineer of
the hotel had given him strips of paper in order to check the chemicals
in the water of the pool. The strip of paper had a number of colours on
its upper part and lower part. After dipping the same into the water of
the pool, he used to match the colour of the strip with the colours
shown on the upper part of the strip. In case the colour of the paper
strip dipped into the water of the pool matched the colour at serial No.
7 or 8 of the upper part of the strip, it implied that the water had been
properly chlorinated. However, this witness in his cross-examination
does not appear to know anything about algae. When he was asked as
to under what circumstances algae get deposited on the floor of the
swimming pool, he stated that he did not know. With regard to the
photographs which were shown to him, which clearly indicate algae
growth and deposits, the said witness stated that the photographs were
taken when the pool had been closed and in winter time.
CS(OS) 1298/1982 Page 52 of 64
65. This witness, I have already indicated, cannot be believed. In
any event, he does not have any specialized knowledge with regard to
management of algal growth in the swimming pool. The fact of the
matter is that there is evidence to indicate that the floor of the
swimming pool was slippery and it is because of that the plaintiff
suffered the injury. The floor of the swimming pool would not have
been slippery had the pool been properly maintained. It is at this
juncture that the principle of res ipsa loquitur can also be employed.
That is a rule of evidence which is employed when there is otherwise
no direct material on a particular aspect of the matter. Since the floor
of the swimming pool was not examined on the date of the incident
itself and samples were not taken on that date, there is no direct
evidence to indicate that there was algal growth in the pool or that there
was other slimy material on the floor of the pool. It is in circumstances
such as this that the principle of res ipsa loquitur is applied as a rule of
evidence, because the things speak for themselves. Res ipsa loquitur is
a Latin phrase which is defined in Black’s Law Dictionary in the
following words: ―The thing speaks for itself.‖ The doctrine of res ipsa
loquitur is described in detail in a decision of this Court in Klaus
Mittelbachert v East India Hotels Ltd : 65 (1997) DLT 428, which
reads as under:-
CS(OS) 1298/1982 Page 53 of 64
―Under the doctrine of res ipsa loquitur a plaintiff
establishes a prima facie case of negligence where (1)
it is not possible for him to prove precisely what was
the relevant act or omission which set in train the
events leading to the accident, and (2) on the
evidence as it stands at the relevant time it is more
likely than not that the effective cause of the accident
was some act or omission of the defendant or of
someone for whom the defendant is responsible,
which act or omission constitutes a failure to take
proper care for the plaintiff’s safety. There must be
reasonable evidence of negligence. However, where
the thing which causes the accident is shown to be
under the management of the defendant or his
employees, and the accident is such as in the ordinary
course of things does not happen if those who have
the management use proper care, it affords
reasonable evidence, in the absence of explanation by
the defendant, that the accident arose from want of
care. Three conditions must be satisfied to attract
applicability of res ipsa loquitur: (i) the accident
must be of a kind which does not ordinarily occur in
the absence of someone’s negligence; (ii) it must be
caused by an agency or instrumentality within the
exclusive control of the defendant; (iii) it must not
have been due to any voluntary action or contribution
on the part of the plaintiff. (See Ratanlal & Dhirajlal
on Law of Torts , edited by Justice G.P. Singh, 22nd
edition 1992, pp 499-501 and the Law of Negligence
by Dr Chakraborti, 1996 edition, pp 191-192.)‖In the light of the aforesaid decision, it needs to be examined as to
whether the above conditions apply to the present case. First of all, it
has to be determined as to whether the accident is of a kind which does
not ordinarily occur in the absence of someone’s negligence. It is
common knowledge that people and most particularly younger persons
jump into the swimming pool. Unless and until there is some
CS(OS) 1298/1982 Page 54 of 64
negligence, the injury of the kind indicated in the present case wouldnot ordinarily occur. When one jumps into the swimming pool in the
shallow end, one does not expect that on the feet reaching the floor of
the swimming pool, the same would slip on account of the floor being
slippery. Ordinarily, when one jumps into the swimming pool, at the
shallow end, the feet do hit the floor of the pool but they remain firmly
grounded. The incident of the kind involved in the present case could
only occur on account of the slippery floor. This takes me to the
second aspect and that is that the accident must have been caused by an
agency or instrumentality within the exclusive control of the defendant.
The defendant was entirely responsible for the maintenance and
operation of the same and therefore this condition is also satisfied. The
third condition is that the accident must not have been caused by any
voluntary action or contribution on the part of the plaintiff. Here,
again, I find that there was no contributory negligence on the part of the
plaintiff. The plaintiff merely jumped into the swimming pool in the
shallow end as she may have done on hundreds of occasions being a
person more than accustomed to swimming and one who spent many
hundreds of hours in and around the swimming pool.
66. It is, therefore, clear that all the three conditions necessary for
application of the doctrine of res ipsa loquitur stand satisfied.
CS(OS) 1298/1982 Page 55 of 64
67. Once this happens, the burden shifts to the defendant to rebut the
evidence of negligence. In Municipal Corporation of Delhi v
Subhagwanti & Ors: AIR 1966 SC 1750, the Supreme Court described
the shifting of the burden, relying on Halsbury’s Laws of England,
2nd Ed., Vol. 23, as under:-
―An exception to the general rule that the burden of
proof of the alleged negligence is in the first instance
on the plaintiff occurs wherever the facts already
established are such that the proper and natural
inference immediately arising from them is that the
injury complained of was caused by the defendant’s
negligence, or where the event charged as negligence
‗tells its own story’ of negligence on the part of the
defendant, the story so told being clear and
unambiguous. To these cases the maxim res ipsa
loquitur applies. Where the doctrine applies, a
presumption of fault is raised against the defendant,
which if he is to succeed in his defence, must be
overcome by contrary evidence, the burden on the
defendant being to show how the act complained of
could reasonably happen without negligence on his
part.‖The defendant has not provided any plausible explanation as to how the
plaintiff could have suffered the injury that she did. Consequently, the
defendant has failed to meet its burden of proof in showing as to how
the plaintiff came to be injured without their negligence. Such burden
not having been discharged, by employing the doctrine of res ipsa
loquitur, it is clear that it was on account of the defendant’s negligence
that the floor of the swimming pool was slippery on account of which
the injury was sustained by the plaintiff.
CS(OS) 1298/1982 Page 56 of 64
68. In view of the foregoing discussion, issues No. 3-8 are decided in
favour of the plaintiff and against the defendant.
Issue No. 9:
69. This issue is concerned with the computation of the damages to
which the plaintiff is entitled. The plaintiff has claimed a decree in the
sum of ` 2,00,00,000/- (rupees two crores) along with interest at the
rate of 18% per annum on the said amount from the date of presentation
of the plaint till its realization in favour of the plaintiff and against the
defendant. The said amount of ` 2,00,00,000/- has been claimed by the
plaintiff on the following basis:-
i) Expenses incurred by the plaintiff on
medical treatment and care in India
and Australia - ` 20,00,000.00
ii) Damages on account of physical pain,
mental anguish and psychological
anguish and loss of education - ` 50,00,000.00
iii) Damages on account of loss of - ` 1,30,00,000.00
earnings for the rest of her life
Total - ` 2,00,00,000.00
Insofar as the expenses incurred on the medical treatment and care in
India and Australia are concerned, certain bills and receipts have been
produced in evidence. They are as follows:-
CS(OS) 1298/1982 Page 57 of 64
Sl. No. Exhibit Detail Amount
No. AUD /`
1. PW18/2 Medical aids and $ 814.50
equipment supplied to
plaintiff through
Queensland Department of
Health- to be reimbursed
2. PW18/1 - Do - $ 1011.50
3. PW2/3 Dr B. N Chopra ` 60/-
4. PW2/4 Dr B. Ramamurthi ` 4250/-
5. PW2/8 Holy Family Hospital No. ` 4042.50
53121
6. PW2/10 - Do - ` 2847.25
Receipt No. 53627
7. PW2/11 - Do - ` 2459.60
Receipt No. 53907
8. PW2/12 - Do - ` 2285
Receipt dated 13.6.78
9. PW2/14 - Do - ` 90.50
10. PW2/16 Receipt dated 22.08.78 ` 2925
11. PW2/17 Receipt dated 22.08.78 ` 2925
12. PW2/19 Dr Arjun Sehgal ` 10500
13. PW2/20 Dr Arjun Sehgal ` 12000
14. PW2/22 Dr Arjun Sehgal ` 13916
CS(OS) 1298/1982 Page 58 of 64
15. PW2/24 Dr (Mrs) Sehgal ` 8000
16. PW2/25 Ticket (Airline charges) ` 7134
17. PW2/26 Chemist bill dated 3.6.78 ` 39.20
18. PW2/27 Medical equipment dated ` 435
7.6.78
19. PW2/28 Hired refrigerator for ` 340
hospital room on 10.5.78
20. PW2/29 Accommodation and $ 57.80
meals for Dr Arjun Sehgal
in Brisbane
21. PW2/30 Ambulance service on $ 50
21.7.78
22. PW2/31 - Do - $ 50
23. PW2/32 Ambulance service on $ 30
26.6.78
24. PW2/35 Various receipts for $ 3500 (approx.)
physiotherapy and
Chiropractor charges in
1978 and 1979.
TOTAL in Indian rupees ` 125000 (approx.)
[after converting AUD [` 74249.05 +
into INR at the exchange $ 5513.80 (=` 49,624.2)
rate of 1 AUD = ` 9 = ` 123873.25]
(approx.) in 1982
The total of which comes to approximately ` 1,25,000/-. It may be
noted that the amounts paid in Australian Dollars have been converted
to Indian rupees at the exchange rate of ` 9 (approximately) = 1
Australian Dollar (AUD), which is the equivalent exchange rate
CS(OS) 1298/1982 Page 59 of 64
prevalent in 1982. It may also be pointed out that the payment for
Australian Dollars have been made during the year 1979-1984 and,
therefore, the rate as applicable in the year 1982 has been taken as an
average. However, the amount claimed in the plaint under the head of
expenses incurred for medical treatment and care in India and Australia
is to the extent of ` 20,00,000/- (rupees twenty lacs). I may also note
that PW1 (S. L. Beer) as well as PW2 (Mr G. L. Beer) have deposed
with regard to the expenses incurred by them. PW2 Mr G. L. Beer has
stated that he incurred medical expenses of Holy Family Hospital as
well as of Dr Sehgal and the attendant charges. He stated that Dr
Sehgal’s air fare to and fro Australia was also paid by him and he had
to incur the additional expense of seats in Thai International Airways
because of the stretcher on which his daughter (the plaintiff) was to be
transported from New Delhi to Australia. There were other expenses
attached to the transfer in Sydney and their stay there as well as
ambulance transport. Expenses were incurred on account of visiting
English Neurosurgeon, Dr Wilson and other expenses for doctor /
Chiropractor in Brisbane. He also had to make several alterations to his
house, such as alteration to the toilet, widening of doorways, placing of
protective covers over sections of carpet because of the wheelchair
which was used by his daughter. He also had to incur the expense of
building all the physiotherapy equipment and of prosthetic appliances.
CS(OS) 1298/1982 Page 60 of 64
He also had to establish a specialized carport and had to construct
ramps so that the plaintiff could enter and exit the car. Because of the
treatment, which his daughter was receiving, he had to maintain
himself and his son in Brisbane and his wife and daughter in
Melbourne. He stated that the expenditure incurred by him up to 1982,
when he filed the suit, on medical expenditure under various heads and
other expenditure for the care of the plaintiff would amount to
approximately Australian Dollars 1,50,000. Thus, according to the
testimony of PW2 (Mr G. L. Beer), an amount of approximately
` 13,50,000/- (as per the said exchange rate of ` 9 = 1 AUD) was
incurred under the head of expenses incurred for medical treatment and
care in India and Australia. However, I find that the amount mentioned
in the bills and receipts, which have been exhibited, is only `1,25,000/-.
Considering the fact that not all bills and receipts may have been kept, I
feel that the expenditure incurred under the head medical treatment and
care in India and Australia ought to be assessed at about ` 5,00,000/-
(rupees five lacs) instead of what is claimed in the plaint.
70. With regard to the quantification of damages on account of
physical pain, mental anguish and psychological anguish as well as loss
of education, I feel that the figure of ` 50,00,000/- (rupees fifty lacs),
CS(OS) 1298/1982 Page 61 of 64
which has been quantified and claimed by the plaintiff, is a reasonable
figure and, therefore, the same ought to be allowed.
71. I am left with quantifying the damages on account of loss of
earnings for the rest of her life. It has come in the evidence of both the
plaintiff as PW1 and her father Mr G. L. Beer (PW2) that under normal
circumstances, the plaintiff would have entered the workforce at the
age of about 21 years. However, because of the incident, her education
was derailed, which she was able to complete much later and that she
started work at the age of 26 years. Thus, there was a clear loss of
income for five years between the ages 21 and 26. Apart from this, the
plaintiff has deposed that on the date of her deposition in 1991 she was
earning about Australian Dollars 30,000 per annum. It has also come
in evidence that had she not suffered the severe handicap of being a
quadriplegic, her income would have been between Australian Dollars
45,000 to 50,000 per annum. It has also been stated in her deposition
that because of the fact that she was a quadriplegic, her work life
would, in all likelihood, not extend beyond the age of 45 years whereas,
normally, she would have worked up to the age of 65 years. Exhibit
PW6/1 is a life expectancy certificate which indicates that in Australia
a female born on 24.01.1961 would be expected to live up to the age of
approximately 80 years. This means that once she retires from work,
she would have to spend many years on pension alone which would,
CS(OS) 1298/1982 Page 62 of 64
according to her testimony, not be sufficient to enable her to live
independently because as per her testimony, she would also require
somebody to provide house-keeping services as well have a live-in
attendant to see to her day-to-day needs. Consequently, the figure of
` 1,30,00,000/- was claimed as damages on account of loss of earnings
for the rest of her life.
72. Assuming that on an average the plaintiff would earn 45,000
Australian Dollars per annum throughout her period of employment,
her total earnings, under normal circumstances, would have been
45,000 x 44 = 19,80,000 Australian Dollars. The period of 44 years
has been taken on the assumption that she would start work at the age
of 21 years and continue to work, under normal circumstances, till the
age of 65 years. She has stated that she was earning 30,000 Australian
Dollars and that she has been working since the age of 26 years and
would be expected to continue to work till she attained the age of 45
years. Thus, during these 19 years, she would have earned 19 x 30,000
= 5,70,000 Australian Dollars. Consequently, the loss of earnings
would be 14,10,000 Australian Dollars (19,80,000 – 5,70,000). The
said amount converted into Indian rupees at the exchange rate of ` 9 = 1
AUD as prevalent in 1982 would amount to ` 1,26,90,000/- (rounded
off to ` 1,27,00,000/-). This amount very closely matches the amount
of damages of ` 1,30,00,000/- (rupees one crore thirty lacs) which the
CS(OS) 1298/1982 Page 63 of 64
plaintiff has claimed in the present suit. In the result, the plaintiff is
entitled to – (i) ` 5,00,000/- (rupees five lacs) on account of expenses
incurred towards medical treatment and care in India and Australia; (ii)
` 50,00,000/- (rupees fifty lacs) towards damages on account of
physical pain, mental anguish and psychological anguish and loss of
education; and (iii) ` 1,27,00,000/- (rupees one crore twenty seven lacs)
on account of damages for loss of earnings for the rest of her life. The
total sum of which comes to ` 1,82,00,000/- (rupees one crore eighty
two lacs) as on the date of the filing of the suit.
73. Thus, the plaintiff is entitled to a decree in the sum of
` 1,82,00,000/- (rupees one crore eighty two lacs) along with simple
interest thereon at the rate of 6% per annum w.e.f 22.01.1982 till the
date of the decree and future simple interest on the said amount at the
rate of 10% per annum till its realization. It is decreed accordingly.
The formal decree be drawn up at the earliest.
BADAR DURREZ AHMED
(JUDGE)
MARCH 03, 2011
SR
CS(OS) 1298/1982 Page 64 of 64