{"id":199811,"date":"2011-03-03T00:00:00","date_gmt":"2011-03-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/susan-leigh-beer-vs-india-tourism-development-on-3-march-2011"},"modified":"2018-09-20T11:25:13","modified_gmt":"2018-09-20T05:55:13","slug":"susan-leigh-beer-vs-india-tourism-development-on-3-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/susan-leigh-beer-vs-india-tourism-development-on-3-march-2011","title":{"rendered":"Susan Leigh Beer vs India Tourism Development … on 3 March, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Susan Leigh Beer vs India Tourism Development … on 3 March, 2011<\/div>\n
Author: Badar Durrez Ahmed<\/div>\n
           THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                                 Judgment delivered on: 03.03.2011\n\n+                          CS(OS) 1298\/1982\n\nSUSAN LEIGH BEER                                              ... Plaintiff\n\n                                   - versus -\n\nINDIA TOURISM DEVELOPMENT\nCORPORATION LTD                                               ... Defendant\n\nAdvocates who appeared in this case:\nFor the Plaintiff         : Mr Madan Bhatia, Sr Advocate with Mr Anup\n                            Kumar Sinha\nFor the Defendant         : Mr K. T. S. Tulsi, Sr Advocate with Mr Amitabh\n                            Marwah, Mr R. S. Mathur and Ms Evneet Uppal\n\nCORAM:-\nHON'BLE MR JUSTICE BADAR DURREZ AHMED\n\n     1.<\/pre>\n
    Whether Reporters of local papers may be allowed to
\n           see the judgment?                                                  YES\n<\/p>\n
     2.    To be referred to the Reporter or not?                             YES<\/p>\n
     3.    Whether the judgment should be reported in Digest?                 YES<\/p>\n
BADAR DURREZ AHMED, J<\/p>\n
1.        The plaintiff has prayed for a decree of     `   2,00,00,000\/- (rupees<\/p>\n
two crores) by way of damages as also interest at the rate of 18% p.a.<\/p>\n
on the said amount from the date of presentation of the plaint till actual<\/p>\n
payment. The plaintiff has made the said claim on the basis of an<\/p>\n
incident which happened on 05.05.1978 in the swimming pool of<\/p>\n
Akbar Hotel which was managed and maintained by the defendant —<\/p>\n
CS(OS) 1298\/1982                                                    Page 1 of 64<\/span>
\n India Tourism Development Corporation Limited. The plaintiff, who<\/p>\n
was staying in the said hotel along with her parents and brother, was<\/p>\n
injured in the said swimming pool as a result of which she became a<\/p>\n
quadriplegic. According to the plaintiff, the injury which had been<\/p>\n
caused to her was on account of the negligence on the part of the<\/p>\n
defendant in the maintenance of the swimming pool. Insofar as the<\/p>\n
defendant is concerned, while the fact that the plaintiff received the<\/p>\n
injury on 05.05.1978 in the said swimming pool is not denied, it has<\/p>\n
been contended that the injury was a result of the plaintiff’s own<\/p>\n
negligence and the defendant cannot be held liable for the same.<\/p>\n
2.     Briefly put, the case hinges upon three facets. The first being that<\/p>\n
according to the plaintiff the injury was caused when she jumped into<\/p>\n
the swimming pool at the shallow end and her feet slipped on the tiled<\/p>\n
floor of the swimming pool. As a result, she hit her head on the vertical<\/p>\n
wall of the swimming pool and incurred the injury which led to her<\/p>\n
becoming a quadriplegic. On the other hand, the defendant contends<\/p>\n
that the plaintiff received the injury as a result of diving at the shallow<\/p>\n
end and not as a result of jumping. Consequently, no negligence could<\/p>\n
be attributed to the defendant. The second facet, which is connected<\/p>\n
with the first, is the issue as to whether the tiles of the floor of the<\/p>\n
swimming pool were slippery because of algae formation? It is the<\/p>\n
plaintiff’s case that they were and, therefore, there was clear negligence<\/p>\n
CS(OS) 1298\/1982                                               Page 2 of 64<\/span>
\n on the part of the defendant inasmuch as the swimming pool had not<\/p>\n
been properly maintained and kept safe for the residents of the hotel.<\/p>\n
The defendant, on the other hand, contended that the swimming pool<\/p>\n
was properly maintained and that, in any event, the injury which<\/p>\n
resulted was because of the plaintiff diving into the pool and not<\/p>\n
because of her jumping as suggested by the plaintiff. The third facet is<\/p>\n
that, in case there is a finding in favour of the plaintiff that the injury<\/p>\n
caused to her was because of the defendant’s negligence, the quantum<\/p>\n
of compensation is to be determined. These are the broad parameters<\/p>\n
of this case.\n<\/p>\n
\nAverments in the Plaint:\n<\/p>\n
3.     In the plaint, it is alleged that in May, 1978, the plaintiff was on<\/p>\n
vacation in India along with her parents and stayed in Akbar hotel<\/p>\n
situated at New Delhi which was being run and managed by the<\/p>\n
defendant. On 05.05.1978, during her stay in the hotel, the plaintiff<\/p>\n
went to the swimming pool at about 5:15 pm for a swim. It is stated<\/p>\n
that the plaintiff was an experienced swimmer, having been a<\/p>\n
Queensland (Australia) underage champion and was also a member of<\/p>\n
the Queensland Women’s Water Polo Team for a number of years. It is<\/p>\n
averred that in the beginning of 1978, the plaintiff had also been invited<\/p>\n
to join the Australian Women’s Water Polo Team and was expected to<\/p>\n
travel to Germany with the Australian Team in August, 1979.<\/p>\n
CS(OS) 1298\/1982                                               Page 3 of 64<\/span>\n<\/p>\n
 4.      On the fateful day, that is, on 05.05.1978, at about 5:15 pm, the<\/p>\n
plaintiff jumped into the swimming pool from the shallow end,<\/p>\n
opposite the diving board. According to the plaint, the plaintiff had<\/p>\n
reason to believe that the bottom of the pool was not slippery and had<\/p>\n
been kept clean of all slimy material which otherwise accumulates if<\/p>\n
the pool is not properly cleaned. According to the plaintiff, it is an<\/p>\n
implied representation by the owner of the swimming pool that the<\/p>\n
floor of the pool is not slippery and is safe for persons using the pool to<\/p>\n
stand on the floor of the pool without slipping.        According to the<\/p>\n
plaintiff, the defendant had been extremely negligent in covering the<\/p>\n
floor of the pool with glazed tiles which were very slippery and also in<\/p>\n
not cleaning and maintaining the floor sufficiently, resulting in the<\/p>\n
growth and accumulation of slime on the tiles. Because of this, as soon<\/p>\n
as the plaintiff jumped into the water and her feet touched the floor of<\/p>\n
the pool, they slipped, resulting in loss of control by the plaintiff and<\/p>\n
the plaintiff fell backwards and her head hit against the wall of the<\/p>\n
pool.\n<\/p>\n<\/p>\n
5.      It is further averred that as a result of the aforesaid fall, the<\/p>\n
plaintiff suffered serious head and back injuries and was unable to<\/p>\n
swim out of the pool. The plaintiff’s father and brother sensing that the<\/p>\n
plaintiff had been injured and on noticing blood in the water,<\/p>\n
immediately swam to the plaintiff’s assistance and lifted her out of the<\/p>\n
CS(OS) 1298\/1982                                              Page 4 of 64<\/span>
\n pool carefully. Subsequently, the plaintiff was removed by ambulance<\/p>\n
to the Holy Family Hospital, Okhla, New Delhi where she was treated<\/p>\n
by Dr Arjun Sehgal and Professor Ramamurthi, who had come from<\/p>\n
Madras.      As per the plaint, the said Dr Sehgal diagnosed that the<\/p>\n
plaintiff had suffered a head injury with fracture dislocation of the<\/p>\n
cervical dorsal column causing paralysis of the four limbs and loss of<\/p>\n
sphincter control. It is stated that Dr Sehgal later advised that the<\/p>\n
plaintiff should be transported to her home in Brisbane, Australia.<\/p>\n
After a prolonged hospitalization in Delhi, accompanied by a<\/p>\n
neurosurgeon and another doctor, the plaintiff was flown to Australia.<\/p>\n
From 16.06.1978 to 27.10.1978 the plaintiff remained admitted in the<\/p>\n
Spinal Unit of Princess Alexandra Hospital, Brisbane and from<\/p>\n
13.11.1978 to 18.11.1978 in the Spinal Unit of Royal North Shore<\/p>\n
Hospital, Sydney, Australia. It is further stated in the plaint that despite<\/p>\n
sustained medical treatment, the plaintiff has not been able to recover<\/p>\n
from the spinal injuries which are of a permanent character and have<\/p>\n
physically incapacitated the plaintiff for the rest of her life. She is now<\/p>\n
permanently confined to a wheel chair, being a quadriplegic.<\/p>\n
6.     It is alleged in the plaint that apart from the physical agony and<\/p>\n
mental anguish which the plaintiff underwent during her treatment, the<\/p>\n
plaintiff also suffered emotional and psychological pain which will live<\/p>\n
with her as long as she lives. According to the plaintiff, she had a very<\/p>\n
CS(OS) 1298\/1982                                               Page 5 of 64<\/span>
\n bright and fruitful future ahead of her but the same was cut-short by the<\/p>\n
said permanent disability suffered by the plaintiff on account of utter<\/p>\n
negligence and carelessness of the defendant, its employees, servants<\/p>\n
and agents. It is alleged that the defendant was under a duty to keep its<\/p>\n
swimming pool safe for the purposes of swimming. According to the<\/p>\n
plaintiff, the incident speaks for itself and the plaintiff is entitled to the<\/p>\n
benefit of the maxim of res ipsa loquitur. The sum of ` 2 crores which<\/p>\n
has been claimed by the plaintiff by way of damages has been<\/p>\n
computed as under:-\n<\/p>\n
 i)      Expenses incurred by the plaintiff on\n         medical treatment and care in India\n         and Australia                              -        `   20,00,000.00\n\n ii)     Damages on account of physical pain,\n         mental anguish and psychological\n         anguish and loss of education              -        `   50,00,000.00\n\n iii)    Damages on account of loss of              -    `   1,30,00,000.00\n         earnings for the rest of her life\n                                           Total    -    `   2,00,00,000.00\n\n\n\nConsequently, a decree of    `   2 crores along with interest at the rate of\n\n<\/pre>\n
18% p.a. from the date of presentation of the plaint till realization has<\/p>\n
been prayed for by the plaintiff.\n<\/p>\n
Averments in the Written Statement:\n<\/p>\n
7.      A preliminary objection was taken by the defendant that the<\/p>\n
plaint was not filed by a duly authorized person. According to the<\/p>\n
CS(OS) 1298\/1982                                                    Page 6 of 64<\/span>
\n defendant, the plaint has been signed and verified by Mr Geoffrey Beer<\/p>\n
as the alleged attorney of Ms Susan Leigh Beer but the alleged power<\/p>\n
of attorney has neither been filed with the plaint nor is there any list of<\/p>\n
documents \/ reliance filed with the plaint making a reference to the<\/p>\n
same.\n<\/p>\n<\/p>\n
8.      The defendant also took the plea that the suit is liable to be<\/p>\n
dismissed for non-joinder of a necessary party.         According to the<\/p>\n
defendant, while it is admitted that the defendant had been running a<\/p>\n
five-star hotel known as Akbar Hotel, the defendant was only a lessee<\/p>\n
from the New Delhi Municipal Committee, which is the owner of the<\/p>\n
building and the premises including the swimming pool. According to<\/p>\n
the defendant the NDMC was, therefore, a necessary party. Since the<\/p>\n
plaintiff had not impleaded the NDMC as a party to the suit, the same<\/p>\n
was liable to be rejected for non-joinder of a necessary party.<\/p>\n
9.      As per the written statement, Mr Geoffrey Beer and the plaintiff<\/p>\n
stayed at the hotel as alleged. However, it is further stated that the<\/p>\n
guests registered at the hotel could use the swimming pool entirely at<\/p>\n
their risk and responsibility and that there was no express or implied<\/p>\n
obligation on the part of the hotel in this behalf. According to the<\/p>\n
defendant, the hotel merely permits the guests to swim if they so<\/p>\n
choose at their absolute volition without any charge for the same or<\/p>\n
CS(OS) 1298\/1982                                              Page 7 of 64<\/span>
\n consideration whatsoever.      It was even contended that, therefore,<\/p>\n
merely because a guest may choose to swim at the swimming pool, it<\/p>\n
cannot create a contract or fall within the ambit of any contractual<\/p>\n
relationship in this regard and no question of any breach of contract<\/p>\n
arose at all. It was stated that any guest, who uses the swimming pool,<\/p>\n
does so on an \u2015as is\u2016 basis. It is further stated that insofar as the<\/p>\n
children of guests are concerned, the parents are entirely responsible for<\/p>\n
the safety of the children in the pool and that even otherwise, according<\/p>\n
to the rules, the defendant does not accept any responsibility for any<\/p>\n
accident. It was also contended that as regards the construction of the<\/p>\n
swimming pool, the same had been done by the NDMC and that it<\/p>\n
conformed to the well accepted and well recognized standards.<\/p>\n
10.    The defendant further stated that the plaintiff did not observe the<\/p>\n
rules with regard to the use of the swimming pool and was herself<\/p>\n
wholly negligent and, in any event, no claim would lie against ITDC.<\/p>\n
11.    The defendant further stated in the written statement that the<\/p>\n
plaintiff should not have jumped into the pool from the shallow end and<\/p>\n
that swimmers have necessarily to use the diving board and dive into<\/p>\n
the deep end of the swimming pool. According to the defendant, the<\/p>\n
jumping or diving at the shallow side by the plaintiff was wholly<\/p>\n
wrong, negligent and contrary to the well accepted norms of swimming<\/p>\n
CS(OS) 1298\/1982                                              Page 8 of 64<\/span>
\n and in violation of the laid down rules. It was further alleged that there<\/p>\n
are fixed stairs built into the swimming pool for going into the<\/p>\n
swimming pool and obviously the plaintiff did not enter the swimming<\/p>\n
pool through the stairs, which was a wholly negligent act on her part.<\/p>\n
According to the defendant, the plaintiff had been negligent in jumping<\/p>\n
into the pool from the shallow end even assuming, without admitting<\/p>\n
that she had jumped into the pool as alleged by her. The defendant<\/p>\n
stated that the incident happened otherwise than what was alleged. The<\/p>\n
defendant denied that the bottom of the pool was slippery and also<\/p>\n
denied that the plaintiff slipped in the swimming pool as alleged. It<\/p>\n
was also contended that the plaintiff had not even jumped into the<\/p>\n
swimming pool as alleged by her.         The defendant stated that the<\/p>\n
swimming pool was cleaned according to the well recognized standards<\/p>\n
and on the date of the incident also the swimming pool had been<\/p>\n
cleaned. Accordingly, it was not slippery. The defendant stated that as<\/p>\n
a matter of fact, the injury to the plaintiff could not have been suffered<\/p>\n
as a result of the plaintiff jumping and slipping in the swimming pool<\/p>\n
as alleged.\n<\/p>\n<\/p>\n
12.    The defendant stated that swimming pools with glazed tiles are<\/p>\n
well accepted. It was again denied that the tiles covering the floor of<\/p>\n
the pool at the said hotel were slippery as alleged or otherwise and that<\/p>\n
CS(OS) 1298\/1982                                              Page 9 of 64<\/span>
\n the defendant did not keep the floor of the pool clean or did not<\/p>\n
properly maintain the same.\n<\/p>\n<\/p>\n
13.    In the written statement it is further stated that as a matter of fact,<\/p>\n
the plaintiff and her brother were playing in and around the swimming<\/p>\n
pool and all of a sudden the accident happened. The defendant denied<\/p>\n
the averments and allegations in the plaint to the effect that her feet had<\/p>\n
touched the floor of the pool and that they slipped resulting in the loss<\/p>\n
of control of the plaintiff and that her head hit against the wall of the<\/p>\n
pool. It was further averred in the written statement that the injury<\/p>\n
caused to the plaintiff did not permit her to remember correctly<\/p>\n
anything of what had actually happened. According to the defendant,<\/p>\n
even the parents and brother of the plaintiff could not describe the<\/p>\n
accident when the defendant made enquiries in this behalf from them<\/p>\n
after the accident and before they left the hotel. The defendant further<\/p>\n
stated that there was a lifeguard in attendance who had immediately<\/p>\n
gone to rescue the plaintiff after seeing the sudden accident and that the<\/p>\n
pool was well marked indicating the depth of water at different places.<\/p>\n
The plaintiff was entirely responsible for the incident.<\/p>\n
14.    In paragraph 11 of the written statement, it is admitted that the<\/p>\n
plaintiff, after having suffered the injury, did not swim out of the pool.<\/p>\n
However, it is stated that it was an employee of the defendant, who was<\/p>\n
CS(OS) 1298\/1982                                                 Page 10 of 64<\/span>
\n the attendant at the swimming pool, who was responsible for bringing<\/p>\n
the plaintiff out of the water. As per the written statement, the parents<\/p>\n
of the plaintiff were not close to the pool but were at a distance relaxing<\/p>\n
in the chairs. The plaintiff’s brother, however, was close to the pool<\/p>\n
but he was dazed at that point of time and could not say as to what<\/p>\n
happened. The defendant denied that the parents of the plaintiff had<\/p>\n
seen the incident or that they had rescued the plaintiff as alleged in the<\/p>\n
plaint.\n<\/p>\n<\/p>\n
15.    Interestingly, in the written statement the defendant has denied<\/p>\n
that the plaintiff had suffered any spinal injuries or any injuries of a<\/p>\n
permanent character. It was denied that the plaintiff was in any way<\/p>\n
physically incapacitated.\n<\/p>\n<\/p>\n
16.    The insensitivity of the defendant is disclosed by the following<\/p>\n
averment in the written statement:-\n<\/p>\n
       \u2015It is clear that the injuries whatever they were, did not
\n       affect the mobility of the plaintiff which is evident also
\n       from the fact that she had been found fit to travel soon after
\n       the accident and she could have travelled even earlier than
\n       she did.\u2016<\/p>\n
17.    The defendant has also stated that it had a daily routine for<\/p>\n
cleaning of the swimming pool according to standard procedure and<\/p>\n
processes, before the swimming pool is opened for use every day.<\/p>\n
Thus, according to the defendant, there was neither any chance at all of<\/p>\n
CS(OS) 1298\/1982                                               Page 11 of 64<\/span>
\n the swimming pool being slippery or unsafe nor was it slippery or<\/p>\n
unsafe.     According to the defendant, it had provided the help and<\/p>\n
assistance of a lifeguard, notified the conditions subject to which the<\/p>\n
pool could be used as licencees, displayed information regarding<\/p>\n
different depths of the water at different places by markings in bold<\/p>\n
English letters. The defendant stated that the incident was the result of<\/p>\n
violations of the conditions for use of the pool on the part of the<\/p>\n
plaintiff and because of the utter negligence on the part of the plaintiff.<\/p>\n
The defendant denied that the principle of res ipsa loquitur would<\/p>\n
apply.      The defendant also denied that any damages or losses, as<\/p>\n
claimed, were caused to the plaintiff. Consequently, the defendant<\/p>\n
contended that the suit be dismissed with costs.\n<\/p>\n
\nIssues:\n<\/p>\n
18.    On the basis of the averments made in the plaint and the written<\/p>\n
statement, the following nine issues were framed:-<\/p>\n
       1.     Whether the suit has been filed by duly authorized person?\n<\/p><\/blockquote>\n
       2.     Whether New Delhi Municipal Committee was owner of the
\n              building of Akbar Hotel and was a necessary party?\n<\/p><\/blockquote>\n
       3.     Whether the tiles covering the floor of the swimming pool
\n              were slippery?\n<\/p><\/blockquote>\n
       4.     Whether the floor of the swimming pool was not clean and
\n              had not been properly maintained, resulting in the growth
\n              and accumulation of slime on the tiles?\n<\/p><\/blockquote>\n
       5.     Whether the plaintiff suffered injuries on account of the
\n              nature and condition of the bottom of the pool and due to<\/p>\n
CS(OS) 1298\/1982                                              Page 12 of 64<\/span>
\n               negligence of the hotel? If so, what injuries were suffered
\n              by her?\n<\/p><\/blockquote>\n
       6.     Whether the plaintiff was required to observe any rules in
\n              the use of swimming pool and she did not observe the said
\n              rules and was herself negligent for the injuries suffered, if
\n              any?\n<\/p><\/blockquote>\n
       7.     Whether the swimming in the pool was at the risk and
\n              responsibility of the plaintiff (the guest) and there was no
\n              obligation on the hotel in this behalf?\n<\/p><\/blockquote>\n
       8.     Whether the defendant was in legal duty to keep the
\n              swimming pool safe for swimming of guests and the
\n              plaintiff was entitled to the benefit of the maxim res ipsa
\n              loquitur?\n<\/p><\/blockquote>\n
       9.     To what amount, if any, the plaintiff is entitled?<\/p><\/blockquote>\n
       As many as 22 witnesses have been examined on behalf of the<\/p>\n
plaintiff. Of these the most important are PW1 (the plaintiff herself),<\/p>\n
PW2 Mr G.L. Beer (the plaintiff’s father), PW4 Dr J. A. Smith<\/p>\n
(Neurosurgeon– expert witness), PW8 Mr G. L. McDonald (expert<\/p>\n
witness), PW14 Mr K. R. Dobson (expert witness), PW18 Mr L. I. Sly<\/p>\n
(expert witness), PW19 Mrs P. J. Beer (the plaintiff’s mother) and<\/p>\n
PW22 Dr Arjun Dass Sehgal (the doctor who initially treated the<\/p>\n
plaintiff at Holy Family Hospital). It appears that there is some error in<\/p>\n
the assigning of numbers to these witnesses. The error is that Mrs P. J.<\/p>\n
Beer, who is shown at serial No. 19 of the list of witnesses, has been<\/p>\n
assigned the number \u2017PW19′. However, Dr Arjun Dass Sehgal, who is<\/p>\n
shown at serial No. 22 of the list of witnesses, has also been assigned<\/p>\n
the number \u2017PW19′. Therefore, for the purposes of this suit, I would<\/p>\n
CS(OS) 1298\/1982                                                   Page 13 of 64<\/span>
\n treat Mrs P. J. Beer as PW19 and Dr Arjun Dass Sehgal as PW22. This<\/p>\n
anomaly has probably appeared because 21 witnesses were examined in<\/p>\n
Australia and one witness, that is, Dr Arjun Dass Sehgal was examined<\/p>\n
in Delhi. The defendant examined two witnesses, namely, DW1 Dr G.<\/p>\n
G. Manshramani and DW2 Balram Verma (the lifeguard at Akbar<\/p>\n
Hotel).\n<\/p>\n
Issue No. 1:\n<\/p>\n
19.    It has been contended by the defendant that the suit has not been<\/p>\n
filed by a duly authorized person. It is an admitted position that the<\/p>\n
plaint was filed on 21.01.1982 and the same purports to have been filed<\/p>\n
by the plaintiff through her attorney (Geoffrey Beer), who was<\/p>\n
appointed as the attorney by the plaintiff by virtue of a power of<\/p>\n
attorney dated 15.01.1982. The said Geoffrey Beer is the plaintiff’s<\/p>\n
father. He had signed and verified the plaint in New Delhi on<\/p>\n
21.01.1982 claiming to be the attorney of the plaintiff as per the said<\/p>\n
power of attorney dated 15.01.1982.\n<\/p>\n<\/p>\n
20.    According to the defendant, the power of attorney dated<\/p>\n
15.01.1982 did not accompany the plaint and that it was filed for the<\/p>\n
first time on 15.11.1991, after almost 10 years. It was also contended<\/p>\n
that the said power of attorney cannot be regarded as valid or authentic<\/p>\n
as it is allegedly not executed in the presence of a notary nor has it been<\/p>\n
authenticated by a notary. It was also contended that the plaintiff,<\/p>\n
CS(OS) 1298\/1982                                               Page 14 of 64<\/span>
\n despite ample opportunity, failed to get the power of attorney duly<\/p>\n
proved and exhibited. Consequently, it has been argued that Mr G. L.<\/p>\n
Beer cannot be regarded as an authorized agent under Order 3 Rule 2<\/p>\n
CPC and, therefore, the suit was not properly verified, signed or<\/p>\n
instituted and, therefore, the same is liable to be dismissed on this<\/p>\n
ground.\n<\/p>\n<\/p>\n
21.    On behalf of the plaintiff, it was urged that the suit had been<\/p>\n
instituted by a duly authorized person. The plaintiff had authorized her<\/p>\n
father Mr G. L. Beer by virtue of the said power of attorney dated<\/p>\n
15.01.1982 and even otherwise to institute the suit as also to sign and<\/p>\n
verify the plaint on her behalf. It is clear that the plaintiff had become<\/p>\n
virtually immovable because she had become a quadriplegic on account<\/p>\n
of the said incident.    It was, therefore, extremely difficult, if not<\/p>\n
impossible, for her to travel to New Delhi from Australia to present the<\/p>\n
plaint. It is in these circumstances that the plaintiff had authorized her<\/p>\n
father Mr G. L. Beer to sign, verify and file the plaint. She had also<\/p>\n
executed a power of attorney dated 15.01.1982. It was also contended<\/p>\n
on behalf of the plaintiff that, in any event, the plaintiff has clearly<\/p>\n
testified that she had authorized Mr G. L. Beer to institute the present<\/p>\n
suit. Thus, in any event, there was a clear ratification on her part. The<\/p>\n
learned counsel for the plaintiff also placed reliance on the judgment of<\/p>\n
the Supreme Court in the case of United Bank of India v. Naresh<\/p>\n
CS(OS) 1298\/1982                                              Page 15 of 64<\/span>
\n Kumar: 1996 (6) SCC 660 wherein it was, inter alia, held that<\/p>\n
ratification can be proved later and that a mere irregularity in procedure<\/p>\n
should not defeat a substantive right of an individual.<\/p>\n
22.    The present suit was instituted as an indigent person’s application<\/p>\n
being IPA 1\/1982. The order passed in IPA 1\/1982 on 22.01.1982<\/p>\n
clearly records that the application was presented by the father who<\/p>\n
held a power of attorney from the applicant who was stated to be<\/p>\n
paralyzed and was in Australia. By virtue of the said order dated<\/p>\n
22.01.1982, the applicant (the plaintiff herein) was exempted from<\/p>\n
presentation of the application in person and the father of the applicant<\/p>\n
(plaintiff) was allowed to do the same. It was also directed as under:-<\/p>\n
       \u2015Let the authorized agent and father of the plaintiff be
\n       examined.\u2016<\/p>\n
Thereafter, on 22.01.1982 itself, the statement of Mr Geoffrey Beer<\/p>\n
(the plaintiff’s father) was recorded on solemn affirmation and was,<\/p>\n
inter alia, to the following effect:-\n<\/p>\n
       \u2015plaintiff is my daughter. I hold power of attorney from the
\n       plaintiff in my favour to file the present petition. She does
\n       not own any immovable property…………… She is
\n       completely paralyzed and unable to work. She is, therefore,
\n       unemployed. She has no source of income other than the
\n       pension given to her by Australian Government…….. She is
\n       unable to pay the court fees on the claim………… I am
\n       fully aware of the matter in controversy in this suit. The
\n       claim is correct and well-founded. I am able to answer all
\n       material questions.\u2016<\/p>\n
CS(OS) 1298\/1982                                              Page 16 of 64<\/span>
\n Subsequently, by an order dated 24.09.1982, IPA 1\/1982 was directed<\/p>\n
to be numbered and registered as a suit. From this, it is clear that the<\/p>\n
plaintiff’s father Mr G. L. Beer had appeared before this Court on<\/p>\n
22.01.1982 and had categorically stated that he held a power of<\/p>\n
attorney from the applicant. The plaint also indicated that it had been<\/p>\n
signed by Mr G. L. Beer as the attorney of the plaintiff on the basis of a<\/p>\n
power of attorney dated 15.01.1982.\n<\/p><\/blockquote>\n
23.    The plaintiff came to the witness box as PW1 and, in response to<\/p>\n
the question as to whether she felt she was going to recover after the<\/p>\n
treatment at Melbourne in 1980-1981, she answered:-<\/p>\n
       \u2015I think at the end of this treatment I realized that I was not
\n       going to recover any more mobility or sensation and we
\n       decided by that time to commence this court action for
\n       compensation.\u2016<\/p>\n
A further question was put to her as to whether in 1981 she decided to<\/p>\n
file this action herself. She answered in the affirmative. She also<\/p>\n
stated that the suit was filed at her instance in early 1982 and that she<\/p>\n
had authorized her father to file the suit. She also stated that she had<\/p>\n
executed a power of attorney in his favour for this purpose. As there<\/p>\n
was some controversy before the court examiner in Australia with<\/p>\n
regard to whether the power of attorney should be marked as an exhibit<\/p>\n
or simply marked, the said examiner marked the document both as<\/p>\n
Exhibit PW1\/17 and as Mark \u2017A’.            Of course, the plaintiff PW1<\/p>\n
CS(OS) 1298\/1982                                                Page 17 of 64<\/span>
\n admitted her signature on the said document of power of attorney. In<\/p>\n
her testimony, the plaintiff (PW1) also stated that whatever has been<\/p>\n
stated in the plaint is correct.\n<\/p><\/blockquote>\n
24.     I also noticed from the record that an application (IA<\/p>\n
12075\/1991) had been filed for placing the power of attorney of the<\/p>\n
plaintiff in favour of her father on the record of the case. Along with<\/p>\n
the application was an affidavit of one Mr Mohan Lal, who was the<\/p>\n
clerk of Mr Madan Bhatia, who was the Advocate on behalf of the<\/p>\n
plaintiff. In the said affidavit dated 15.01.1991, it is stated that the<\/p>\n
plaintiff’s father Mr G. L. Beer had handed over the power of attorney<\/p>\n
in his favour for being filed in this Court when the suit had been filed.<\/p>\n
It is further stated that he had been informed that when the evidence<\/p>\n
was being recorded in Brisbane, Australia it was discovered that the<\/p>\n
said power of attorney was not on the record of the case. When the<\/p>\n
counsel for the plaintiff returned to India, the said clerk checked the<\/p>\n
personal files lying in the office of the said counsel and discovered that<\/p>\n
the power of attorney was in those files. The said clerk further stated<\/p>\n
that the said power of attorney had not been filed on account of<\/p>\n
inadvertence and because of an accidental slip. On the said application<\/p>\n
No. 12075\/1991, this Court, by an order dated 25.11.1991, directed that<\/p>\n
the power of attorney executed by the plaintiff in favour of her father,<\/p>\n
which had been filed along with the application, be kept on record.<\/p>\n
CS(OS) 1298\/1982                                              Page 18 of 64<\/span>\n<\/p>\n
 25.    From the above, it is clear that in the plaint itself it has been<\/p>\n
stated that the same was being signed, verified and instituted by Mr G.<\/p>\n
L. Beer on behalf of his daughter on the basis of the power of attorney<\/p>\n
dated 15.01.1982. Inadvertently, that power of attorney had not been<\/p>\n
filed along with the plaint and was subsequently filed on 25.11.1991 by<\/p>\n
virtue of an application being IA 12075\/1991 which was allowed and<\/p>\n
the power of attorney was taken on record. Apart from this, the plaintiff<\/p>\n
has clearly testified that the contents of the plaint were correct and that<\/p>\n
the same had been instituted by her father on her instructions. There is,<\/p>\n
thus, a clear ratification on her part. It is not a case where a person has<\/p>\n
instituted a suit representing himself to be an authorized agent and<\/p>\n
where the principal has refuted the claim. Mr G. L. Beer, undoubtedly,<\/p>\n
verified and filed the plaint as an agent of the plaintiff. This fact has<\/p>\n
been confirmed by the plaintiff herself. The Supreme Court in the case<\/p>\n
of United Bank of India v. Naresh Kumar (supra) clearly held that the<\/p>\n
procedural defects which do not go to the root of the matter should not<\/p>\n
be permitted to defeat a just cause and that there is sufficient power in<\/p>\n
the Courts, under the Code of Civil Procedure, to ensure that injustice<\/p>\n
is not done to any party who has a just cause. The Supreme Court<\/p>\n
further observed that as far as possible a substantive right should not be<\/p>\n
allowed to be defeated on account of a procedural irregularity which is<\/p>\n
curable. In the case before the Supreme Court, the issue arose with<\/p>\n
CS(OS) 1298\/1982                                               Page 19 of 64<\/span>
\n regard to the authority of a person to sign the pleadings on behalf of a<\/p>\n
company. The Court observed that a person may be expressly<\/p>\n
authorized to sign pleadings on behalf of a company, for example by<\/p>\n
the Board of Directors passing a resolution to that effect or by a power<\/p>\n
of attorney being executed in favour of any individual. It was<\/p>\n
specifically observed that even in the absence of such a resolution or a<\/p>\n
power of attorney, in cases where pleadings have been signed by one of<\/p>\n
its officers, a Corporation could ratify the said action of its officer in<\/p>\n
signing the pleadings and that such ratification could be expressed or<\/p>\n
implied. It was further held that the Court could, on the basis of the<\/p>\n
evidence on record, after taking into account all the circumstances of<\/p>\n
the case, especially with regard to the conduct of the trial, come to the<\/p>\n
conclusion that the corporation had ratified the act of signing of the<\/p>\n
pleading by its officer. In the present case, I find that it has come in<\/p>\n
evidence that the plaintiff had decided to commence the action for<\/p>\n
compensation when her treatment ended and she realized that she<\/p>\n
would not recover any further. She had clearly stated that she had<\/p>\n
asked her father to institute the present suit and had even authorized<\/p>\n
him by executing the power of attorney dated 15.01.1982. The present<\/p>\n
suit had been instituted by her father as her authorized attorney. Even<\/p>\n
if I do not go into the matter of admissibility of the document of power<\/p>\n
of attorney, the action of the plaintiff’s father in signing, verifying and<\/p>\n
CS(OS) 1298\/1982                                               Page 20 of 64<\/span>
\n filing the plaint stands fully ratified by the plaintiff. Therefore, the<\/p>\n
only conclusion that can be arrived at is that the suit had been filed by a<\/p>\n
duly authorized person and this issue is accordingly decided in favour<\/p>\n
of the plaintiff and against the defendant.\n<\/p>\n
\nIssue No. 2:\n<\/p>\n
26.    This issue, although framed, was not pressed by the learned<\/p>\n
counsel for the defendant at the time of hearing and, therefore, the same<\/p>\n
is not being dealt with.\n<\/p>\n
Issue Nos. 3-8:\n<\/p>\n
27.     These issues are being discussed together as they are all<\/p>\n
inextricably linked with each other. Essentially these issues require the<\/p>\n
Court to determine the following:-\n<\/p>\n
       (1)     Nature of the injuries suffered by the plaintiff (issue No.5);\n<\/p><\/blockquote>\n
       (2)     Cause of the injury; whether caused by jumping as alleged<\/p>\n
               by the plaintiff or diving as propounded by the defendant<\/p>\n
               (issue No.5);\n<\/p><\/blockquote>\n
       (3)     It is obvious that if the cause of injuries is diving, the<\/p>\n
               plaintiff’s case falls to the ground. In case the injuries have<\/p>\n
               been caused by jumping into the pool, the plaintiff has to<\/p>\n
               further establish:-\n<\/p><\/blockquote>\n
CS(OS) 1298\/1982                                                 Page 21 of 64<\/span><\/p>\n
                    (i)   that the tiles at the floor of the swimming pool
\n                         were slippery, as they were not properly
\n                         maintained (issue Nos. 3, 4 & 8); and<\/p>\n<\/blockquote>\n
                   (ii) that the plaintiff was herself not negligent
\n                        (issues 6 & 7)<\/p>\n
Nature of injuries:\n<\/p><\/blockquote>\n<\/blockquote>\n
28.    With regard to the nature of the injuries suffered by the plaintiff,<\/p>\n
the testimony of PW22 Dr Arjun Dass Sehgal, who treated the plaintiff,<\/p>\n
is most material. According to Dr Sehgal, the plaintiff’s X-ray showed<\/p>\n
that there was a fracture of cervical-7 vertebra. She also had a lacerated<\/p>\n
wound on the top of her head going to the left of the midline.\n<\/p><\/blockquote>\n
According to him, she suffered a compression fracture of the cervical<\/p>\n
seventh vertebra. According to him, that was a flexion injury. He<\/p>\n
further stated that the plaintiff had a permanent disability and because<\/p>\n
of the injury, her legs, bowel and bladder were paralyzed. She had<\/p>\n
permanent disability and she had no sensation of pain or touch or<\/p>\n
temperature below the cervical column. He stated that the plaintiff was<\/p>\n
admitted on 05.05.1978 and was transferred to Australia on 13.06.1978<\/p>\n
and that he had accompanied the plaintiff to Australia. He further<\/p>\n
stated that the X-rays were taken on his advice and they are exhibited<\/p>\n
as Exhibits PW1\/7 to PW1\/16.\n<\/p>\n<\/p>\n
29.    PW4 Dr J. A. Smith, who specialized in neurosurgery, stated that<\/p>\n
the plaintiff had consulted her. He stated that he had seen the X-rays of<\/p>\n
CS(OS) 1298\/1982                                                 Page 22 of 64<\/span>
\n her spinal injury and had also examined her. He categorically stated<\/p>\n
that after seeing the plaintiff and seeing her X-rays, there was no<\/p>\n
possibility of a recovery from the spinal injury which she had<\/p>\n
sustained. He stated that her injury was permanent. In fact, he had<\/p>\n
given a report which has been marked as Exhibit PW4\/1.                He re-<\/p>\n
affirmed what he stated in the said report. Dr Smith stated that a<\/p>\n
compression injury would be different from a flexion injury of the<\/p>\n
cervical spine. But, he clarified that one would have to define the ways<\/p>\n
in which the injuries are to be described. According to him, if one<\/p>\n
considers a flexion injury then there was some degree of compression<\/p>\n
occurring in that type of injury and that a degree of compression is<\/p>\n
usually in the anterior portions of the vertebral bodies. Thus, according<\/p>\n
to the said witness, it cannot always be said that \u2015it is this sort of injury<\/p>\n
or that sort of injury\u2016. However, Dr Smith stated that it is a matter of<\/p>\n
describing what one sees on the X-rays in relation to what happened<\/p>\n
clinically. He stated that he tried to clarify by stating that if the present<\/p>\n
case was a true vertical compression injury, then one might expect that<\/p>\n
the features would be that of a burst fracture. And, according to Dr<\/p>\n
Smith, the present case is not one of burst fracture.<\/p>\n
30.    Exhibit PW2\/33 indicates the external injury to be a contusion<\/p>\n
lacerated wound about 1 inch long in the left parietal area just along the<\/p>\n
mid line. Exhibit PW19\/1 which is the admission and discharge report<\/p>\n
CS(OS) 1298\/1982                                                Page 23 of 64<\/span>
\n at Holy Family Hospital, New Delhi, indicates the diagnosis of the<\/p>\n
plaintiff to be \u2015Quadriplegia \u202b \u062d\u202c# C6-7\u2016. Exhibit PW19\/3, which is the<\/p>\n
case summary and discharge record at Holy Family Hospital, indicates<\/p>\n
the investigation to reveal that the plaintiff’s injury caused<\/p>\n
\u2015quadriplegia \u202b \u062d\u202c# cervical spine\u2016. The X-rays were shown to indicate a<\/p>\n
fracture in the cervical spine at C6-7. There was no fracture in the skull.<\/p>\n
The X-ray report which forms part of Exhibit PW19\/3 indicates \u2015no<\/p>\n
fracture shown in skull, fracture C6 &    7   with slight ant. sliding of C7<\/p>\n
under C6\u2016.\n<\/p>\n<\/p>\n
31.    From the above evidence, it is abundantly clear that the nature of<\/p>\n
the injuries were such which resulted in the fracture of the 6th and 7th<\/p>\n
cervical vertebrae with slight anterior sliding of the 7th vertebra under<\/p>\n
the 6th vertebra. This resulted in the plaintiff becoming a quadriplegic.<\/p>\n
32.    At this juncture, it would be relevant to examine the testimony of<\/p>\n
the plaintiff, who was examined as PW1.               She stated that she<\/p>\n
represented her school in swimming every year of her high school life.<\/p>\n
She attended the Queensland State Championship for under-10s in the<\/p>\n
butterfly stroke and she was a member of many State teams for water<\/p>\n
polo as well. She also represented the under-18 team and the open<\/p>\n
women’s team of her State. She had travelled to Tasmania and to New<\/p>\n
Zealand and on those occasions her team had won the gold medal. She<\/p>\n
CS(OS) 1298\/1982                                                Page 24 of 64<\/span>
\n had also been invited into the Australian team to tour the United States<\/p>\n
but she had previously been committed to travel to New Zealand so she<\/p>\n
chose to travel to New Zealand. She stated that she was a member of<\/p>\n
the Queensland team and was a co-captain of the team which travelled<\/p>\n
to New Zealand.\n<\/p>\n<\/p>\n
33.    The plaintiff further stated in her testimony that she had gone to<\/p>\n
take a swim on 05.05.1978 in the swimming pool at Akbar Hotel at<\/p>\n
about 5 O’clock. According to her, it had been a hot day and they had<\/p>\n
gone down to the pool; her father, mother, her younger brother and<\/p>\n
herself. When they got to the pool side area, her father, brother and<\/p>\n
mother went ahead to get into the pool and she stopped at the edge of<\/p>\n
the pool to take off her robe and her sandals. Thereafter, she stated that<\/p>\n
she remembered that her hair got tangled in the strap of her swimming<\/p>\n
costume. She took time to fix that up and to untangle it.        Then she<\/p>\n
walked over to the shallow end of the pool and she jumped into the<\/p>\n
pool. She stated that when she jumped in the pool she felt that her feet<\/p>\n
touched the bottom of the pool and immediately they slid forward<\/p>\n
throwing her backwards against the side of the pool. She felt her head<\/p>\n
strike the side of the pool. Then her brother and father came over and<\/p>\n
supported her in the pool and they, with the help of another person,<\/p>\n
whom she did not know, lifted her on to the side of the pool. She stated<\/p>\n
that she remembered that her father was being very careful in lifting her<\/p>\n
CS(OS) 1298\/1982                                              Page 25 of 64<\/span>
\n and he supported her very gently but very strongly and her head was<\/p>\n
very stable in the lifting. She stated that when her feet touched the<\/p>\n
bottom of the pool, she found it to be very slippery and immediately<\/p>\n
both her feet slid forward. She stated that her body was tingling at that<\/p>\n
time, right from her shoulders down to her feet. And, then her body<\/p>\n
started to go numb. She stated that she also had a small cut on the back<\/p>\n
of her head where it struck the side of the pool and there was a bit of<\/p>\n
blood in the water of the pool. She stated that while they were waiting<\/p>\n
for the ambulance, they transported her on a stretcher-like thing to the<\/p>\n
manager’s room where they waited for about two hours. Thereafter,<\/p>\n
she was transported to Holy Family Hospital in the said ambulance.<\/p>\n
Dr Arjun Sehgal was present at Holy Family Hospital and he took<\/p>\n
charge of the case. He arranged to have the X-rays taken etc.<\/p>\n
34.    This part of her testimony has gone unchallenged. From the<\/p>\n
above evidence, it is clear that the plaintiff has been able to establish<\/p>\n
that she had gone to take a swim along with her family members in the<\/p>\n
swimming pool at Akbar Hotel at about 5 pm on 05.05.1978. That<\/p>\n
when she jumped into the pool from the shallow end, her feet, on<\/p>\n
touching the floor of the pool, slid forward as the same was slippery.<\/p>\n
Because of this, her head hit the side of the swimming pool.<\/p>\n
Consequent thereupon, she suffered the injuries to her cervical spine<\/p>\n
and the lacerated injury on her head. The injury caused to the cervical<\/p>\n
CS(OS) 1298\/1982                                             Page 26 of 64<\/span>
\n spine and particularly the 6th and 7th vertebra, as indicated above,<\/p>\n
resulted in her ultimately becoming a quadriplegic, i.e., not having any<\/p>\n
sensation below her neck. In layman’s language, she was paralyzed<\/p>\n
neck downwards. It is also clear from the testimony of PW4 Dr J. A.<\/p>\n
Smith that there was no chance of her recovery and the injury sustained<\/p>\n
by her was for life.\n<\/p>\n<\/p>\n
35.    Thus the nature of the injuries stand determined.<\/p>\n
Cause of injuries:\n<\/p>\n
36.    It is now to be seen, what is the exact cause of the injuries. The<\/p>\n
plaintiff’s version has already been referred to above. According to<\/p>\n
her, she jumped from the shallow end of the pool and her feet touched<\/p>\n
the bottom of the pool. The floor of the pool was very slippery as a<\/p>\n
result of which her feet slid forward and her head struck the side of the<\/p>\n
pool. In the course of cross-examination, she was asked as to whether<\/p>\n
she entered the pool from the same side as her parents. She answered<\/p>\n
by stating that her mother entered the pool using the ladder and that her<\/p>\n
father entered from the same side as her and she thought her brother<\/p>\n
went around to the right side of the pool. When she was asked as to<\/p>\n
how she knew that she had entered the pool from the shallow end, she<\/p>\n
answered, because it looked shallow. The counsel for the defendant<\/p>\n
remarked and questioned — \u2015It looked shallow. And, how many<\/p>\n
different pools would you have done swimming by then?\u2016 The answer<\/p>\n
CS(OS) 1298\/1982                                             Page 27 of 64<\/span>
\n given by the plaintiff was that she would have swam in many hundreds<\/p>\n
of pools in her life. Then she was asked a question as to what is the<\/p>\n
difference between a jump and a dive? She answered that a dive is<\/p>\n
when you dive into the water and when you have your hands out ahead<\/p>\n
to break the impact of the water on your face or on your head and a<\/p>\n
jump is when you jump feet first into the pool. The counsel for the<\/p>\n
defendant questioned the plaintiff that the place of the head injury<\/p>\n
could not have been caused by striking against the wall of the pool. To<\/p>\n
this, the plaintiff answered that she was injured in the way that she<\/p>\n
remembered and the way that she had deposed earlier. She jumped in<\/p>\n
and her feet slipped on the bottom of the pool and she fell back striking<\/p>\n
her head against the side of the pool. She further stated that whether it<\/p>\n
was actually the edge of the pool or side of the pool, she was not in a<\/p>\n
position to say with certainty, because it happened in a fraction of a<\/p>\n
second. The counsel for the defendant also put it to her that she could<\/p>\n
have only sustained the injury if she had struck her head against the<\/p>\n
bottom of the pool. To this, her pointed answer was \u2015my head was<\/p>\n
nowhere near the bottom of the pool. I jumped in feet first\u2016.<\/p>\n
37.    A different situation was put to the plaintiff by the learned<\/p>\n
counsel for the defendant.     He questioned that with regard to the<\/p>\n
likelihood of the injury having been received on the face, after one<\/p>\n
dives into the pool, was it not possible that on account of some<\/p>\n
CS(OS) 1298\/1982                                             Page 28 of 64<\/span>
\n misjudgment, when one is about to strike the bottom of the pool, in<\/p>\n
order to save one’s face, one would turn one’s head towards the water<\/p>\n
to push oneself upwards.       The plaintiff answered that that is not<\/p>\n
possible at all. If such a thing were to happen, she would have merely<\/p>\n
used her hands to push her head away from the bottom of the pool.<\/p>\n
Then, the learned defence counsel suggested that \u2015if your hands are<\/p>\n
unable to stop then to save your face you would turn your head towards<\/p>\n
the bottom of the pool\u2016. To this, also, the plaintiff replied that she<\/p>\n
could not imagine any circumstance where she would turn her head<\/p>\n
towards the bottom of the pool. She stated that she would have lifted<\/p>\n
her head away from the bottom of the pool and that would be a natural<\/p>\n
reaction– \u2015to turn your head away rather than towards something<\/p>\n
being hit\u2016.\n<\/p>\n<\/p>\n
38.    From the above, it is clear that the effort of the defendant’s<\/p>\n
counsel was to propound an alternate theory for the cause of the<\/p>\n
plaintiff’s injury. The first alternative was that the plaintiff took a dive<\/p>\n
in the shallow end of the pool and hit her head on the bottom of the<\/p>\n
pool. The second alternative propounded was that the plaintiff took a<\/p>\n
dive in the shallow end of the pool and seeing that she had<\/p>\n
miscalculated her dive as she was fast approaching the bottom of the<\/p>\n
pool, she turned her head and thereby got injured on the back of her<\/p>\n
head. Both these alternative hypotheses were clearly rejected by the<\/p>\n
CS(OS) 1298\/1982                                               Page 29 of 64<\/span>
\n plaintiff, who stood firm with her initial statement that she sustained<\/p>\n
the injury when she jumped into the pool from the shallow end and the<\/p>\n
floor of the pool being slippery, her feet slid forward and her head hit<\/p>\n
the side wall of the pool.\n<\/p>\n<\/p>\n
39.    PW2 Mr G. L. Beer stated in his examination-in-chief that he had<\/p>\n
represented his school in swimming. As a soldier in World War II, he<\/p>\n
was the backstroke champion of the 2nd 9th Regiment. He also stated to<\/p>\n
be a backstroke champion of the Fourth Brigade of the AAF and that he<\/p>\n
was a member of the Scuba Association and that he was a diver. Mr G.<\/p>\n
L. Beer stated that the angle at which one would dive from the edge of<\/p>\n
a pool, not from a racing block but from the edge of the pool, would be<\/p>\n
15 degrees. On being asked the question as to when somebody was to<\/p>\n
dive into the pool from the shallow end of the pool, what would be the<\/p>\n
angle of the dive, Mr G. L. Beer answered–15 degrees. He further<\/p>\n
stated that from the starting blocks since they are higher than the edge<\/p>\n
of the pool, the angle of the dive would be close to 30 degrees.<\/p>\n
40.    With regard to the manner in which the incident took place, PW2<\/p>\n
Mr G. L. Beer stated that his son entered the pool just before his wife<\/p>\n
and himself. His wife entered through the ladder because she did not<\/p>\n
like immersing quickly. He walked past the ladder and as he had an<\/p>\n
injured knee at that time and was on a crutch, he sat on the edge of the<\/p>\n
CS(OS) 1298\/1982                                             Page 30 of 64<\/span>
\n pool and then slipped into the water so as to avoid any jar to his knee,<\/p>\n
which would be caused by jumping in. He stated that the plaintiff<\/p>\n
entered the pool after them. He said that she removed her gown and<\/p>\n
sandals while his wife and he swam to the centre of the pool and their<\/p>\n
son was possibly half way from the centre of the pool. He stated that<\/p>\n
they watched the plaintiff walk down the edge of the path where she<\/p>\n
had draped her gown and sandals. She came straight from the bottom<\/p>\n
of the path at the shallow section and jumped into the water from the<\/p>\n
edge of the pool. The water was about 2′ 6” deep at that point. He<\/p>\n
then saw her slip backwards and disappear under the water.             He<\/p>\n
believed that she may have struck her head. Then, he stated that his<\/p>\n
wife was obviously also watching because she called out \u2015Sue’s hurt\u2016.<\/p>\n
He then immediately swam where the plaintiff was. His son Nicholas<\/p>\n
had also obviously seen the incident and he reached the plaintiff before<\/p>\n
him (Mr G. L. Beer). The said witness positively stated that he saw the<\/p>\n
plaintiff slipping backwards. He stated that although he did not see her<\/p>\n
head striking against anything, but she disappeared under the water and<\/p>\n
he feared that she struck her head under the wave trap.<\/p>\n
41.    He further stated that when he reached the place where the<\/p>\n
plaintiff was, his son Nicholas was supporting her. She was on her<\/p>\n
back, face upwards and she had a small cut on the top of her head<\/p>\n
which he estimated was between half and three quarters of an inch<\/p>\n
CS(OS) 1298\/1982                                            Page 31 of 64<\/span>
\n long. He stated that there was a little bit of blood coming out of the cut<\/p>\n
and it is then that he realized that she had struck her head on the edge<\/p>\n
of the pool.\n<\/p>\n<\/p>\n
42.    PW2 Mr G. L. Beer further stated that the plaintiff was quite<\/p>\n
conscious, but dazed and he went around the other side of her. His son<\/p>\n
Nicholas was on that side. He asked a bystander to help him lift her<\/p>\n
from the pool. With great care they lifted her and slid her over the edge<\/p>\n
of the pool. He stated that he was conscious that his foot slipped on the<\/p>\n
glazed tiles on the floor of the pool. He knelt beside her and she said<\/p>\n
\u2015Oh no please\u2016. He asked her to gently move her toes and fingers and<\/p>\n
found to his horror that she could not move them. He then asked a<\/p>\n
bystander to get the manager of the hotel and a doctor. It is further<\/p>\n
stated by the said witness that after some time two men arrived, one<\/p>\n
with a portmanteau and he turned out to be Dr Chowdrah and the other,<\/p>\n
he presumed, was the manager of the hotel. The said witness was<\/p>\n
angered by the fact that the said doctor merely said that the plaintiff<\/p>\n
was suffering from concussion and that she should be taken to the<\/p>\n
hospital for the night in the hotel car. He demanded that an ambulance<\/p>\n
be called with a specialist doctor. The manger suggested that the<\/p>\n
plaintiff be lifted but the witness Mr G. L. Beer absolutely refused to<\/p>\n
allow her to be moved. However, they gently moved her on to a lylo<\/p>\n
because it was very hot at the pool side. According to this witness the<\/p>\n
CS(OS) 1298\/1982                                              Page 32 of 64<\/span>
\n ambulance took about two hours to arrive which was an incredibly long<\/p>\n
time. Thereafter, she was taken to Holy Family Hospital. A doctor<\/p>\n
was attending, whose name was later found to be Dr Arjun Sehgal. He<\/p>\n
required X-rays to be taken. The doctor told him that her daughter had<\/p>\n
suffered a spinal injury and she was paralyzed from the chin down.<\/p>\n
43.    From the testimony of PW2 Mr G. L. Beer also it is apparent that<\/p>\n
the plaintiff suffered the injury in the manner indicated by her, that is,<\/p>\n
when she jumped into the pool in the shallow end, her feet slipped on<\/p>\n
the floor of the pool and slid forward and in the process she hit the<\/p>\n
back\/ top of her head on the side of the pool which ultimately resulted<\/p>\n
in the fracture of her cervical column around the 6th \/7th cervical<\/p>\n
vertebra. This is what caused her to be paralyzed from chin down.<\/p>\n
44.    PW19 Mrs P. J. Beer, the plaintiff’s mother also indicated the<\/p>\n
manner in which the incident took place on 05.05.1978. She said that<\/p>\n
approximately at 5 pm the four of them went to the pool. They had<\/p>\n
come down in the elevator and walked from the ramp to the pool.<\/p>\n
According to her, the plaintiff stopped to take off her robe and her<\/p>\n
sandals. Her son Nicholas went on ahead a little further near the ladder<\/p>\n
and dived into the pool. Her husband and she followed. Her husband<\/p>\n
sat on the side of the pool because he had bad knee injury and slowly<\/p>\n
slipped into the water and swam to the centre of the pool. She climbed<\/p>\n
CS(OS) 1298\/1982                                              Page 33 of 64<\/span>
\n down the ladder. She stated that when she swam to the centre of the<\/p>\n
pool her husband was there and her son was a little further closer to the<\/p>\n
edge. She turned around to see if the plaintiff was following her and<\/p>\n
saw her at the edge of the pool. She jumped into the water, slipped and<\/p>\n
hit her head. She disappeared under the water then she surfaced again<\/p>\n
and was lying on her back. She stated that her feet slipped in the pool<\/p>\n
and she slipped backwards and she called to her husband \u2015Sue has been<\/p>\n
hurt\u2016. She stated that her son had seen the accident and was already<\/p>\n
swimming towards her and then her husband also swam towards her.<\/p>\n
She swam back to the ladder to get out of the pool as quickly as<\/p>\n
possible.     Her son Nicholas was supporting the plaintiff when her<\/p>\n
husband arrived and he helped to support her. A stranger came along,<\/p>\n
whom they did not see before or after, who helped in lifting the<\/p>\n
plaintiff out of the pool very-very carefully. She stated that thereafter<\/p>\n
the manager of the hotel and a doctor arrived. The doctor said that she<\/p>\n
had a concussion and that there was no serious injury to the top of her<\/p>\n
head and he suggested that she be put in a car and taken to a hospital<\/p>\n
for observation overnight.    She was distressed and she was sitting<\/p>\n
beside her daughter at the pool and the cement was very hot because it<\/p>\n
was an extremely hot day. She tried to sprinkle water over the plaintiff<\/p>\n
so that she did not burn on the concrete.       She enquired from the<\/p>\n
plaintiff as to whether she was alright and the plaintiff stated \u2015my<\/p>\n
CS(OS) 1298\/1982                                             Page 34 of 64<\/span>
\n hands and my legs are going numb. They are tingling and going<\/p>\n
numb\u2016. Mrs P. J. Beer further stated that the hotel manager suggested<\/p>\n
that the plaintiff be taken to hospital in a hotel car but her husband<\/p>\n
objected very strongly and said that she must go in an ambulance.<\/p>\n
45.    From the testimony of the plaintiff’s mother PW19 Mrs P. J. Beer<\/p>\n
also, the plaintiff’s version of the manner in which she suffered the<\/p>\n
injury is fully corroborated. Although, all the three witnesses namely,<\/p>\n
the plaintiff, her father Mr G. L. Beer and her mother Mrs P. J. Beer<\/p>\n
were subjected to lengthy cross-examination, nothing has been elicited<\/p>\n
from these witnesses in the course of such cross-examination so as to<\/p>\n
cast any doubt on their testimonies with regard to the exact manner in<\/p>\n
which the incident occurred.\n<\/p>\n<\/p>\n
       It may be noted that in the written statement, the defendant did<\/p>\n
not plead that the plaintiff had dived into the pool. Yet, in the course of<\/p>\n
cross-examining the witnesses and in the course of arguments, it was<\/p>\n
strongly urged on behalf of the defendant that the plaintiff did not jump<\/p>\n
into the pool from the shallow end but dived into the pool. It is an<\/p>\n
established principle that unless a fact is pleaded, no amount of<\/p>\n
evidence led in respect of that alleged fact can cure the defect. The<\/p>\n
plaintiff’s case that she jumped into the pool at the shallow end and that<\/p>\n
her feet slipped on the slippery floor of the pool as a result of which she<\/p>\n
CS(OS) 1298\/1982                                              Page 35 of 64<\/span>
\n hit her head and sustained injuries is fully supported by the medical<\/p>\n
evidence on record. Both PW4 Dr J.A. Smith and PW22 Dr Arjun<\/p>\n
Dass Sehgal have opined that the injury caused to the plaintiff was<\/p>\n
largely a flexion injury and not a compression injury, which would<\/p>\n
have resulted in a burst fracture. These opinions are clearly in<\/p>\n
corroboration of the testimonies of the plaintiff, her father Mr G. L.<\/p>\n
Beer and her mother Mrs P. J. Beer. It has come in evidence that a<\/p>\n
flexion injury of the kind suffered by the plaintiff could not have been<\/p>\n
caused by the head hitting the floor of the pool as a result of a vertical<\/p>\n
or near vertical dive. In that eventuality the injury would have been a<\/p>\n
burst fracture or a serious compression injury. It would not have been a<\/p>\n
flexion injury. In the present case the evidence indicates that the injury<\/p>\n
was a flexion injury caused by the sudden forward hinging of the head<\/p>\n
on account of the head hitting the wall of the swimming pool. This<\/p>\n
injury is entirely consistent with the plaintiff’s case and is completely<\/p>\n
contraindicated if the version of the defendant, of the plaintiff diving<\/p>\n
into the pool and thereafter hitting the head on the floor of the pool, is<\/p>\n
to be accepted. Clearly, the cause of injury was as narrated by the<\/p>\n
plaintiff, that is, by jumping into the pool and not as suggested by the<\/p>\n
learned counsel for the defendant, that is, by diving. The counsel for<\/p>\n
the defendant was at pains to cross-examine the doctors and<\/p>\n
particularly PW4 Dr J. A. Smith and PW22 Dr Arjun Dass Sehgal with<\/p>\n
CS(OS) 1298\/1982                                              Page 36 of 64<\/span>
\n regard to the injury caused to the plaintiff being a compression injury<\/p>\n
or a flexion injury. According to the defendant, the plaintiff suffered a<\/p>\n
burst fracture and a compression injury which was consistent with the<\/p>\n
plaintiff having dived into the pool and hit her head on the floor of the<\/p>\n
pool. On the other hand, the plaintiff’s case was that she had suffered a<\/p>\n
flexion injury where the head hinges forward with great force.<\/p>\n
46.    I have already set out what PW4 Dr J. A. Smith stated in his<\/p>\n
testimony. He categorically stated that the injury caused to the plaintiff<\/p>\n
was not a burst fracture which is indicative of a compression injury.<\/p>\n
According to PW4 Dr J. A Smith, a burst fracture would be caused<\/p>\n
when a weight falls on the body or the body with weight falls to the<\/p>\n
ground in a vertical position. He stated that when a body strikes the<\/p>\n
object in an inclined angle and not at a 90 degree angle, it would cause<\/p>\n
a combination of flexion along with compression. The said witness<\/p>\n
stated that the injury in the present case was certainly one of flexion.<\/p>\n
He, however, clarified that when we know what happens to the anterior<\/p>\n
part of the vertebrae in a flexion injury then, there is a degree of<\/p>\n
compression occurring there. He, however, reiterated that the fracture<\/p>\n
in the instant case was a flexion fracture. The injury in the present case<\/p>\n
was described by the said witness as one where the head moves<\/p>\n
CS(OS) 1298\/1982                                              Page 37 of 64<\/span>
\n forward and the chin almost touches the chest. This is what is known<\/p>\n
as forward hinging.\n<\/p>\n<\/p>\n
47.    As mentioned above, both Dr J. A. Smith and Dr Arjun Dass<\/p>\n
Sehgal were subjected to extensive cross-examination on the point as to<\/p>\n
whether the injury was a flexion injury or a compression injury. From<\/p>\n
the testimonies of both these witnesses, it is apparent that they have not<\/p>\n
been shaken from their stand that the injury was a flexion injury caused<\/p>\n
by forward hinging of the head. In such a situation, the hypothesis of<\/p>\n
the plaintiff having dived into the pool is clearly contraindicated.<\/p>\n
48.    In an attempt to support the hypothesis that the plaintiff dived<\/p>\n
into the pool, the defendant also produced DW2 Mr Balram Verma in<\/p>\n
the witness box. DW2 Mr Balram Verma was stated to have been<\/p>\n
posted at Akbar Hotel as a lifeguard. According to him, he had joined<\/p>\n
ITDC on 10.03.1978. Mr Verma stated that on 05.05.1978 he was<\/p>\n
present at the swimming pool in his lifeguard gear and the manager was<\/p>\n
sitting with him. One elderly man accompanied by two children, one<\/p>\n
of whom was a boy and the other was a girl, came to the pool, in a<\/p>\n
playful mood and they kept their towels near the very first umbrella on<\/p>\n
the pool. The boy and the girl were playing the game of catching each<\/p>\n
other. While doing so, the girl suddenly took a vertical dive in the<\/p>\n
shallow portion of the swimming pool. According to this witness, he<\/p>\n
CS(OS) 1298\/1982                                               Page 38 of 64<\/span>
\n immediately ran on seeing this incident and the other guests also<\/p>\n
shouted. The other guests, who were from Aeroflot, also helped him in<\/p>\n
holding the girl. According to him, he placed the girl on the floor on<\/p>\n
the edge of the pool and he found that there was a bump on the middle<\/p>\n
of the head of that girl and it had become reddish. He stated that he<\/p>\n
obtained ice and bandage from his office where first-aid articles were<\/p>\n
kept and then he applied ice and bandage on the head of that girl. He<\/p>\n
stated that he as well as the girl’s father asked her to shake her leg but<\/p>\n
she was not able to move her leg and she started weeping.<\/p>\n
49.    If this witness is to be believed, the plaintiff took a vertical dive<\/p>\n
in the shallow portion of the swimming pool. In his cross-examination,<\/p>\n
he was asked as to what was the distance between the wall of the pool<\/p>\n
and the place on the floor where the girl struck her head. His answer<\/p>\n
was — \u2015two feet\u2016. I am straightaway inclined to agree with Mr Madan<\/p>\n
Bhatia, the learned senior counsel who appeared on behalf of the<\/p>\n
plaintiff, that this would be a virtual impossibility. From the edge of a<\/p>\n
pool at the shallow end where the water was only 2′ 6” to 2′ 9” deep, it<\/p>\n
would be impossible for any person to take a vertical dive and hit his or<\/p>\n
her head within two feet of the wall. According to the evidence on<\/p>\n
record, the plaintiff was about 5′ 6” in height. If she was standing on<\/p>\n
the edge of the pool in a stationary position, she would probably have<\/p>\n
to jump six feet into the air to enable her body to turn so that it could<\/p>\n
CS(OS) 1298\/1982                                               Page 39 of 64<\/span>
\n make a vertical impact with the water in the pool. This could not have<\/p>\n
been done and in fact was not done as no witness has testified to this.<\/p>\n
Apart from that, Mr Verma stated that the girl and boy were running<\/p>\n
and they were playing the game of catching each other and it was then<\/p>\n
that she took a vertical dive in the shallow portion of the swimming<\/p>\n
pool. When a person is in motion, it would be impossible for that<\/p>\n
person to have hit his head on the floor of the swimming pool within<\/p>\n
two feet of the edge. The momentum would take that person much<\/p>\n
ahead. Therefore, the theory propounded by this witness is only to be<\/p>\n
stated to be rejected.\n<\/p>\n<\/p>\n
50.    This witness cannot be believed also because he stated that there<\/p>\n
was a bump in the middle of the head of the girl and it had become<\/p>\n
reddish. There is no such evidence. Apart from this, he stated that he<\/p>\n
had bandaged the head of the girl. There is no corroborative evidence<\/p>\n
of this either. He stated that the father of the girl had not entered the<\/p>\n
swimming pool and he was near the counter.            But, in the written<\/p>\n
statement in paragraph 11, it is stated that the parents were at a distance<\/p>\n
relaxing in the chairs. Again, this witness states that the plaintiff’s<\/p>\n
father was accompanied only by his son and daughter (the plaintiff). In<\/p>\n
fact, it was suggested to the witness that Mr Beer was accompanied not<\/p>\n
only by his one son and one daughter but also his wife. The witness<\/p>\n
stated that this was wrong and he was accompanied only by his son and<\/p>\n
CS(OS) 1298\/1982                                               Page 40 of 64<\/span>
\n daughter. This statement also contradicts what is stated in the written<\/p>\n
statement where it is admitted that the parents were at a distance<\/p>\n
relaxing in the chairs. This witness has also stated that the girl had<\/p>\n
stretched her hands while diving into the pool. But, again, there is no<\/p>\n
injury caused to the hands of the plaintiff.       The testimony of this<\/p>\n
witness cannot be believed for two reasons. The first being that he is<\/p>\n
unreliable and is not telling the truth and the second being that his<\/p>\n
version of the incident is practicably not possible.<\/p>\n
51.    This leaves me to discuss the testimony of DW1 Dr G.G.<\/p>\n
Manshramani. This witness has tried to assist the defendant by stating<\/p>\n
that the external injury caused to the plaintiff on the head could never<\/p>\n
have been caused when a person falls backwards. This witness has<\/p>\n
apparently contradicted himself at various places in the course of his<\/p>\n
cross-examination. For example, a question was put to him that when a<\/p>\n
person dives into the pool and his head hits the bottom of the pool but<\/p>\n
his head does not hinge forward, would there still be force of flexion?<\/p>\n
He answered–yes. Then a question was put to him what force is<\/p>\n
flexion?      He answered–when the head hinges forward?            So this<\/p>\n
witness says in answer to the first question that even when the head<\/p>\n
does not hinge forward, there will still be force of flexion and in answer<\/p>\n
to the second question, he says that the force of flexion is there when<\/p>\n
the head hinges forward. The witness was then asked that if a person<\/p>\n
CS(OS) 1298\/1982                                              Page 41 of 64<\/span>
\n jumps into the pool, slips and falls backward and his head hits a wall at<\/p>\n
the back with great force, his head may suffer both flexion and<\/p>\n
compression injuries?    To this, the witness answered–it will mainly<\/p>\n
be flexion injury. In other words, even from this witness it has been<\/p>\n
elicited in cross-examination that the injury caused by jumping and<\/p>\n
slipping and then hitting the head on the wall of the pool would be a<\/p>\n
flexion injury.\n<\/p>\n<\/p>\n
52.    However, this witness, according to me, cannot be relied upon<\/p>\n
and is an interested witness. He had accompanied the counsel for the<\/p>\n
defendant to Australia and even played a role in helping the learned<\/p>\n
counsel for the defendant in cross-examining the plaintiff’s witnesses in<\/p>\n
Australia. Furthermore, he is not an expert in the sense that he is not<\/p>\n
even a surgeon, what to speak of being a neurosurgeon. He has no<\/p>\n
experience with regard to spinal injuries and has admitted to only<\/p>\n
having taught neurology as a part of medicine and not as a specialty.<\/p>\n
He has admitted that he was engaged by ITDC to go to Brisbane,<\/p>\n
Australia and had actively assisted the counsel for the defendant.<\/p>\n
53.    The learned counsel for the defendant drew my attention to the<\/p>\n
medical record of the Holy Family Hospital, New Delhi. He submitted<\/p>\n
that Exhibit PW19\/2 is the MLC pertaining to the plaintiff. The history<\/p>\n
indicated in the MLC reads as under:-\n<\/p>\n
CS(OS) 1298\/1982                                             Page 42 of 64<\/span>\n<\/p>\n
        \u2015H\/o sustained injury when Pt. dived into swimming pool
\n       at about 6:45 pm today………\u2016<\/p>\n
He then referred to Exhibit PW19\/3 which is the case summary and<\/p>\n
discharge record, which again indicates the alleged history to be that<\/p>\n
the patient sustained injury \u2015after diving into swimming pool\u2016. Exhibit<\/p>\n
PW19\/4 is the history sheet of the plaintiff at Holy Family Hospital,<\/p>\n
New Delhi. In this document also it is indicated that the \u2015patient dived<\/p>\n
into pool in Akbar Hotel, hit her head on the floor of the pool and<\/p>\n
sustained injury over the head…………\u2016. Exhibit PW19\/6, which is<\/p>\n
the consultation record of the same hospital, also indicates \u2015dived in<\/p>\n
swimming pool\u2016. Exhibit PW19\/5, which is part of the consultation<\/p>\n
record, again refers to \u2015diving\u2016. This noting is apparently signed by<\/p>\n
Dr A. D. Sehgal. However, Exhibit PW2\/34, which is another<\/p>\n
document from the hospital record, indicates that the plaintiff \u2015jumped<\/p>\n
into pool\u2016. From the aforesaid documents barring Exhibit PW2\/34, the<\/p>\n
learned counsel for the defendant, submitted that it was apparent that it<\/p>\n
was a diving incident and not a jumping incident as alleged by the<\/p>\n
plaintiff. However, what is important to remember is that the first<\/p>\n
document in the series of documents is Exhibit PW19\/2, which is the<\/p>\n
MLC which was prepared at the hospital.          Dr B.B Middha, who<\/p>\n
prepared the said MLC, has not been examined as a witness and,<\/p>\n
therefore, it cannot be determined as to who told him about the history<\/p>\n
of the patient. All the other documents from the hospital record are<\/p>\n
CS(OS) 1298\/1982                                             Page 43 of 64<\/span>
\n merely reproductions of what was first recorded in the MLC Exhibit<\/p>\n
PW19\/2. When the source itself is unclear, these documents would not<\/p>\n
be determinative of whether the plaintiff dived into the swimming pool<\/p>\n
or jumped into the swimming pool. In fact, Exhibit PW2\/34, which is<\/p>\n
in Dr Seghal’s hand, records that the plaintiff jumped into the pool. In<\/p>\n
cross-examination of Dr Sehgal, this aspect of the matter has not been<\/p>\n
questioned. In any event, I agree with the submission made by the<\/p>\n
learned counsel for the plaintiff that the exact manner in which the<\/p>\n
incident took place, in other words, whether it was the result of a dive<\/p>\n
or jump, was not of much consequence to the doctor and they were<\/p>\n
concentrating on and were merely concerned in treating the patient.<\/p>\n
Even the record of the hospital in Australia, as indicated in Dr Davies’s<\/p>\n
report shows the same history as that of having sustained the injury in a<\/p>\n
dive. But, that again is merely a reproduction of the hospital record at<\/p>\n
Holy Family Hospital. In fact, Dr Davies’s report shows that the injury<\/p>\n
is 6\u2016 long lacerated wound. This is ex facie wrong inasmuch as the<\/p>\n
admitted position is that wound on her head was a one inch long<\/p>\n
contused lacerated wound. Consequently, not much reliance, if at all,<\/p>\n
can be placed on Dr Davies’s report. It is, therefore, clear that the<\/p>\n
hospital record referred to above cannot be relied upon to establish as<\/p>\n
to whether the plaintiff dived into the pool or jumped into the pool. I<\/p>\n
have already indicated that, based upon the testimonies of the plaintiff,<\/p>\n
CS(OS) 1298\/1982                                             Page 44 of 64<\/span>
\n PW2 Mr G. L. Beer and PW19 Mrs P. J. Beer as well as the evidence<\/p>\n
given by the doctors — PW4 Dr J.A Smith and PW22 Dr Arjun Dass<\/p>\n
Sehgal, the manner in which the injury was caused, stands established.<\/p>\n
The injury was caused by the fact that the plaintiff’s feet slipped on the<\/p>\n
floor of the swimming pool when she jumped into the pool in the<\/p>\n
shallow end.\n<\/p>\n
54.    As a result of the aforesaid discussion, it has been established on<\/p>\n
the part of the plaintiff that the cause of injury was the fact that the<\/p>\n
plaintiff jumped into the pool at the shallow end and that her feet slid<\/p>\n
forward on account of the bottom of the pool being slippery. This<\/p>\n
resulted in her head hitting the side of the pool which ultimately<\/p>\n
resulted in her becoming a quadriplegic. The theory and hypothesis of<\/p>\n
diving into the pool which had been put forward by the learned counsel<\/p>\n
for the defendant, both in the course of cross-examination of the<\/p>\n
plaintiff’s witnesses as well as by the defendant’s witnesses and in the<\/p>\n
course of arguments before this Court, is clearly not established. It is<\/p>\n
not established on account of the evidence on record nor is it<\/p>\n
established on account of probabilities. The plaintiff, admittedly, was<\/p>\n
an expert swimmer. She would not have dived into the pool vertically<\/p>\n
downwards at the shallow end knowing the water to be only 2-1\/2 to 3<\/p>\n
feet deep. In any case, even if she had dived into the pool, she could<\/p>\n
have avoided impact on her head by pushing away with her hands<\/p>\n
CS(OS) 1298\/1982                                              Page 45 of 64<\/span>
\n which are normally extended in the case of a dive. There is evidence of<\/p>\n
her swimming coach to indicate that she was well trained in all<\/p>\n
swimming manoeuvres which include diving and if she were to dive,<\/p>\n
she would have adopted the correct posture, namely, with the hands<\/p>\n
extended ahead to protect from the impact of the water. All these<\/p>\n
factors clearly establish that the assertion made by the plaintiff with<\/p>\n
regard to the manner in which the injury was caused, stands established<\/p>\n
and the hypothesis propounded by the defendant stands disproved.<\/p>\n
Were the tiles slippery and the pool not properly maintained?\n<\/p>\n
55.    The plaintiff’s case is that glazed tiles were used in the<\/p>\n
swimming pool. This fact has not been denied by the defendant. The<\/p>\n
plaintiff’s case further is that not only were glazed tiles used in the<\/p>\n
swimming pool but that those tiles had become slippery on account of<\/p>\n
slime accumulating thereon as a result of algae growth because the pool<\/p>\n
was not properly maintained by the defendant. The defendant, however,<\/p>\n
has denied that the pool was not properly maintained. The defendant<\/p>\n
also denied that the tiles were slippery.\n<\/p>\n<\/p>\n
56.    Certain photographs of the pool were taken after some months<\/p>\n
and they have been placed on record. Those photographs were taken in<\/p>\n
the winter months when the pool was not operational and there was no<\/p>\n
water in it.       There is no doubt that those photographs do indicate<\/p>\n
accumulation of dirt in the grouting which could possibly include algae<\/p>\n
CS(OS) 1298\/1982                                            Page 46 of 64<\/span>
\n also. But, these photographs cannot be used by the plaintiff inasmuch<\/p>\n
as they do not pertain to the period when the pool was operational, that<\/p>\n
is, during the summer months. The incident took place on 05.05.1978<\/p>\n
when the pool was fully operational. The question of the pool floor<\/p>\n
being slippery on account of poor maintenance has to be examined<\/p>\n
keeping this in mind.\n<\/p>\n<\/p>\n
57.    PW14 K. R. Dobson has been brought to the witness box by the<\/p>\n
plaintiff as an expert on swimming pool maintenance. The said witness<\/p>\n
has a Bachelor of Applied Sciences degree in Applied Chemistry from<\/p>\n
the Queensland Institute of Technology. He is also a member of the<\/p>\n
Royal Australian Chemical Institute and a member of Clean Air<\/p>\n
Society of Australia. In his role as Chief Chemist of the Department of<\/p>\n
Chemical Engineering at the University, he stated that he acts as a<\/p>\n
consultant for the university in a number of enquiries for the past 13<\/p>\n
years or so. He stated that in connection with problems that people<\/p>\n
meet in maintaining swimming pools, he has been consulted.<\/p>\n
According to him, the more common occurrence in maintenance of the<\/p>\n
swimming pool is algal growth or growth of organisms in the pool. He<\/p>\n
stated that his main area of specialization was the manner in which<\/p>\n
certain chemicals affect algal growth in pools. According to him, algal<\/p>\n
growth would occur in almost all pools at some level. He stated that<\/p>\n
there are a number of techniques for maintenance of pools and the most<\/p>\n
CS(OS) 1298\/1982                                            Page 47 of 64<\/span>
\n common technique is that of the maintenance of levels of hypochloride<\/p>\n
or chlorine. He further submitted that for proper maintenance of a<\/p>\n
pool, the growth of the algal material is not per se checked but what is<\/p>\n
checked are the levels of chemicals which are maintained in the pool to<\/p>\n
keep the algal level at bay.\n<\/p>\n<\/p>\n
58.    PW14 Mr K. R. Dobson submitted that there are three aspects<\/p>\n
which are associated with the maintenance of a pool to keep algal<\/p>\n
growth at bay.     The first is the measurement and maintenance of<\/p>\n
chlorine levels in the pool. The second is filtration of water. Most<\/p>\n
swimming pools have a pump and a filter associated with it to filter out<\/p>\n
any growth or particles that may be present in the water. The third is<\/p>\n
brushing of the surface of the pool. It is at the surfaces where algal<\/p>\n
growth occurs.\n<\/p>\n<\/p>\n
59.    The said witness further stated that it was possible for algal<\/p>\n
growth to occur in a pool even though the water might be clear. He<\/p>\n
stated that in the early stages of algal growth, when the algae are first<\/p>\n
starting to grow on the surface of the pool, the water will still appear<\/p>\n
clear whilst the algae are growing. Those parameters are usually met if<\/p>\n
the chlorine levels drop to a low level. This can either happen because<\/p>\n
of allowing the chlorine levels to drop, or in some cases in warm<\/p>\n
climates there is a cycle in the levels of chlorine associated with the<\/p>\n
CS(OS) 1298\/1982                                             Page 48 of 64<\/span>
\n maintenance of the pool. He further stated that this might also happen<\/p>\n
on account of inadequate brushing of the surface of the pool.<\/p>\n
Mr Dobson reiterated that the three issues associated with the<\/p>\n
maintenance of the swimming pool are maintenance of chlorine level,<\/p>\n
filtration and brushing. The correct maintenance of a swimming pool<\/p>\n
incorporates the combination of all three of those techniques and failure<\/p>\n
to observe the correct maintenance procedures in all those three areas<\/p>\n
could lead to problems with algal growth.\n<\/p>\n<\/p>\n
60.    He also submitted that chlorine chemistry is complex and that<\/p>\n
one of the parameters affecting the maintenance of levels of chlorine in<\/p>\n
a swimming pool, is temperature. The higher the temperature the faster<\/p>\n
chlorine will be consumed. He stated that at temperatures greater than<\/p>\n
25\u00b0C, it would be strongly advisable that chlorine levels be checked<\/p>\n
twice daily. The witness further stated that the most common colour of<\/p>\n
algae is green. Though, in various cases the colour can be darker<\/p>\n
almost to a black colour and the intensity of the colour can vary with<\/p>\n
the strain of algal growth that is present and the severity of the growth.<\/p>\n
Importantly, he stated that in many cases in the early stages of algal<\/p>\n
growth, it may not be in fact visible through the water. He also stated<\/p>\n
that, as a rule, at the shallow end algal growth will generally occur<\/p>\n
before it will in the deeper end.\n<\/p>\n
CS(OS) 1298\/1982                                              Page 49 of 64<\/span>\n<\/p>\n
 61.    The testimony of Mr Lindsay Ian Sly also indicates that the algal<\/p>\n
growth takes place because of sunlight. Mr G. L. McDonald stated that<\/p>\n
ceramic tiles were inherently prone to accidents as they are slippery and<\/p>\n
growth of algae would increase the possibility of slipping. He also<\/p>\n
stated that usually glazed tiles are not used for Olympic size pools.<\/p>\n
62.    From the above evidence, it is apparent that glazed tiles are<\/p>\n
inherently slippery and this would be further accentuated by the<\/p>\n
presence of algal material. The growth of algae in the swimming pool<\/p>\n
occurs first in the shallow end and later at the deep end. The growth of<\/p>\n
algae is controlled by proper pool maintenance procedures.               The<\/p>\n
procedures include: (i) maintaining a proper chlorine level; (ii)<\/p>\n
filtration of water; and (iii) brushing of the pool surface. If there is any<\/p>\n
deficiency in any of the three measures, then growth of algae would<\/p>\n
result particularly in swimming pools which are exposed to bright<\/p>\n
sunlight such as in India in the month of May. It is also indicated that<\/p>\n
in the initial stages when there is growth of algae in the swimming<\/p>\n
pool, it may not even be visible and the water may be clear but the<\/p>\n
surface of the swimming pool which includes the tiles on the floor<\/p>\n
would become slippery. Mr K. R. Dobson stated that initially it is the<\/p>\n
grouting area which is first affected by the algal growth. It is important<\/p>\n
to remember that Mr Dobson said that in temperatures which exceed<\/p>\n
CS(OS) 1298\/1982                                               Page 50 of 64<\/span>
\n 25\u00b0C, the chlorine level should be checked at least twice a day because<\/p>\n
chlorine gets consumed much faster in higher temperatures.<\/p>\n
63.    All these factors coupled with the testimony of the plaintiff and<\/p>\n
that of her father Mr G.L. Beer and her mother Mrs P.J. Beer, point in<\/p>\n
the direction of the tiles in the floor of the swimming pool being<\/p>\n
slippery on account of improper maintenance of the swimming pool.<\/p>\n
This could, of course, be countered by the defendant by leading<\/p>\n
evidence to establish and show that the pool was properly maintained.<\/p>\n
64.    The witness produced on behalf of the defendant to testify as to<\/p>\n
the maintenance of the pool was DW2 Mr Balram Verma. I have<\/p>\n
already indicated above that this witness is not reliable. However,<\/p>\n
assuming that what he says is correct, let me examine as to whether his<\/p>\n
testimony reveals that the pool was properly maintained.              DW2<\/p>\n
Mr Balram Verma stated that he was appointed as a lifeguard at Akbar<\/p>\n
Hotel and he holds a degree in physical education. He stated that the<\/p>\n
duty of a lifeguard at Akbar Hotel was first to see on arrival at the pool<\/p>\n
that the pool was clean. Thereafter, his duty was to sit there to ensure<\/p>\n
that the life of any guest swimming in the pool was not at risk. He<\/p>\n
stated that the procedure for cleaning of the pool is that in the evening<\/p>\n
bleaching powder and alum are put into the water which makes the dust<\/p>\n
settle at the bottom of the pool. Next day, in the morning, the brush<\/p>\n
CS(OS) 1298\/1982                                              Page 51 of 64<\/span>
\n which is attached to the suction cleans the dust on the bottom of the<\/p>\n
pool and the dirty water is pumped out of the pool. The housemen also<\/p>\n
mop the entire area around the swimming pool starting from the change<\/p>\n
room before any guest is allowed to enter the swimming pool. He<\/p>\n
stated that the board at the swimming pool displays \u2015pool closed\u2016 in the<\/p>\n
morning and the same is removed only after the cleaning has been done<\/p>\n
and after he has checked the pool. He further stated that the engineer of<\/p>\n
the hotel had given him strips of paper in order to check the chemicals<\/p>\n
in the water of the pool. The strip of paper had a number of colours on<\/p>\n
its upper part and lower part. After dipping the same into the water of<\/p>\n
the pool, he used to match the colour of the strip with the colours<\/p>\n
shown on the upper part of the strip. In case the colour of the paper<\/p>\n
strip dipped into the water of the pool matched the colour at serial No.<\/p>\n
7 or 8 of the upper part of the strip, it implied that the water had been<\/p>\n
properly chlorinated. However, this witness in his cross-examination<\/p>\n
does not appear to know anything about algae. When he was asked as<\/p>\n
to under what circumstances algae get deposited on the floor of the<\/p>\n
swimming pool, he stated that he did not know. With regard to the<\/p>\n
photographs which were shown to him, which clearly indicate algae<\/p>\n
growth and deposits, the said witness stated that the photographs were<\/p>\n
taken when the pool had been closed and in winter time.<\/p>\n
CS(OS) 1298\/1982                                             Page 52 of 64<\/span>\n<\/p>\n
 65.    This witness, I have already indicated, cannot be believed.             In<\/p>\n
any event, he does not have any specialized knowledge with regard to<\/p>\n
management of algal growth in the swimming pool. The fact of the<\/p>\n
matter is that there is evidence to indicate that the floor of the<\/p>\n
swimming pool was slippery and it is because of that the plaintiff<\/p>\n
suffered the injury. The floor of the swimming pool would not have<\/p>\n
been slippery had the pool been properly maintained. It is at this<\/p>\n
juncture that the principle of res ipsa loquitur can also be employed.<\/p>\n
That is a rule of evidence which is employed when there is otherwise<\/p>\n
no direct material on a particular aspect of the matter. Since the floor<\/p>\n
of the swimming pool was not examined on the date of the incident<\/p>\n
itself and samples were not taken on that date, there is no direct<\/p>\n
evidence to indicate that there was algal growth in the pool or that there<\/p>\n
was other slimy material on the floor of the pool. It is in circumstances<\/p>\n
such as this that the principle of res ipsa loquitur is applied as a rule of<\/p>\n
evidence, because the things speak for themselves. Res ipsa loquitur is<\/p>\n
a Latin phrase which is defined in Black’s Law Dictionary in the<\/p>\n
following words: \u2015The thing speaks for itself.\u2016 The doctrine of res ipsa<\/p>\n
loquitur is described in detail in a decision of this Court in Klaus<\/p>\n
Mittelbachert v East India Hotels Ltd : 65 (1997) DLT 428, which<\/p>\n
reads as under:-\n<\/p>\n
CS(OS) 1298\/1982                                               Page 53 of 64<\/span>\n<\/p>\n
                \u2015Under the doctrine of res ipsa loquitur a plaintiff
\n               establishes a prima facie case of negligence where (1)
\n               it is not possible for him to prove precisely what was
\n               the relevant act or omission which set in train the
\n               events leading to the accident, and (2) on the
\n               evidence as it stands at the relevant time it is more
\n               likely than not that the effective cause of the accident
\n               was some act or omission of the defendant or of
\n               someone for whom the defendant is responsible,
\n               which act or omission constitutes a failure to take
\n               proper care for the plaintiff’s safety. There must be
\n               reasonable evidence of negligence. However, where
\n               the thing which causes the accident is shown to be
\n               under the management of the defendant or his
\n               employees, and the accident is such as in the ordinary
\n               course of things does not happen if those who have
\n               the management use proper care, it affords
\n               reasonable evidence, in the absence of explanation by
\n               the defendant, that the accident arose from want of
\n               care. Three conditions must be satisfied to attract
\n               applicability of res ipsa loquitur: (i) the accident
\n               must be of a kind which does not ordinarily occur in
\n               the absence of someone’s negligence; (ii) it must be
\n               caused by an agency or instrumentality within the
\n               exclusive control of the defendant; (iii) it must not
\n               have been due to any voluntary action or contribution
\n               on the part of the plaintiff. (See Ratanlal & Dhirajlal
\n               on Law of Torts , edited by Justice G.P. Singh, 22nd
\n               edition 1992, pp 499-501 and the Law of Negligence
\n               by Dr Chakraborti, 1996 edition, pp 191-192.)\u2016<\/p>\n
In the light of the aforesaid decision, it needs to be examined as to<\/p>\n
whether the above conditions apply to the present case. First of all, it<\/p>\n
has to be determined as to whether the accident is of a kind which does<\/p>\n
not ordinarily occur in the absence of someone’s negligence. It is<\/p>\n
common knowledge that people and most particularly younger persons<\/p>\n
jump into the swimming pool.             Unless and until there is some<\/p>\n
CS(OS) 1298\/1982                                                 Page 54 of 64<\/span>
\n negligence, the injury of the kind indicated in the present case would<\/p>\n
not ordinarily occur. When one jumps into the swimming pool in the<\/p>\n
shallow end, one does not expect that on the feet reaching the floor of<\/p>\n
the swimming pool, the same would slip on account of the floor being<\/p>\n
slippery. Ordinarily, when one jumps into the swimming pool, at the<\/p>\n
shallow end, the feet do hit the floor of the pool but they remain firmly<\/p>\n
grounded. The incident of the kind involved in the present case could<\/p>\n
only occur on account of the slippery floor. This takes me to the<\/p>\n
second aspect and that is that the accident must have been caused by an<\/p>\n
agency or instrumentality within the exclusive control of the defendant.\n<\/p><\/blockquote>\n
The defendant was entirely responsible for the maintenance and<\/p>\n
operation of the same and therefore this condition is also satisfied. The<\/p>\n
third condition is that the accident must not have been caused by any<\/p>\n
voluntary action or contribution on the part of the plaintiff. Here,<\/p>\n
again, I find that there was no contributory negligence on the part of the<\/p>\n
plaintiff. The plaintiff merely jumped into the swimming pool in the<\/p>\n
shallow end as she may have done on hundreds of occasions being a<\/p>\n
person more than accustomed to swimming and one who spent many<\/p>\n
hundreds of hours in and around the swimming pool.\n<\/p>\n<\/p>\n
66.    It is, therefore, clear that all the three conditions necessary for<\/p>\n
application of the doctrine of res ipsa loquitur stand satisfied.<\/p>\n
CS(OS) 1298\/1982                                               Page 55 of 64<\/span>\n<\/p>\n
 67.    Once this happens, the burden shifts to the defendant to rebut the<\/p>\n
evidence of negligence.         In Municipal Corporation of Delhi v<\/p>\n
Subhagwanti & Ors: AIR 1966 SC 1750, the Supreme Court described<\/p>\n
the shifting of the burden, relying on Halsbury’s Laws of England,<\/p>\n
2nd Ed., Vol. 23, as under:-\n<\/p>\n<\/p>\n
            \u2015An exception to the general rule that the burden of
\n            proof of the alleged negligence is in the first instance
\n            on the plaintiff occurs wherever the facts already
\n            established are such that the proper and natural
\n            inference immediately arising from them is that the
\n            injury complained of was caused by the defendant’s
\n            negligence, or where the event charged as negligence
\n            \u2017tells its own story’ of negligence on the part of the
\n            defendant, the story so told being clear and
\n            unambiguous. To these cases the maxim res ipsa
\n            loquitur applies. Where the doctrine applies, a
\n            presumption of fault is raised against the defendant,
\n            which if he is to succeed in his defence, must be
\n            overcome by contrary evidence, the burden on the
\n            defendant being to show how the act complained of
\n            could reasonably happen without negligence on his
\n            part.\u2016<\/p>\n
The defendant has not provided any plausible explanation as to how the<\/p>\n
plaintiff could have suffered the injury that she did. Consequently, the<\/p>\n
defendant has failed to meet its burden of proof in showing as to how<\/p>\n
the plaintiff came to be injured without their negligence. Such burden<\/p>\n
not having been discharged, by employing the doctrine of res ipsa<\/p>\n
loquitur, it is clear that it was on account of the defendant’s negligence<\/p>\n
that the floor of the swimming pool was slippery on account of which<\/p>\n
the injury was sustained by the plaintiff.\n<\/p><\/blockquote>\n
CS(OS) 1298\/1982                                                Page 56 of 64<\/span><\/p>\n
 68.     In view of the foregoing discussion, issues No. 3-8 are decided in<\/p>\n
favour of the plaintiff and against the defendant.\n<\/p>\n
\nIssue No. 9:\n<\/p>\n
69.     This issue is concerned with the computation of the damages to<\/p>\n
which the plaintiff is entitled. The plaintiff has claimed a decree in the<\/p>\n
sum of    `   2,00,00,000\/- (rupees two crores) along with interest at the<\/p>\n
rate of 18% per annum on the said amount from the date of presentation<\/p>\n
of the plaint till its realization in favour of the plaintiff and against the<\/p>\n
defendant. The said amount of     `   2,00,00,000\/- has been claimed by the<\/p>\n
plaintiff on the following basis:-\n<\/p>\n
 i)      Expenses incurred by the plaintiff on\n         medical treatment and care in India\n         and Australia                               -       `   20,00,000.00\n\n ii)     Damages on account of physical pain,\n         mental anguish and psychological\n         anguish and loss of education               -       `   50,00,000.00\n\n iii)    Damages on account of loss of               -   `   1,30,00,000.00\n         earnings for the rest of her life\n                                           Total     -   `   2,00,00,000.00\n\n\n\n<\/pre>\n
Insofar as the expenses incurred on the medical treatment and care in<\/p>\n
India and Australia are concerned, certain bills and receipts have been<\/p>\n
produced in evidence. They are as follows:-\n<\/p>\n
CS(OS) 1298\/1982                                                    Page 57 of 64<\/span>\n<\/p>\n
 Sl. No.       Exhibit             Detail             Amount\n              No.                                    AUD \/`\n   1.         PW18\/2    Medical       aids     and   $ 814.50\n                        equipment supplied to\n                        plaintiff          through\n                        Queensland Department of\n                        Health- to be reimbursed\n   2.         PW18\/1             - Do -              $ 1011.50\n\n\n   3.         PW2\/3     Dr B. N Chopra                 ` 60\/-\n\n\n   4.         PW2\/4     Dr B. Ramamurthi             ` 4250\/-\n\n\n   5.         PW2\/8     Holy Family Hospital No.     ` 4042.50\n                        53121\n   6.         PW2\/10             - Do -              ` 2847.25\n\n                            Receipt No. 53627\n   7.         PW2\/11             - Do -              ` 2459.60\n\n                           Receipt No. 53907\n   8.         PW2\/12             - Do -               ` 2285\n\n                           Receipt dated 13.6.78\n   9.         PW2\/14             - Do -               ` 90.50\n\n\n   10.        PW2\/16       Receipt dated 22.08.78     ` 2925\n\n\n   11.        PW2\/17       Receipt dated 22.08.78     ` 2925\n\n\n   12.        PW2\/19       Dr Arjun Sehgal           ` 10500\n\n\n   13.        PW2\/20       Dr Arjun Sehgal           ` 12000\n\n\n   14.        PW2\/22       Dr Arjun Sehgal           ` 13916\n\n\n\n\nCS(OS) 1298\/1982                                       Page 58 of 64<\/span>\n    15.        PW2\/24      Dr (Mrs) Sehgal                     ` 8000\n\n\n   16.        PW2\/25     Ticket (Airline charges)             ` 7134\n\n\n   17.        PW2\/26   Chemist bill dated 3.6.78              ` 39.20\n\n\n   18.        PW2\/27   Medical equipment dated                 ` 435\n                       7.6.78\n   19.        PW2\/28   Hired refrigerator for                  ` 340\n                       hospital room on 10.5.78\n   20.        PW2\/29   Accommodation and                      $ 57.80\n                       meals for Dr Arjun Sehgal\n                       in Brisbane\n   21.        PW2\/30   Ambulance service on                     $ 50\n                       21.7.78\n   22.        PW2\/31             - Do -                         $ 50\n\n\n   23.        PW2\/32   Ambulance service on                     $ 30\n                       26.6.78\n   24.        PW2\/35   Various receipts for             $ 3500 (approx.)\n                       physiotherapy and\n                       Chiropractor charges in\n                       1978 and 1979.\n                       TOTAL in Indian rupees          ` 125000 (approx.)\n                       [after converting AUD           [` 74249.05 +\n                       into INR at the exchange        $ 5513.80 (=` 49,624.2)\n                       rate of 1 AUD = ` 9             = ` 123873.25]\n                       (approx.) in 1982\n\n\n\nThe total of which comes to approximately       `   1,25,000\/-. It may be\n\n<\/pre>\n
noted that the amounts paid in Australian Dollars have been converted<\/p>\n
to Indian rupees at the exchange rate of    `   9 (approximately) = 1<\/p>\n
Australian Dollar (AUD), which is the equivalent exchange rate<\/p>\n
CS(OS) 1298\/1982                                                Page 59 of 64<\/span>
\n prevalent in 1982. It may also be pointed out that the payment for<\/p>\n
Australian Dollars have been made during the year 1979-1984 and,<\/p>\n
therefore, the rate as applicable in the year 1982 has been taken as an<\/p>\n
average. However, the amount claimed in the plaint under the head of<\/p>\n
expenses incurred for medical treatment and care in India and Australia<\/p>\n
is to the extent of   `   20,00,000\/- (rupees twenty lacs). I may also note<\/p>\n
that PW1 (S. L. Beer) as well as PW2 (Mr G. L. Beer) have deposed<\/p>\n
with regard to the expenses incurred by them. PW2 Mr G. L. Beer has<\/p>\n
stated that he incurred medical expenses of Holy Family Hospital as<\/p>\n
well as of Dr Sehgal and the attendant charges. He stated that Dr<\/p>\n
Sehgal’s air fare to and fro Australia was also paid by him and he had<\/p>\n
to incur the additional expense of seats in Thai International Airways<\/p>\n
because of the stretcher on which his daughter (the plaintiff) was to be<\/p>\n
transported from New Delhi to Australia. There were other expenses<\/p>\n
attached to the transfer in Sydney and their stay there as well as<\/p>\n
ambulance transport. Expenses were incurred on account of visiting<\/p>\n
English Neurosurgeon, Dr Wilson and other expenses for doctor \/<\/p>\n
Chiropractor in Brisbane. He also had to make several alterations to his<\/p>\n
house, such as alteration to the toilet, widening of doorways, placing of<\/p>\n
protective covers over sections of carpet because of the wheelchair<\/p>\n
which was used by his daughter. He also had to incur the expense of<\/p>\n
building all the physiotherapy equipment and of prosthetic appliances.<\/p>\n
CS(OS) 1298\/1982                                               Page 60 of 64<\/span>
\n He also had to establish a specialized carport and had to construct<\/p>\n
ramps so that the plaintiff could enter and exit the car. Because of the<\/p>\n
treatment, which his daughter was receiving, he had to maintain<\/p>\n
himself and his son in Brisbane and his wife and daughter in<\/p>\n
Melbourne. He stated that the expenditure incurred by him up to 1982,<\/p>\n
when he filed the suit, on medical expenditure under various heads and<\/p>\n
other expenditure for the care of the plaintiff would amount to<\/p>\n
approximately Australian Dollars 1,50,000. Thus, according to the<\/p>\n
testimony of PW2 (Mr G. L. Beer), an amount of approximately<\/p>\n
`   13,50,000\/- (as per the said exchange rate of       `   9 = 1 AUD) was<\/p>\n
incurred under the head of expenses incurred for medical treatment and<\/p>\n
care in India and Australia. However, I find that the amount mentioned<\/p>\n
in the bills and receipts, which have been exhibited, is only `1,25,000\/-.<\/p>\n
Considering the fact that not all bills and receipts may have been kept, I<\/p>\n
feel that the expenditure incurred under the head medical treatment and<\/p>\n
care in India and Australia ought to be assessed at about        `   5,00,000\/-<\/p>\n
(rupees five lacs) instead of what is claimed in the plaint.<\/p>\n
70.     With regard to the quantification of damages on account of<\/p>\n
physical pain, mental anguish and psychological anguish as well as loss<\/p>\n
of education, I feel that the figure of   `   50,00,000\/- (rupees fifty lacs),<\/p>\n
CS(OS) 1298\/1982                                                  Page 61 of 64<\/span>
\n which has been quantified and claimed by the plaintiff, is a reasonable<\/p>\n
figure and, therefore, the same ought to be allowed.<\/p>\n
71.    I am left with quantifying the damages on account of loss of<\/p>\n
earnings for the rest of her life. It has come in the evidence of both the<\/p>\n
plaintiff as PW1 and her father Mr G. L. Beer (PW2) that under normal<\/p>\n
circumstances, the plaintiff would have entered the workforce at the<\/p>\n
age of about 21 years. However, because of the incident, her education<\/p>\n
was derailed, which she was able to complete much later and that she<\/p>\n
started work at the age of 26 years.     Thus, there was a clear loss of<\/p>\n
income for five years between the ages 21 and 26. Apart from this, the<\/p>\n
plaintiff has deposed that on the date of her deposition in 1991 she was<\/p>\n
earning about Australian Dollars 30,000 per annum. It has also come<\/p>\n
in evidence that had she not suffered the severe handicap of being a<\/p>\n
quadriplegic, her income would have been between Australian Dollars<\/p>\n
45,000 to 50,000 per annum. It has also been stated in her deposition<\/p>\n
that because of the fact that she was a quadriplegic, her work life<\/p>\n
would, in all likelihood, not extend beyond the age of 45 years whereas,<\/p>\n
normally, she would have worked up to the age of 65 years. Exhibit<\/p>\n
PW6\/1 is a life expectancy certificate which indicates that in Australia<\/p>\n
a female born on 24.01.1961 would be expected to live up to the age of<\/p>\n
approximately 80 years. This means that once she retires from work,<\/p>\n
she would have to spend many years on pension alone which would,<\/p>\n
CS(OS) 1298\/1982                                              Page 62 of 64<\/span>
\n according to her testimony, not be sufficient to enable her to live<\/p>\n
independently because as per her testimony, she would also require<\/p>\n
somebody to provide house-keeping services as well have a live-in<\/p>\n
attendant to see to her day-to-day needs. Consequently, the figure of<\/p>\n
`   1,30,00,000\/- was claimed as damages on account of loss of earnings<\/p>\n
for the rest of her life.\n<\/p>\n<\/p>\n
72.      Assuming that on an average the plaintiff would earn 45,000<\/p>\n
Australian Dollars per annum throughout her period of employment,<\/p>\n
her total earnings, under normal circumstances, would have been<\/p>\n
45,000 x 44 = 19,80,000 Australian Dollars. The period of 44 years<\/p>\n
has been taken on the assumption that she would start work at the age<\/p>\n
of 21 years and continue to work, under normal circumstances, till the<\/p>\n
age of 65 years. She has stated that she was earning 30,000 Australian<\/p>\n
Dollars and that she has been working since the age of 26 years and<\/p>\n
would be expected to continue to work till she attained the age of 45<\/p>\n
years. Thus, during these 19 years, she would have earned 19 x 30,000<\/p>\n
= 5,70,000 Australian Dollars. Consequently, the loss of earnings<\/p>\n
would be 14,10,000 Australian Dollars (19,80,000 – 5,70,000). The<\/p>\n
said amount converted into Indian rupees at the exchange rate of ` 9 = 1<\/p>\n
AUD as prevalent in 1982 would amount to            `   1,26,90,000\/- (rounded<\/p>\n
off to   `   1,27,00,000\/-). This amount very closely matches the amount<\/p>\n
of damages of      `   1,30,00,000\/- (rupees one crore thirty lacs) which the<\/p>\n
CS(OS) 1298\/1982                                                   Page 63 of 64<\/span>
\n plaintiff has claimed in the present suit. In the result, the plaintiff is<\/p>\n
entitled to – (i)   `   5,00,000\/- (rupees five lacs) on account of expenses<\/p>\n
incurred towards medical treatment and care in India and Australia; (ii)<\/p>\n
`   50,00,000\/- (rupees fifty lacs) towards damages on account of<\/p>\n
physical pain, mental anguish and psychological anguish and loss of<\/p>\n
education; and (iii) ` 1,27,00,000\/- (rupees one crore twenty seven lacs)<\/p>\n
on account of damages for loss of earnings for the rest of her life. The<\/p>\n
total sum of which comes to        `   1,82,00,000\/- (rupees one crore eighty<\/p>\n
two lacs) as on the date of the filing of the suit.\n<\/p>\n<\/p>\n
73.     Thus, the plaintiff is entitled to a decree in the sum of<\/p>\n
`   1,82,00,000\/- (rupees one crore eighty two lacs) along with simple<\/p>\n
interest thereon at the rate of 6% per annum w.e.f 22.01.1982 till the<\/p>\n
date of the decree and future simple interest on the said amount at the<\/p>\n
rate of 10% per annum till its realization. It is decreed accordingly.<\/p>\n
The formal decree be drawn up at the earliest.\n<\/p>\n<\/p>\n
                                            BADAR DURREZ AHMED
\n                                                  (JUDGE)
\nMARCH 03, 2011
\nSR<\/p>\n
CS(OS) 1298\/1982                                                 Page 64 of 64<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Susan Leigh Beer vs India Tourism Development … on 3 March, 2011 Author: Badar Durrez Ahmed 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-199811","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nSusan Leigh Beer vs India Tourism Development ... on 3 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/susan-leigh-beer-vs-india-tourism-development-on-3-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Susan Leigh Beer vs India Tourism Development ... on 3 March, 2011 - 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