TaxTMI 
TaxTMI 
2023 (2) TMI 653
X X X X Extracts X X X X
X X X X Extracts X X X X
....the "deceased writ petitioner" unless the context requires otherwise. 2. The deceased writ petitioner, who suffered a head injury as a result of the Bank's sign board falling on his head, had sought compensation through a writ action i.e., WP(C) 499/2014, which led to the passing of the impugned judgment. 2.1. It is important to note that the writ petition has not been disposed of, as the learned Single Judge had issued directions for constituting a Medical Board to evaluate the bills tendered by the deceased writ petitioner concerning his medical treatment and the expenses that he would have had to incur during his life span. The second limb of this direction, as is obvious, has been rendered redundant given the writ petitioner's death during the pendency of the proceedings. Background: 3. Before we proceed further, it is relevant to briefly set out the broad facts which led to the deceased writ petitioner approaching this court by way of a petition under Article 226 of the Constitution. 4. The deceased writ petitioner who ran a modest broking business concerning the sale and purchase of immovable assets, on the fateful day i.e., 22.05.2011, at about 04.00 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....liable for the injuries caused to the deceased writ petitioner due to its signboard falling on his head. (ii) The FIR resulted in a criminal case being lodged, in which the Manager of the Bank was arrayed as the accused. The criminal case i.e., CC No. 2032958/2016 ended up in the Bank Manager's acquittal. The trial court gave the benefit of doubt to the accused and thus held that the incident could have occurred due to reasons other than the negligence of the accused. The judgment acquitting the Bank manager was rendered by the trial court on 07.12.2018. (iii) The Bank had preferred two interlocutory applications before the learned Single Judge i.e., CM No. 12613/2019 and CM No. 12649/2019. Via CM No. 12613/2019 the Bank had sought the impleadment of an entity going by the name Adworld Graphics Ltd. [hereafter referred to as "AGIPL"]; the entity responsible for fixing the signboard, which fell on the deceased writ petitioner's head causing injuries. The other application i.e., CM No. 12649/2019 was filed by the Bank to have the files of the criminal case placed before the learned Single Judge. Both these applications were dismissed by the learned Single Judge via orde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as a tort action and hence in defence all that the Bank had to place before the court was a reasonable explanation for the incident in issue, which was equally consistent with the presence as well as the absence of negligence. Thus, once such a reasonable explanation was furnished by the Bank, the learned Single Judge could not have invoked the doctrine of res ipsa loquitur to conclude that the Bank was negligent. The burden of proving negligence in the affirmative, rested, at the relevant time, on the writ petitioner. This burden had not been discharged by the deceased writ petitioner and hence, the Bank could not have been held liable for the injuries caused to the deceased writ petitioner due to its signboard falling on his head. The signboard fell due to high-velocity winds; which was an act of God and thus, should have resulted in absolving the Bank of the charge of negligence levelled against it. The judgment of the trial court in the criminal case inter alia, held that the prosecution was unable to prove that the injury suffered by the deceased writ petitioner was the result of the rash and negligent act of the accused (the accused in that case being, as noticed above, the B....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ere adjudicated based on affidavits. 12. In support of his submissions Mr. Jain relied upon the following judgments: (i) SPS Rathore v. State of Haryana (2005) 10 SCC 1 (ii) V. Kishan Rao v. Nikhil Super Speciality Hospital & Another. (2010) 5 SCC 513 (iii) Syad Akbar v. State of Karnataka (1980) 1 SCC 30 13. Mr. Krishnan, on the other, had made the following broad submissions: (i) The learned Single Judge had correctly applied the doctrine of strict liability i.e., res ipsa loquitur, as the material facts which led to the deceased writ petitioner being injured were not in dispute. (ii) There is no bar against courts entering into the realm of disputed facts in a writ action. Parties are relegated to suits only where the court concludes that prolix material by way of evidence would have to be tendered by contesting parties. (iii) Courts have in the past granted compensation in writ action. (iv) The act of God, defence, can only be sustained where the occurrence is "unprecedented and unforeseeable". No such material was placed on record by the Bank. Even if it is presumed that Delhi was exposed to high-velocity winds on the day of the incident i.e., ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aterial on record and heard submissions of the counsels appearing for the contesting parties i.e., the Bank and the LRs of the deceased writ petitioner, the following facts have been brought to the fore, over which there is no dispute: (i) The incident which led to the deceased writ petitioner being injured occurred on 22.05.2011. (ii) The deceased writ petitioner suffered injuries due to the Bank's signboard which was fixed on the facade of the building (in which the Bank was located) coming off and falling on the deceased writ petitioner's head. (iii) The signboard which fell on the deceased writ petitioner bore the following measurements: 36 feet x 4 feet x 4.6 feet. (iv) As a result of the injury, the deceased writ petitioner had to undergo neurosurgery and was discharged from the hospital after 38 days. (v) The discharge summary report issued by AIIMS categorized the nature of the injury as "RT Frontal contusion, acute subdural hematoma and tracheal stenosis". 15. The aforesaid facts clearly reveal that the impact of the signboard caused the deceased writ petitioner to suffer contusion in the area described as the right frontal lobe. The frontal lobe ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 20. A perusal of the impugned judgment would show that the Learned Single Judge has not only taken recourse to the principle of res ipsa loquitur [if it can be called one - See Syad Akbar v. State of Karnataka (1980) 1 SCC 30] but also the principle of strict liability in concluding that the Bank was guilty of negligence. Res ipsa loquitur is a Latin phrase which, simply put, means that if the facts and circumstances concerning an accident are taken into account, it would establish prima facie that the defendant was negligent. Thus, while in an action concerning the tort of negligence the aggrieved person is required to prove negligence, in certain circumstances, it is presumed that the fact that the accident occurred is attributable to the defendant's fault. There is, thus, in a sense, a presumption in law, of the absence of due care on the part of the defendant and/or his agents. However, before one can hold a defendant guilty of negligence by invoking the principle/maxim known as res ipsa loquitur; firstly, it would have to be ascertained whether or not the defendant had control over the thing or object, the escape of which caused the mischief i.e., injury to the plaintif....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Scott L.J. in (1938) 1 ALL E.R. 579 Hale v. Jennings (1938) 1 All E.R. 579: "The fundamental rule of the principle is that the liability attaches because of the occupier of land bringing on to the land something which is likely to cause damage if it escapes." 30. These observations cover the cases of articles potentially dangerous, that is to say such as are likely to cause injury upon escaping, or while in the process of escaping from their places of confinement. 31. In (1876) 1 Q.B.D. 314 Tarry v. Ashton (1976) 1 Q.B.D. 314: 45 L.J. Q.B. 260: 34 L.T. 97, the defendant was the occupier of a house from which a lamp projected over the street, and he had employed a competent person who was not his servant to put it in repair. The lamp fell and injured the plaintiff. It was found as a fact that there had been negligence on the contractor's part and that the lamp had fallen because of the decayed condition of the attachment of the lamp to its bracket, which had escaped notice. Lush and Quinn JJ. held that the defendant was liable on the ground that although he had employed an apparently competent person to repair the lamp, yet that did not excuse him fro....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not in occupation, and upon which the public had a right to be." The italics, which are mine, bring out points of close resemblance with the facts out of which the present action has arisen. 34. In (1938) 1 ALL E.R. 579 Hale v. Jennings (1938) 1 All E.R. 579 the defendant had erected in a public amusement park an apparatus similar to a roundabout called a Chair-O-plane. While this was in the process of rotation, one of the chairs became detached and struck and injured the plaintiff who was the proprietor of a neighbouring shooting-gallery. In holding that the defendant was liable on the fundamental principle enunciated in Rylands v. Fletcher (1868) 3 H.L. 330 : 37 L.J. Ex. 161 : 19 L.T. 220 the Court of Appeal found that the Chair-O-plane was an inherently dangerous thing in the sense that it was likely to cause damage if it escaped. (1868) 3 Q.B. 733 Jones v. Festiniog Rly. Co. (1868) 3 Q.B. 733: 37 L.J. Q.B. 214: 18 L.T. 902: 17 W.R. 28 at p. 736 was a case of damage caused by sparks from a railway engine. Blackburn J. in this case said: "The general rule of common law is correctly given in Fletcher v. Rylands (1865) 1 Ex. 265 : 35 L.J. Ex. 154 : 14 L.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 23 W.R. 693 in which the act of God had been established by the finding of the jury, though I have some doubt whether that finding was correct." xxx xxx xxx 62. With reference to the view taken of act of God in (1876) 10 Ex. 255 Nichols v. Marsland (1875) 10 Ex. 255 : 44 L.J. Ex. 134: 33 L.T. 265: 23 W.R. 693 Fry J. said, in (1878) 9 Ch. D. 503 Nitro-Phosphate and Odam's Chemical Manure Co. v. S. London & St. Katherine Docks (1878) 9 Ch. D. 503: 39 L.T. 433: 27 W.R. 267 at p. 516: "In order that the phenomenon should fall within that rule, it is not in my opinion necessary that it should be unique, that it should happen for the first time; it is enough that it is extraordinary, and such as could not reasonably be anticipated. That appears to me to be the view which has been taken in all the cases, and notably by Lord Justice Mellish in the recent case in (1876) 10 Ex. 255 Nichols v. Marsland (1875) 10 Ex. 255: 44 L.J. Ex. 134: 33 L.T. 265: 23 W.R. 693." .In Greenock Corporation v. Caledonian Railway 86 L.J. P.C. 185 : 117 L.T. 483 Lord Finlay observed: "It is true that the flood was of extraordinary violence, but floods of extraordi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....inary course of things without negligence on the defendant's part. The principle has been clearly stated in Halsbury's Laws of England, 2nd Edn., Vol. 23, at p. 671 as follows: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence tells its own story of negligence on the part of the defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part." In our opinion, the doctrine of res ipsa loquitur applies in the circumstances of the present case. It has been found that the Clock Tower was exclusively under the ownershi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....epairs premises on a highway become dangerous and, therefore, a nuisance and a passer-by or an adjoining owner suffers damage by the collapse the occupier or the owner if he has undertaken the duty of repair, is answerable whether he knew or ought to have known of the danger or not. At p. 233 of the report Atkinson, J. states: "By common law it is an indictable offence for an occupier of premises on a highway to permit them to get into a dangerous condition owing to non-repair. It was not and is not necessary in an indictment to aver knowledge or means of knowledge: see Reg. v. Watson, ((1703) 2 Ld. Raym. 856). In Reg. v. Bradford Navigation Co., ((1865) 6 B. & Section 631, 651) Lord Blackburn (then Blackburn, J.) laid it down as a general principle of law that persons who manage their property so as to be a public nuisance are indictable. In Attorney-General v. Tod Heatley, ([1897] 1 Ch. 560) it was clearly laid down that there is an absolute duty to prevent premises becoming a nuisance. 'If I were sued for a nuisance', said Lindley L.J. in Rapier v. London Tramways Co., ((1893) 2 Chapter 588, 599), 'and the nuisance is proved, it is no defence on my part to s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is liable if he knew of the defect or ought, on investigation, to have known of it. At any rate this is the rule with respect to a thing that is naturally on the premises e.g. a tree." 10. In Clerk and Lindsell on Torts (16th Edn., 1989, at pp. 546-547, para 10.122) the law on trees is summarised as follows: "The fall of trees, branches and other forms of natural growth is governed by the rules of negligence. When trees on land adjoining a public highway fall upon it, the owner is liable if he knew or ought to have known that the falling tree was dangerous. He is not bound to call in an expert to examine the trees, but he is bound to keep a lookout and to take notice of such signs as would indicate to a prudent landowner that there was a danger of a tree falling the landowner was held liable when the tree which fell had been dying for some years before and had become a danger which should have been apparent to an ordinary landowner." 11. In Charlesworth & Percy on Negligence (8th Edn., 1990, at p. 668) the law is stated in these terms: " when a tree, which had been dying for some years and should have been known to be dangerous by an ordinary lan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....putting up the signboard. In the application preferred before the Learned Single Judge i.e., CM No. 12613/2019, which was closed, there is vague assertion about AGIPL being given the task of installation and maintenance of the signboard. If that was so, surely, the Bank would have material available with it to back this assertion. This assertion is completely bald. As a matter of fact, no submission in this behalf was made even before us during the hearings conducted in the matter. More particularly, there is no defence taken that the Bank itself carried out a periodical inspection of the signboard put up on the façade of the building. The deceased writ petitioner was a passer-by who met with the accident while exercising his right of passage on a public pathway which abutted the building in which the Bank was housed. 24. The only defence that the Bank has taken centres around the doctrine/maxim of Act of God or vis major. This defence is generally available where the common law principle of absolute/strict liability enunciated in Rylands v. Fletcher is applied. The rule enunciated in Rylands v. Fletcher is that whoever collects on his land anything, which, if it escapes,....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is conducted acts as an advertisement, whereas in other cases where the business is conducted under a random name which has nothing to do with the kind of business being operated by the advertiser, the advertiser may have to use different mediums to promote its business interests, which could include billboards, hoardings, electronic media, social media platforms or print media to reach its target customers/consumers. 25.3. For example, airlines which fly under different names convey to their target customers/consumers the kind of business they are in. The only distinguishing feature is, perhaps, the country with which they are aligned i.e., the country in which their main hub is located. Illustratively, the names which immediately come to mind are airlines such as Singapore Airlines, British Airways, American Airlines, Malaysian Airlines, Japan Airlines, etcetera. The signboards of such entities would convey to the public at large the nature of their business. 25.4. The mere fact that the signboard bears the name of the entity without extolling its strengths would not in every case take it out of the purview of Section 143 of the DMC Act. Much would depend on the facts and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... fell within the provision of Section 143 of the DMC Act is its size. Concededly, the permission of the Commissioner of the Municipal Corporation, as envisaged under Section 143 of the DMC Act, was not taken by the Bank. 26.1. The relevant observations, in this regard, are contained in paragraph 16 of the impugned judgment, which, for the sake of convenience, are extracted hereafter: "16. Admittedly, BoB had taken no permission from the concerned municipal corporation for fixing the said board. It is, however, contended on behalf of BoB that no such permission was required, since the board in question was a signboard and not an advertisement board. Considering the dimensions of the said board, it is difficult to accept that the board in question was merely a signboard of BoB's branch and not an advertisement display board. The board was four feet thick and was lit. The nature of the Board was in the nature of display of advertisement and therefore, permission of the Commissioner of the concerned Municipal Corporation was required in terms of Section 143 of the Delhi Municipal Corporation Act, 1957." [Emphasis is ours] 26.2. Notably, the learned Single Ju....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mitted a tort of negligence. We may note, in this context, that the Bank was unable to demonstrate that after AGIPL had fixed the signboard, there was a protocol in place to ensure that it was securely fastened to the façade of the building. Concededly, there is not even an assertion made in this regard by the Bank in the counter-affidavit filed before the learned Single Judge or even in the appeal filed by the Bank i.e., LPA 382/2019. 30. The submission advanced on behalf of the Bank that because the deceased writ petitioner received medical treatment from more than one hospital, one could not rule out that he was suffering from a pre-existing ailment, to our minds, is an argument of desperation. A perusal of the writ petitioner's medical record clearly establishes a substantial linkage between the injuries suffered by him and the treatment accorded to him. Apart from the bald assertion, the Bank has not been able to place any material on record which would demonstrate that the deceased writ petitioner suffered from a pre-existing ailment. 30.1. The argument that because the learned Single Judge directed the constitution of a medical board for evaluation of the bi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... will deal with the relevance and impact, if any, of the documents, had they been made available to the learned Single Judge, keeping in mind submissions made on behalf of the Bank by placing reliance on them. 31.3. The document referred to as Annexure A5 is the judgment dated 07.12.2018 rendered by the Trial Court in the criminal case lodged against the manager of the Bank. Concededly, the manager was acquitted via the said judgment. The Trial Court concluded that the prosecution had failed to prove that the Bank manager had committed an offence under Section 338 of the IPC. The Bank cannot turn around and say it did not know of the judgment without saying how it acquired knowledge and whether the manager continued to remain an employee of the Bank while the Trial was on. 31.4. Since this document, as noted above, is a judgment of the court concerning the same incident which led to the deceased writ petitioner suffering head injuries, we heard arguments qua the issue as to whether or not it could have any impact on the conclusion arrived at by the learned Single Judge via the impugned judgment. It was sought to be argued on behalf of the Bank that since the Bank's manage....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... taken by the learned Single Judge that this was a foreseeable event given the geographical location of Delhi and the period during which the event occurred, this document will not help in shoring up the defence offered by the Bank that it was an act of God and, hence, it could not be held guilty of having committed a tort of negligence. 32. This brings us to the judgments cited on behalf of the Bank in support of its pleas advanced before us. 33. The first judgment that was cited by Mr. Jain was the SPS Rathore case. This judgment was cited in support of the submission that the learned Single Judge ought not to have entertained the writ petition as the allegations concerned a tortious act which was best adjudicated in a suit action. It was the submission of Mr. Jain that since disputed questions of facts were involved, a writ court was not an appropriate forum for adjudicating the allegations levelled against the Bank. 33.1. A perusal of the facts obtaining in SPS Rathore's case discloses that an appeal was preferred to the Supreme Court against a direction issued by the High Court in the exercise of its powers under Article 226 to have the concerned District Judge co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nst respondent no. 5. 33.4. It is in this background that the Supreme Court ruled that the power to issue such directions under Articles 32 or 226 should be used "sparingly". 33.5. Interestingly, the Supreme Court, in the very same judgment, also noticed the view taken in an earlier judgment rendered in Tamil Nadu Electricity Board v. Sumathi and Ors. (2000) 4 SCC 543, which, inter alia, held that it is not as if a writ action under Article 226 would not lie for a tortious act and that in every case, the aggrieved person should be relegated to a suit action. 33.6. The judgment in SPS Rathore's case is clearly distinguishable. The Supreme Court found fault with the approach adopted by the High Court in triggering a suo motu action under Article 226 when there was no underlying material available with it. 34. The next judgment on which Mr. Jain places reliance is V. Kishan Rao's case. This case dealt with the issue as to whether or not while dealing with complaints lodged before consumer forums concerning medical negligence, the aggrieved person in every case is required to adduce expert evidence. A challenge was laid to the order passed by the National Consumer D....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the IPC. The allegation against the appellant was that he had run over a child while she was crossing the road. The prosecution had produced four eyewitnesses, all of whom turned hostile. Consequently, the Public Prosecutor sought and obtained leave to cross-examine the said witnesses. It appears that the Public Prosecutor did not confront the witnesses with the statement made by them before the police concerning the fact that the subject vehicle was proceeding at a slow speed and that the child who died in the incident suddenly came in front of the vehicle and, despite the appellant swerving the vehicle away from her, he was unable to save her. Evidently, the witnesses were confronted with only that part of their statement made before the police, which alluded to the fact that the accident had taken place due to the negligence of the appellant. Given this state of the evidence, the appellant's defence before the Trial Court was that he was unable to avoid the accident despite having taken every possible measure. The Trial Court, however, concluded that the witnesses were not speaking the truth; in appeal, the Session's Judge agreed with this view of the Trial Court. Th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions (1937) 2 All ER 552: 1937 AC 576, "simple lack of care such as will constitute civil liability, is not enough"; for liability under the criminal law "a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most nearly covers the case" 35.4. Furthermore, the court, in the very same case, also took note of the fact that as to the application of the maxim res ipsa loquitur, there were possibly two approaches adopted by the court. The first approach exhorted that where....