RFA(OS)/75/2011 of INDIA TOURISM DEVELOPMENT CORPORATION Vs MISS SUSAN LEIGH BEER

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 24.01.2014

Pronounced on : 30.05.2014

+RFA (OS) 75/2011, C.M. APPL. 15966/2011INDIATOURISMDEVELOPMENTCORPORATIONLIMITED…..Petitioner

Through: Sh. K.T.S. Tulsi, Sr. Advocate with Sh.R.S. Mathur and Sh. Amitabh Marwah, Advocates.

Versus

MISS SUSAN LEIGH BEER……..RespondentsThrough: Sh. Madan Bhatia, Sr. Advocate with Sh.Anup Kumar Sinha, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

MR. JUSTICE S. RAVINDRA BHAT

1.The unsuccessful defendant (i.e. the appellant India TourismDevelopment Corporation, hereafter called “ITDC”) challenges thejudgment and decree of the Learned Single Judge of this court, whohad held it liable to the extent of ₹ 1,82,00,000/- (Rupees one croreeighty two lakhs) with simple interest thereon @ 6% per annum w.e.f22.01.1982 till the date of the decree and future simple interest on thatamount @ 10% per annum till its realization.

2.The brief facts are that the plaintiff (hereafter “Susan” or “theplaintiff” or “the respondent”) claimed decree for ₹ 2,00,00,000/-(Rupees two crores) as damages and interest @ 18% p.a. on the said

amount from the date of presentation of the plaint till actual payment.The claim was on the basis of swimming pool injury suffered by theplaintiff on 05.05.1978 at (the erstwhile) Akbar Hotel (“the hotel”),managed and maintained by the ITDC. Susan was staying in the hotelwith her parents and brother at the time she suffered the injury, whichresulted in her becoming quadriplegic. Susan alleged that the injurywas due to the negligence of the ITDC in the maintenance of theswimming pool. ITDC did not deny that the plaintiff was injured on05.05.1978 in the swimming pool; it alleged, however that the injurywas on account of the plaintiff's negligence for which it could not beheld liable.

The pleadings: Suit averments

3. The suit alleged that in May, 1978, Susan, whilst on vacation inIndia with her parents stayed in the hotel, which was managed byITDC. On 05.05.1978, during her stay, she went to the swimming poolat about 5:15 PM for swim. Susan was an experienced swimmer, aQueensland (Australia) under-age champion and member of theQueensland Women's Water Polo Team for several years. She was, inthe beginning of 1978, invited to join the Australian Women's WaterPolo Team and was expected to travel to Germany with the Australianteam in August, 1979. On the fateful day, i.e., on 05.05.1978, at about5:15 PM, she jumped from the shallow end, into the swimming poolopposite the diving board. Susan relied on an implied representationby the swimming pool owner that the pool floor would not be slipperyand would be safe for users to stand on without slipping. The plaint

alleged negligence on the part of ITDC in covering the pool floor withglazed and consequently slippery tiles, as well as in not properlycleaning and maintaining the pool floor leading to growth andaccumulation of slime on the tiles. Resultantly, when Susan jumpedinto the water and her feet touched the pool floor, she slipped,resulting in loss of control. She fell backwards and her head hit againstthe wall of the pool. This fall led to Susan suffering serious head andback injuries and being unable to swim out of the pool. Her father andbrother sensing that she was injured and upon noticing blood in thewater, immediately swam to Susan's assistance and lifted her out ofthe pool carefully. Subsequently, she was removed by ambulance tothe Holy Family Hospital, Okhla, New Delhi where she was treated byDr Arjun Sehgal and Professor Ramamurthi, who had come fromMadras.4.According to the plaint, Dr Sehgal diagnosed that Susan hadsuffered head injury with fracture dislocation of the cervical dorsalcolumn causing paralysis of the four limbs and loss of sphinctercontrol. Dr Sehgal later advised that Susan should be transported toher home in Brisbane, Australia. After prolonged hospitalization inDelhi, accompanied by neurosurgeon and another doctor, she wasflown to Australia. From 16.06.1978 to 27.10.1978 she remained inthe Spinal Unit of Princess Alexandra Hospital, Brisbane and from13.11.1978 to 18.11.1978 in the Spinal Unit of Royal North ShoreHospital, Sydney, Australia. It is further alleged that despite sustainedmedical treatment, Susan was unable to recover from the spinal

injuries which are of permanent character and have physicallyincapacitated her for the rest of her life. She is now permanentlyconfined to wheel chair, being quadriplegic.

5.It is alleged in the plaint that apart from the physical agony andmental anguish which the plaintiff underwent during her treatment, theplaintiff also suffered emotional and psychological pain which willlive with her as long as she lives. Susan alleged that she had verybright and fruitful future ahead of her which was cut-short bypermanent disability suffered by her due to the utter negligence andcarelessness of ITDC, its employees and agents. It was alleged thatITDC was under duty to keep its swimming pool safe for swimmers.The suit alleged that the incident speaks for itself and the plaintiff isentitled to the benefit of the maxim res ipsa loquitur. ` 2 crores wasclaimed in the suit, as damages computed as under:-

i) Expenses incurred by the plaintiff on medical treatment and care inIndia and Australia – ₹ 20,00,000/-

ii) Damages on account of physical pain, mental anguish andpsychological anguish and loss of education – ₹ 50,00,000/-

iii) Damages on account of loss of earnings for the rest of her life – ₹1,30,00,000/00 (Rupees one crore and thirty lakhs)

Total – ₹ 2,00,00,000/- (Rupees two crores)

Consequently, decree for ₹ 2 crores along with interest at the rate of18% p.a. from the date of presentation of the plaint till realization wasclaimed by the plaintiff.

The Written Statement:

6.ITDC firstly objected that the plaint was not filed by dulyauthorized person as it was signed and verified by Mr. Geoffrey Beer,alleged attorney of Susan. That document was not filed with the suit,nor was any reference made to it in the pleadings. ITDC also statesthat the plaint is not duly signed as required by Order XXXIII, Rule 2of the Civil Procedure Code, as Susan has not been proven to be anindigent person. It was also urged that the suit was to be rejected fornon-joinder of necessary party, the New Delhi Municipal Council(“NDMC”), the owner of the premises, which had been leased toITDC.

7.ITDC contested that there was any express or implied obligationon the part of the hotel in this regard. It was admitted that Susan andher family stayed in the hotel as claimed by her; however as guests,the use of the swimming pool was entirely at their risk andresponsibility. The hotel merely permits the guests to swim if they sochoose, out of their own volition, without any charge for it or withoutconsideration. Merely because guest chooses to swim at the pool, aseparate contract does not arise; no contractual relationship is involvedin this regard and no question of any breach of contract arose at all.Any guest of the hotel, who uses the pool, does so on an “as is” basis.Furthermore, parents are entirely responsible for their children’s safetyin the pool. ITDC urged that according to the rules, it did not acceptany responsibility for any accident. It was also contended that asregards the construction of the swimming pool, the same had been

done by the NDMC and that it conformed to the well-accepted andwell-recognized standards. ITDC further argued that Susan did notobserve the rules in regard to swimming pool usage and was whollynegligent and, in any event, no claim could lie against it.

8.The written statement argued that Susan should not havejumped into the pool from the shallow end and that swimmers shoulduse the diving board and dive into the deep end of the swimming pool.Jumping or diving at the shallow side by Susan was wholly wrong,negligent and contrary to the well accepted norms of swimming andalso violated rules. ITDC stated that there are fixed stairs built forgetting into the swimming pool and Susan did not enter the swimmingpool through those stairs – an act that is wholly negligent. She wasnegligent in jumping into the pool from the shallow end evenassuming, without admitting that she had jumped into the pool asalleged by her.

9.ITDC disputed the suit averments with regard to description ofthe incident, denied that the bottom of the pool was slippery and alsodenied that Susan slipped in the pool as alleged. Her statement ofhaving jumped into the swimming pool as alleged in the suit wasdenied. According to ITDC, the swimming pool was cleaned incompliance with well-recognized standards and on the date of theincident too, the pool had been cleaned and was not slippery. Thedefendant stated that as matter of fact, the injury to Susan could nothave been suffered as result of her jumping and slipping in theswimming pool as alleged. ITDC argued that swimming pools with

glazed tiles are well-accepted; it denied that the tiles covering the poolfloor at Hotel Akbar were slippery and further denied that it did notkeep the pool floor clean or properly maintained.

10.ITDC’s written statement alleged that Susan and her brotherwere playing in and around the swimming pool and suddenly theaccident happened. It was denied that her feet had touched the poolfloor and slipped resulting in loss of control of the plaintiff and thather head hit against the pool wall. The written statement alleged thatthe injury caused to Susan resulted in her not remembering facts inrespect of what had actually happened. Even the parents and brother ofSusan could not describe the accident when ITDC made enquiries inthis behalf from them, after the accident, before they left the hotel. Itwas stated that there was lifeguard in attendance who hadimmediately gone to rescue the plaintiff after seeing the suddenaccident and that the pool was well-marked indicating the depth ofwater at different places. The plaintiff was entirely responsible for theincident.

11.Paragraph 11 of the written statement admitted that Susan didnot swim out of the pool, after suffering the injury. It further allegedthat the hotel pool attendant was responsible for bringing Susan out ofthe water. ITDC alleged that Susan’s parents were not close to thepool but were at distance relaxing in the chairs. Her brother,however, was close to the pool but he was dazed at that point of timeand could not say what had happened. ITDC denied that Susan’sparents saw the incident or that they had rescued her. ITDC denied

that Susan had suffered any spinal injury of permanent character orthat she was physically incapacitated. It was even alleged that:

“It is clear that the injuries whatever they were, did not affectthe mobility of the plaintiff which is evident also from the factthat she had been found fit to travel soon after the accident andshe could have travelled even earlier than she did.”

12.ITDC claimed that it had daily routine for cleaning of theswimming pool according to standard procedure and processes; therewas neither any chance of the swimming pool being slippery andunsafe, nor was it slippery or unsafe. ITDC alleged that it provided thehelp and lifeguard assistance, notified the conditions subject to whichthe pool could be used as licensees, displayed information regardingdifferent depths of the water at different places by markings in boldEnglish letters. ITDC contended that the incident was the result ofviolation of the conditions for use of the pool on Susan’s part and hernegligence. Applicability of res ipsa loquitur was denied as were theallegation of damages or losses.

13.On the basis of the averments pleadings, the following nineissues were framed for trial:

1. Whether the suit has been filed by duly authorized person?

2. Whether New Delhi Municipal Committee was owner of thebuilding of Akbar Hotel and was necessary party?

3. Whether the tiles covering the floor of the swimming pool wereslippery?

4. Whether the floor of the swimming pool was not clean and had notbeen properly maintained, resulting in the growth and accumulation ofslime on the tiles?

5. Whether the plaintiff suffered injuries on account of the nature andcondition of the bottom of the pool and due to negligence of the hotel?If so, what injuries were suffered by her?

6. Whether the plaintiff was required to observe any rules in the use ofswimming pool and she did not observe the said rules and was herselfnegligent for the injuries suffered, if any?

7. Whether the swimming in the pool was at the risk and responsibilityof the plaintiff (the guest) and there was no obligation on the hotel inthis behalf?

8. Whether the defendant was in legal duty to keep the swimming poolsafe for swimming of guests and the plaintiff was entitled to thebenefit of the maxim res ipsa loquitur?

9. To what amount, if any, the plaintiff is entitled?

14.The plaintiff examined 22 witnesses; including PW1 (theplaintiff herself), PW2 Mr G.L. Beer (the plaintiff's father), PW4 Dr J.A. Smith (Neurosurgeon-- expert witness), PW8 Mr G. L. McDonald(expert witness), PW14 Mr K. R. Dobson (expert witness), PW18 MrL. I. Sly (expert witness), PW19 Mrs P. J. Beer (the plaintiff's mother)and PW22 Dr Arjun Dass Sehgal (the doctor who initially treated theplaintiff at Holy Family Hospital). The Learned Single Judge recordedthat apparently that there was some error in the assigning of numbersto these witnesses. This was that Mrs P. J. Beer, shown at Sl. No. 19of the list of witnesses, was assigned the number -PW19. Dr Arjun

Dass Sehgal, who is shown at serial No. 22 of the list of witnesses,was also assigned the description PW19. Therefore, the Single Judgetreated Mrs P. J. Beer as PW19 and Dr Arjun Dass Sehgal as PW22.The ITDC examined two witnesses, namely, DW1 Dr G. G.Manshramani and DW2 Balram Verma (the lifeguard at Akbar Hotel).

Findings of the Single judge

15.On appreciation of the arguments and evidence, the LearnedSingle Judge found, on Issue 1, that the power of attorney had notbeen filed along with the plaint and was filed on 25.11.1991 out ofinadvertence. In any event, the plaintiff had clearly ratified the filingof the plaint and there was no question of the plaintiff’s fathermisrepresenting himself to be an authorized agent. Moreover, theLearned Single Judge held that procedural defects which do not go tothe root of the matter, cannot be permitted to defeat just cause that aparty may advance and that curable procedural irregularity cannot beused to defeat substantive right. Issue 2 was not argued by thedefendant during the hearing, and was thus not ruled on.

16.On Issue Nos. 3-8 the learned Single Judge found from theevidence that the injuries were fracture of the C6 and C7 vertebraewith anterior sliding of the 7[th]vertebra under the 6[th]vertebra leadingto quadriplegia. As regards ITDC’s argument that Susan had divedinto the pool and not jumped, the Single Judge found that Susan’sversion of events (i.e. that she jumped in feet first) stood corroboratedby other witnesses and that nothing in the cross-examination shook

their testimonies regarding how the incident took place. Further, thenature of injuries established was consistent with Susan’s claim abouthow she entered the pool. ITDC had only adduced evidence as to thetheory that Susan had dived and not jumped, without pleading that inits written statement. The Court could not therefore, render judgmenton fact not pleaded. Finally, the Learned Single Judge found that thepool floor could have been slippery, due to its glazed tiling,aggravated by algae growth, often invisible in pools. The testimony ofSusan and her parents and the absence of evidence on the part ofITDC to refute the suit claim led the Single Judge to conclude that thepool was not properly maintained. The Learned Single Judge held,consequently, that by application of the maxim res ipsa loquitur, ITDCfailed in discharging its burden of proof as regards the possibleexplanation for the plaintiff’s injury.

17.On Issue No. 9, the Learned Single Judge awarded Susan,damages amounting to ₹1,82,00,000 (i.e.₹ 5,00,000 for medicalexpenses, ₹ 50,00,000 for pain and suffering, and ₹ 1,27,00,000 forloss of earnings) along with interest at the rate of 6% per annum w.e.f.22.01.1982 till the date of decree and 10% per annum till the date ofpayment, on the decretal sum.

ITDC’s submissions in appeal

18.ITDC, in its grounds of appeal and submissions, arguespreliminarily that first, the suit was wrongly permitted to be institutedby Susan as an indigent person and second, that the power of attorney

was not validly executed in favour of her father. It was argued by ShriK.T.S Tulsi, Learned Senior Counsel for ITDC, that the suit ought tohave been rejected as not maintainable because it was filed by aperson not authorized by the plaintiff; the signature upon the plaintwas that of the plaintiff’s father. However, the power of attorneyauthorizing him to institute proceedings were not on record when thesuit was filed. The Learned Single Judge, it was submitted fell intoerror in regard to findings on this issue.

19.On merits, the Counsel for ITDC argued that Susan dived anddid not jump into the pool. Counsel for ITDC urged first, that Susancould not have sustained the particular injuries that she did, byjumping into the pool. The submission is that burst fracture is anunstable fracture that can result when heavy pressure is exerted onupper part of the skull. The compression of the spinal cord in burstfracture causes paralysis. Since the respondent’s injury was acombination of flexion and compression, it was argued that heavycompression is needed to fracture the C6 and C6 vertebrae. Thiscompression, it was urged, is lessened by the buoyant force of waterwhen one jumps into the pool, feet first. Thus it is urged that therespondent could have only dived, causing her head to strike thebottom of the pool. It is submitted that cervical spinal fractures cannotoccur when the injury is to the back of the head; the injury is requiredto be on the top of the head with high force, to fracture the C6 and C7.

20.Learned Senior Counsel for ITDC submitted, on the basis ofdocumentary evidence (in the form of hospital records PW 19/2, PW

19/3, PW 19/4, PW 19/5, PW 19/6, Ex. 2/34, the report of the PrincessAlexandra Hospital dated 12.11.1978, case summary and dischargerecord of Holy Family Hospital) that the injury was caused by divingand not jumping, as the doctors described it thus while writing outthese records. ITDC also submits that the oral evidence of Susan’sexpert witnesses PW 4, Dr. JA Smith and PW 19, Dr. Arjun Sehgal,the amateur swimming coach PW7, Mr. EJ King, and appellant’sexpert witness DW1, Dr. Manshramani and DW 2 - Mr. BalramVerma also indicate that the respondent did not jump into the pool.Learned senior counsel argued that neither Susan nor her parentsdisputed the hospital records as being fabricated when put to them incross examination. It was submitted that Susan admitted that thedoctors prepared the report of what was being told to them in herpresence and that the records of the Holy Family Hospital wereaccurate; likewise Susan’s parents, in their testimonies confirmed theaccuracy of the hospital records. These, argued Counsel, clearly, wereconsistent with the other records that Susan had dived into the pool.Given the nature of this overwhelming evidence, the suit claim thatshe slipped after jumping into the pool feet first, was not onlyimprobable, but unbelievable. ITDC’s Senior Counsel argued that theLearned Single Judge fell into error in holding that the injury occurredin the circumstances alleged by the plaintiff.

21.Learned Senior Counsel for ITDC also argued that there wasabsence of evidence adduced by Susan to establish that the swimmingpool was not maintained properly and that there were algae on the

floor, based on the depositions of witnesses. It was submitted that thephotographs and materials produced were in respect of the state ofaffairs which existed much after the incident and were consequentlyunreliable. It was also argued that the most reliable evidence were thehospital records produced in the case, which established that the Susanhad dived into the swimming pool; there was no question, therefore, ofher having suffered any flexion injury, as was found in the impugnedjudgment; the nature of the injuries on the head clearly indicated a“burst” fracture and resultant compression injury. It was argued thatthis conclusion is manifest on plain reading of the testimonies ofPW-4 and PW-22.

22.It was submitted that the Learned Single Judge fell into error inoverlooking that the plaintiff had equivocated and even indulged infalsehood during the cross examination as to the circumstances whichled to the injury; in this situation, the maxim or rule of evidence resipsa loquitor was not attracted.

23.It was submitted that the medical witness, Dr. J.A. Smith, aNeurosurgeon produced by the plaintiff admitted in cross examinationthat for the injuries in the C-6 and C-7 vertebrae, there had to bevertical compression and flexion alone was insufficient to produceforce to damage those vertebrae. It was emphasized that the plaintiffhad sustained lacerated and contused wound on the crown of thehead, one inch long. The witnesses account, submitted Counsel, couldnot be considered reliable because he was informed about whattranspired, and he deposed on that basis and on his appraisal of the x-

Ray reports. Counsel also pointed out what according to him wereinconsistencies and improbabilities in the plaintiff’s case. He alsoargued that even the testimony of Dr. Arjun Sehgal supported theITDC, rather than the plaintiff.

24.Mr. Tulsi argued that the best evidence available was in theform of the contemporaneous medical records and record ofexamination of the plaintiff by various doctors. The best evidencebeing written record was the most trustworthy and conclusive as toits contents. These documents undermined the plaintiff’s claimaltogether, as they established that she had dived headlong into thepool and sustained the injuries, which could not be attributed toITDC’s actions or alleged omissions. No evidence to the contrary,especially oral evidence, could be given preference, in view of Section91 of the Evidence Act. Reliance was placed on the ruling of theSupreme Court in Roop Kumar v Mohan Thedani 2003 (6) SCC 595and Duli Chand v Jagmender Das1990 (1) SCC 19. Likewise,reliance was placed on Gurnam Singh v Surjit Singh 1975 (4) SCC404. Counsel stressed that no amount of oral evidence to contradictdocuments that are required to be maintained in terms of Section 91,could have been given weight by the Court. He argued that theLearned Single Judge fell into error in doing so.

25.Learned Senior Counsel for ITDC also submitted that thefindings in the impugned judgment regarding the glazed tiles beingslippery on account of faulty maintenance, was contrary to the record.Here it was argued that the impugned judgment erred in not giving

credence to the testimony of DW-2. It was argued that the testimonyof PW-14, based on the photographs Ex. PW-7/2 to 7/11 could not beof help because the photographs were taken four years after theincident. Moreover, argued Counsel, Susan’s father admitted in hisevidence that he made no complaint about lack of cleanliness or thepool floor being slippery at any time whatsoever. In the circumstances,the findings of the Learned Single Judge were unsustainable.

Arguments on behalf of Susan

26.Senior Counsel for the plaintiff, Susan, Shri Madan Bhatia, hadurged that Susan was aggrieved by the duration of the protractedlitigation given that the suit for damages was filed in January 1982 andthat the hearings in the appeal were ongoing even as of January 2013.It is argued first, that the absence of pleadings in the written statementas regards Susan having dived and not jumped indicates that ITDC isadvancing its case based on conjecture, second, that it has notchallenged the material findings of the Learned Single Judge, third,that the grounds of appeal were based on falsehoods; fourth, thatITDC’s case that the Plaintiff dived and did not jump was contrary tothe facts on record. Susan also filed cross objections under Order XLI,Rule 22 stating that the loss of earnings claimed by the respondent was₹1,30,00,000 but the learned Single Judge had decreed only ₹1,27,00,000 for loss of earnings.

27.It is also stated that the interest rate claimed was 18% on thedecreed amount from the date of filing of the plaint till the date of

payment in Susan’s favour, whereas the Learned Single Judge decreedan interest rate of 6% from the date of institution of plaint till the dateof decree and then rate of 10% thereon till the date of payment.

28.Finally, it is argued that Susan did not contemplate that thelitigation would take more than 29 years (i.e. Jan 1982 to Feb 2011) tobe completed. This delay, it is alleged, was caused by delaying tacticsemployed by ITDC, while the plaintiff was diligent in pursuing thelitigation with great diligence, having completed recording allevidence in 1991. The expenses of the litigation were borne entirelyby Legal Aid, Government of Queensland. Further, the damagesawarded were estimated in Australian Dollars (“AUD”) and thenconverted into the Indian Rupee (“INR”) at the prevailing rate in 1982,of 1 AUS = ₹ 9. Due to the drastic decline in the exchange rate of theAustralian Dollar, any award of damages in INR will be paltry sumonce converted to AUD for use in Australia by the respondent.

Points for determination

29.The following points arise for decision:

(1)Whether the plaint was filed by duly authorized persons?

(2)Whether the suit was wrongly allowed to be filed as suitin forma pauperis under Order XXXIII of the Civil ProcedureCode?

(3)Whether res ipsa loquitur applies in this case?

(i)Whether there was an injury? If yes, what type of injurywas it?was it?

(ii)Whether the nature of the injury and the manner in whichit was sustained was established by the plaintiff, so as tocreate presumption of negligence on the part of theITDC?it was sustained was established by the plaintiff, so as tocreate presumption of negligence on the part of theITDC?

(iii)Whether the question of the respondent having jumped ordived is relevant question to be decided? If so, whetherdisregarding the hospital records is permissible underSection 92 of the Evidence Act?dived is relevant question to be decided? If so, whetherdisregarding the hospital records is permissible underSection 92 of the Evidence Act?

(iv)Whether the floor of the swimming pool was slippery?Whether the swimming pool floor had algae and otherslippery material on it due to lack of maintenance?Whether the swimming pool floor had algae and otherslippery material on it due to lack of maintenance?

(4)Whether, if any, compensation is to be paid?

(5)Whether the finding as to the interest rate by the LearnedSingle Judge merits interference?Single Judge merits interference?

Point No. 1: whether the plaint was filed by duly authorized person

30.ITDC argued that Mr. G. L. Beer did not have the requisitepower of attorney which was filed on 15.11.1991 because first, theprocedure that Mr. Beer claims to have followed is contrary to theprocedure in Chapter IV of the Delhi High Court (Original Side)Rules, 1967 and second, the power of attorney filed is not notarized byanyone and does not bear the endorsement of the Court official towhom it was submitted. The Learned Single Judge held that

procedural irregularities that do not go to the root of the matter cannotbe reason to deny substantive rights of parties and that Courts, underthe Civil Procedure Code, have the power to ensure that injustice isnot done to parties with just cause. The Single Judge relied onUnited Bank of India v. Naresh Kumar (1996) 6 SCC 660 in holdingso.

31.This Court however, notices that ITDC has not challenged thesefindings of the Learned Single Judge in relation to filing of the suit byan authorized person, or the due institution of the action, in the presentappeal. During the hearing, Learned Senior Counsel for the ITDCmerely reiterated the averment in the plaint that so long as the suit wasfiled without authority, it cannot be deemed to have been instituted onthe file of this court. By the time the relevant authorisation wasproduced, the time granted by law had expired. Since the findings ofthe Learned Single Judge are unchallenged in the appeal, thesefindings continue to stand. In any event, this Court finds that both theobjections raised by ITDC on this point are procedural objections thatdo not go to the root of the matter in the plaint, i.e. the questions ofculpability for negligence - whether ITDC breached duty of care toavoid reasonably foreseeable injury to theSusan and causation ofnegligence - whether the Susan’s injury and quadriplegia was areasonably foreseeable consequence of the ITDC’s acts or omissions.Therefore,thisfindingoftheLearnedSingleJudge,astomaintainability on the ground of whether it was instituted by dulyauthorized person is sound and does not call for interference.

Point No. 2: Whether the suit was wrongly allowed to be filed as asuit in forma pauperis under Order XXXIII of the Civil ProcedureCode?

32.IPA 1/82 (application to sue in forma pauperis) was admitted asa suit in forma pauperis by way of the order dated 24.09.1982 of theLearned Single Judge, in which it was observed that ITDC hadrepeatedly sought adjournments. After notice of the IPA was issued on24.02.1982 to the defendant’s counsel and the Standing counsel for theGovernment, time was sought for filing replies, which was allowedwith an adjournment till 5.04.1982. Reply was filed on 18.03.1982 buton 5.04.1982, and several successive dates (10.05.1982, 5.08.1982 and22.09.1982) permission was sought by the Government Pleader and onthe last date, by ITDC, to make enquiries regarding the financial statusof the plaintiff. Time was granted and ultimately on 22.09.1982, theCourt refused further extension of time, declining request foradjournment.ITDC on the same day sought, in the alternative, toexamine Susan, under Order XXXIII, Rule 6. The Learned SingleJudge, having granted three adjournments refused to grant anotheradjournment and allowed the IPA and directed it to be registered as asuit on 24.09.1982. That order observes that even after suit isadmitted in forma pauperis, the ITDC continues to have right underOrder XXXIII, Rule 9 to show that the plaintiff is not indigent.

33.Keeping in mind this history, it is the opinion of this Court thatthe appellant was granted several chances from 5.04.1982 to adduceevidence and be heard under Order XXXIII, Rules 6 and 7. ITDChowever chose to forsake this by instead, waiting for the report of the

Government of NCT pleader, thus delaying the process by 7 months.As noted in A. Prabhakaran Nair vs K.P. Neelakantan Pillai AIR1988 Ker 267:

“The application of Rule 6 of Order 33 comes into play onlywhen the court finds no reason to reject the application onanyofthegroundsmentionedinRule5.Noticecontemplated in that rule to the opposite party and theGovernment Pleader is only to receive the evidence andhear the same on the question of indigency. In this casenotice was issued to the Government Pleader, but he did notsubmit any report. Even though the enquiry regardingindigency is not exclusively matter between the plaintiffand the State alone and the opposite party, is also vitallyinterested and entitled to participate and adduce evidence,-the question of realisation of courtfee is essentially matterbetween plaintiff and the state.Notice to the GovernmentPleader is intended as notice to the state which may be inpossessionofmaterialsandinformationregardingindigency or sufficient means. That notice is only to alert thestate to file report or raise objection if it so chooses.Nothing in the rule provides that there must be report fromthe Government Pleader or the question of indigency couldbe decided only on the basis of such report. At any rate theopposite party is not in any way concerned with the issue ofnotice to the Government Pleader on the report, if any, filedby him.The court need only consider the materials furnishedunder Rule 7. On the ground that no notice was issued to theGovernment Pleader, or no report was filed by him, theopposite party will not get any right to challenge the orderespecially when he got fair chance of contesting thematter. This aspect was considered in the decision inBalakrishnan v. Narayanan Nair, 1984 Ker LT 374.”[emphasis supplied]

34.ITDC, thus continued to have right under Order XXXIII, Rule9 under which provision the Court can withdraw permission to file as

an indigent person even after an IPA is admitted. At the relevant timeof enquiry, it was granted sufficient opportunity to enter its oppositionas to why the suit should not be treated as one having been filed informa pauperis. Moreover, Rules 10, 11 and 11-A of Order XXXIIImake it amply clear that the scheme of Order XXXIII is merely todefer and not to altogether cancel the liability to pay court fee.

35.For these reasons, this Court is of the opinion that there is noinfirmity in the admission of the suit in forma pauperis.

Point No. 3: Does res ipsa loquitur apply in this case?

36. In the common law of negligence, the doctrine of res ipsa loquitur(Latin for "the thing speaks for itself") states that the elements of dutyof care and breach can be sometimes inferred from the very nature ofthe accident, even without direct evidence of how any defendantbehaved. Although modern formulations differ by jurisdiction, thecommon law originally stated that the accident must satisfy twoconditions. Upon proof of res ipsa loquitur, the plaintiff need onlyestablish the remaining two elements of negligence—namely, that theplaintiff suffered injury/damage, of which the accident was theimmediate cause.

37.Indian tort law views the principle of res ipsa loquitur as onethat shifts the burden of proof onto the defendant if first, the fact ofinjury is shown to have occurred by the plaintiff, second, the plaintiffis unable to establish the causation for the injury, third, the fact of theincident causing injury itself justifies the inference that the cause is

primarily within the knowledge of the defendant. See Syad Akbar v.State of Karnataka, (1980) 1 SCC 30; Shyam Sunder v. State ofRajasthan, (1974) 1 SCC 690; Pushpabai Purshottam v. RanjitGinning & Pressing Co., (1977) 2 SCC 745. In Shyam Sundar (supra)the Court held that:

"The maxim is stated in its classic form by Erle, C.J. [See:Scott Vs. London & St. Katherine Docks (1865) 3 & C596, 601]:

‘.... where the thing is shown to be under themanagement of the defendant or his servants, andthe accident is such as in the ordinary course ofthings does not happen if those who have themanagement use proper care, it affords reasonableevidence in the absence of explanation by thedefendants, that the accident arose from want ofcare…..’management of the defendant or his servants, andthe accident is such as in the ordinary course ofthings does not happen if those who have themanagement use proper care, it affords reasonableevidence in the absence of explanation by thedefendants, that the accident arose from want ofcare…..’

Res ipsa loquitur is an immensely important vehicle forimporting strict liability into negligence cases. In practice,there are many cases where res ipsa loquitur is properlyinvoked in which the defendant is unable to showaffirmatively either that he took all reasonable precautionsto avoid injury or that the particular cause of the injurywas not associated with negligence on his part. Industrialand traffic accidents and injuries caused by defectivemerchandise are so frequently of this type that thetheoretical limitations of the maxim are quite overshadowed by its practical significance."

In Syad Akbar (supra), the Supreme Court noted that the cases inwhich it is appropriate to employ res ipsa loquitur are those in whichthe event or accident is of kind that it “does not happen in theordinary course of things if those who have the management and

control use due care”. The burden then shifts on the defendant toshow that the accident is not consequence of the negligence of thedefendant or that the accident could not have been avoided by exerciseof ordinary care and caution on part of the defendant. The Courtelaborated on this, in the following manner:

“According to the other line of approach, res ipsa loquituris not special rule of substantive Law; that functionally,it is only an aid in the evaluation of evidence, "anapplication of the general method of inferring one or morefacts in issue from circumstances proved in evidence". Inthis view, the maxim res ipsa loquitur does not require theraising of any presumption of law which must shift theonus on the defendant. It only, when applied appropriately,allows the drawing of permissive inference of fact, asdistinguished from mandatory presumption properly so-called, having regard to the totality of the circumstancesand probabilities of the case. Res ipsa is only means ofestimating logical probability from the circumstances ofthe accident. Looked at from this angle, the phrase (asLord Justice Kennedy put it(3) only means, 'that there is,in the circumstances of the particular case, some evidencewhich, viewed not as matter of conjecture, but ofreasonable argument, makes it more probable that therewas some negligence, upon the facts as shown andundisputed, than that the occurrence took place withoutnegligence.... It means that the circumstances are, so tospeak, eloquent of the negligence of somebody whobrought about the state of thing which is complained of."In our opinion, for reasons that follow, the first line ofapproach which tends to give the maxim larger effectthan that of merely permissive inference, by laying downthat the application of the maxim shifts or casts even in thefirst instance, the burden on the defendant who in order toexculpatehimselfmustrebutthepresumptionofnegligence against him..”

In view of the above discussion, it is held that the applicability of resipsa loquitor is fact-based, contextual determination. Since the ruleis one of evidence, and not dogma which relieves the plaintiff fromthe burden of proving his or her claim, the principle that emerges isthat res ipsa loquitor can be applied, once it is held that the plaintiffestablishedtheinjury;theonusthenwouldshiftonthedefendant/ITDC to explain the circumstances and whether it took therequisite care to avoid foreseeable event.

Issue 3 (i): Did the plaintiff suffer injury as she alleged

38. PW 2/33, the investigation report prepared on the date of dischargeof the plaintiff, (Susan) i.e. 13.6.78 at the Holy Family Hospital wasdrawn up by Dr. Arjun Sehgal, PW 19. PW 19/1, the admission anddischarge report was also signed by Dr. Sehgal. These indicate thatSusan suffered fracture of the C6 and C7 with slight anterior slidingof C7 under C6. PW 4/1 written by Dr. JA Smith indicates that shesuffered fracture of C7 vertebral body with an anteriorly detachedbone fragment. As consequence of the fracture of her cervicalcolumn, Susan suffered quadriplegia as documented in PW 2/33, PW19/1, PW 4/1.

39. PW 19/2, medical report signed by Dr. Midha; PW 19/3 is casesummary and discharge recorded signed by some other doctor, PW19/4 is history sheet signed by some other doctor; PW 19/5, PW 19/6and other consultation records forwarded by Dr. Sehgal to Dr. Rana,Dr. Pant, Dr. Ramamurthy, Dr. Mathur, and Dr. Singh respectively.None of the doctors who recorded these documents were examined

before the Court. State of Maharashtra v. Damu s/o Gopinath Shinde,AIR 2000 SC 1691 is an authority for the proposition that withoutexamination of such doctors, the Court cannot accept the version ofevents recorded in the hospital records marked at PW 19/2-19/6. It hasbeen held in Damu (supra) that:

“The affidavits of the experts including the doctors can betaken as evidence. Thereafter, if cross-examination issought for by the other side and the Commission finds itproper, it can easily evolve procedure permitting theparty who intends to cross-examine by putting certainquestions in writing and those questions also could bereplied by such experts including doctors on affidavits. Incase where stakes are very high and still party intends tocross-examine such doctors or experts, there can be videoconferences or asking questions by arranging telephonicconference and at the initial stage this cost should beborne by the person who claims such video conference.Further,cross-examinationcanbetakenbytheCommissioner appointed by it at the working place of suchexperts at fixed time”.

No such procedure was adopted in the present case; therefore, thehospital records, though contemporaneous, cannot be given suchimportance as to prevail over the testimonies of the doctors whodeposed in court as experts – especially those who treated the plaintiff,immediately after the accident.

40.The injury was described as being “a small cut on the back” ofSusan’s head (Plaintiff depositions, vol. 1, p.7). On being shownhospital records in which the injury was recorded as having been a“contused lacerated wound one inch long in left parietal area just

along mid-line” (Plaintiff docs, vol.1, p. 94), Susan agreed that theinjury occurred at the area being pointed to by Mr. Tulsi i.e. “on thecrown and is approximately an inch long going forward from thecrown” and “slightly to the left of the midline”.

41.For better appreciation of the nature of the injury, an image ofthe human skull with description of its distinct parts or regions isreproduced below:

(Referred to

=https://www.google.co.in/search?qparietal+area+of+skull&source=lnms&tbm=isch&sa=X&ei=S8GBU8qyIIWKuAT_kIHoDw&ved=0CAYQ_AUoAQ&biw=1103&bih=501#facrc=_&imgrc=FBdrFqRIz6kV4M%253A%3Bm8FBIdtA8ZzxPM%3Bhttp%253A%252F%252Fimg.dictionary.com%252Fparietal-171762-400 320.jpgat 15:51 PM on 25-05-2014)

42.Dr. Arjun Sehgal, PW-19, expert witness for the Plaintiff, andneurosurgeon, stated in his chief examination that Susan’s x-raysindicated that she had fracture of the cervical 7th vertebra which hetermed to be “compression fracture of cervical seven vertebrae” and“a flexion injury.” In his cross-examination he stated that:

“This injury cannot be sustained only by compressionalone. Compression alone cannot cause the fracture ofthe sixth vertebra. There would be compression when aperson jumps into the pool, slips and hits the head. Itwould depend upon the impact and extent of compressionat the time of slipping.”

Dr. JA Smith in his cross examination by Mr. Tulsi states that theinjury in the instant case was one of flexion (p. 178). It is pertinent toextract from Dr. JA Smith’s chief examination by Mr. Bhatia (p. 175):

“The compression injury which you have now mentioned,is this different from flexion injury of the cervical spine? –By definition it is, and once again, one would have todefine the ways in which we are going to describe theseinjuries. Because if one considers flexion injury thenthere is some degree of compression occurring in that typeof injury and that degree of compression is usually in theanterior portions of the vertebral bodies. So that you can’talways say that it is this sort of injury or that sort of injury.But it’s matter of describing what one sees on the x-raysin correlation with what happened clinically. Maybe Ishould add to try and clarify what may be going throughyour mind and that is that if this was true verticalcompression injury, then one might expect that the featureswould be that of burst fracture.”

While PW-4 Dr. Smith maintained, throughout his chief and crossexamination that fracture like the one in the instant case always has

some degree of compression, he is categorical in his statement that theinjury in this case is largely flexion injury.

43.DW-1 Dr. Manshramani states in his chief examination onviewing the x-rays that PW 1/14 and PW 1/13 indicates fracture of C6and C7 (Def. docs p. 169). He terms the fracture an “unstable onecaused by compression and flexion forces” and states that fragmentindicates “severe compression” (p. 169). He states that PW 1/16shows the fragment of vertebra as well, the significance of which isthat it indicates an unstable fracture which causes paralysis of thelimbs (Def docs p. 161). The Learned Single Judge did not take intoaccount the evidence of DW-1 for two reasons. The first was that hewas seen to be an interested witness, who accompanied the ITDC teamto Australia, when deposition was recorded on behalf of the plaintiff;he assisted in the process on behalf of the defendant ITDC. Thesecond was that DW-1 could not be considered as an expert, given thenature of his discipline and lack of experience whatsoever in therelevant field. This Court is of the opinion that Dr. Manshramanicannot be considered an expert in terms of Section 45 of the EvidenceAct. He practiced as consultant physician, and neither as aneurologist nor an orthopedic surgeon.When asked in his crossexamination what his special subject of study was in M.D., Mr.Manshramani states “Medicine as whole. All systems of bodyexcluding skin.”Section 45 of the Evidence Act, 1872 may bereproduced here for convenience:

“45. Opinions of experts.- When the Court has to form anopinion upon point of foreign law, or of science, or art,or as to identity of handwriting or finger impressions, theopinions upon that point of persons specially skilled insuch foreign law, science or art, or in questions as toidentity of handwriting or finger impressions are relevantfacts. Such persons are called experts.

The threshold for the evidence of an expert witness is that of specialskill in the area foreign to the Court (Ref. State of Himachal Pradeshv. Jai Lal and Ors., (1999) 7 SCC 280; Ramesh Chandra Agrawal v.Regency Hospital Ltd and ors., (2009) 9 SCC 709). The SupremeCourt in Jai Lal (supra) has interpreted the meaning of this provision:

“An expert witness is one who has made the subjectupon which he speaks matter of particular study,practice or observation; and he must have specialknowledge of the subject. …therefore in order to bring theevidence of witness as that of an expert it has to beshown that he has made special study of the subject oracquired special experience therein or in other wordsthat he is skilled and has adequate knowledge of thesubject.”

Dr. Manshramani, DW-1 neither studied neurosurgery nor orthopedicsas matter of particular study or practice, and he did not possessspecial knowledge of the subject. His exposure to neurosurgeryextended to teaching the subject in the University he was employed in.On this count, this Court is of the opinion that Dr Manshramani’sevidence cannot be considered as opinion of an expert witness underSection 45 of the Evidence Act.

44.This Court thus concludes that the injury suffered by Susan wasa fracture of the cervical 6[th]and 7[th]bones - flexion injury with somedegree of compression, resulting in quadriplegia. This injury wascaused when Susan jumped into the swimming pool, with her feetfirst. On making contact with the floor of the pool, her feet slippedforwards, causing her to fall backwards and hit her head to the side ofthe pool.

Point No. 3(ii): Whether the nature of the injury and the manner inwhich it was sustained was established by the plaintiff, so as to createa presumption of negligence on the part of the ITDC?

45.This Court is of the opinion that Susan’s injury leading toquadriplegia is one that does not happen in the ordinary course ofthings, on jumping into the shallow end of the pool, especially givenher status and background as champion swimmer. For the sake of acomplete appreciation of whether the evidence proved what shealleged, the following extracts of her cross examination, conducted inAustralia, on behalf of ITDC on 24-10-1991 during the commissionexecuted for the purpose:

“Now, Miss Beer, if I may state that the place of the headinjury as we have now agreed cannot be caused bystriking against the wall of the pool. What is youranswer?

(Ans) My answer is that I was injured in the way that Iremember and the way that told you yesterday that theinjury occurred. I jumped in and my feet slipped on thebottom of t pool and I fell back striking my head againstthe side of the pool. Now, whether it was actually theedge the pool or the side of the pool I’m not in

position to say with any certainty. It happened in afraction of second.

I further put it to you that it is impossible to receive thisinjury by striking against the wall or the edge of thepool?

(Ans)I say to you that the accident happened as Iremembered and told you.

I put it to you that you could only have sustained thisinjury if you had struck your head against the bottom ofthe pool?-

(Ans) My head was nowhere near the bottom of the pool.I jumped in feet first.”

In the cross examination, Susan was asked to respond to an entry inthe medical records of the Princess Alexandra Hospital, whichmentioned inter alia, that she had sustained an injury in “diving”accident. She replied, that she was “never interviewed by Dr. Daviesor any other doctor at the Princess Alexandra Hospital. I was neverasked with regard to my injury and how it occurred….I the HolyFamily Hospital in India I was not asked. I was not in position to beasked how I sustained the injury.” Later, the same day, i.e on 24-10-1991, Susan asked to be shown the report, while answering thequestion put forth by Mr. Tulsi; her further statement reads as follows:

“In this report in this paragraph was referred to, thewording is such that, the facts are this young woman wasadmitted. That is fact. It says that the accident was saidto have occurred. She was said to have dived in. She wassaid to have floated. It says here, she was not conscious.Now that is an out and outright lie. I was conscious allthe time. I remember being lifted out the water. Iremember being on the side of the pool. I remember

going to the hospital. I remember being in the examiningroom. I clearly remember jumping into the water, my feetslipping on the slippery tiles when my feet touched thebottom of the pool and falling back. I place no respect tothis document by Dr. Davies at all….”

Susan was also asked whether she changed her version at the time offiling of the suit for damages into having jumped and not dived intothe pool. To this suggestion, she replied:

“When I was admitted to Holy Family Hospital I was inno position to be asked how the accident occurred. I wastaken into the examination room and I was sedated forthe skeletal tong traction. I was not asked then nor anyothertimeinanyotherhospitalhowtheinjuryoccurred…..”

Further pointed suggestion was given by the ITDC counsel, whichwas emphatically denied:

“you entered the pool in grossly negligent manner bydiving into the shallow side with greater force than thedepth of the pool would accept?—(Ans) That is not true.

And you suffered an injury on account of - wholly onaccount of your own negligence?_ (Ans) That is not true.

You have fabricated the manner of accident at the stageof filing of the suit which is contradictory to the medicalreports relied upon by you?---- (Ans) That is not true. Itis not contradictory to any medical reports.

Being an expert swimmer, you would have been able tomake an accurate guess with regard to the depth of theshallow side; is that not so?— (Ans) That’s true; yes. Icould see that it was shallow water. I could see that itwas clear sparkling water and I umped in and my feetslipped on the tiles on the bottom of the pool as I have

said. I have been jumping into pools all my life. I learnt toswim when I was about five or six years old.”

In view of the above discussion and the state of evidence, it is heldthat the plaintiff established the facts and circumstances relating to themanner in which the injury was sustained. The burden consequentlyshifted on to ITDC to show either exercise of due care and caution andthus absence of negligence on its part, or that the injury of therespondent was not result of the its negligence.

46.The Learned Counsel for ITDC submitted that the burden ofproof to prove negligence lies on the plaintiff/respondent drawingfrom Subhash Chander v. Ram Singh 1972 ACJ 58, Aswini Kumar v.UT of Tripura AIR 1969 Tripura 26, Champalal Jain v. BPVenkataraman, 1966 ACJ 224, Kundan Bai Agarwala v. Skh SafdarAli, AIR 1960 Pat 266 Para 4, 5. However, this Court is of the opinionthat none of these cases finds application since the conditions fortriggering application of the maxim res ipsa loquitur are fulfilled inthis case. Thus, this Court is not persuaded by the submission of theITDC that the burden in the instant matter to prove negligence lay onthe plaintiff.

47.Once the presumption of defendant’s negligence begins tooperate, the burden of proof is on the defendant to pursue two coursesof action available to him, as laid out in Shyam Sunder (supra):

“13. The answer needed by the defendant to meet theplaintiff’s case may take alternative forms. Firstly, it may

consist in positive explanation by the defendant of howthe accident did in fact occur, of such kind as toexonerate the defendant from any charge of negligence.

14. It should be noticed that the defendant does notadvance his case inventing fanciful theories, unsupportedby evidence, of how the event might have occurred. Thewhole inquiry is concerned with probabilities, and factsare required, not mere conjecture unsupported by facts.As Lord Macmillan said in his dissenting judgment inJones v. Great Western [1930] 47 T.L.R. 39:

The dividing line between conjecture and inference isoften very difficult one to draw. conjecture may beplausible, but it is of no legal value, for its essense is thatit is mere guess. An inference, in the legal sense, on theother hand, is deduction from the evidence, and if it is areasonable deduction it may have the validity of legalproof. The attribution of an occurrence to cause is, Itake it, always matter of inference. The cogency of alegal inference of causation may vary in degree betweenpractical certainty and reasonable probability. Where thecoincidence of cause and effect is not matter of actualobservation there is necessarily hiatus in the directevidence, but this may be legitimately bridged by aninference from the facts actually observed and proved.

15. In other words, an inference is deduction fromestablished facts and an assumption or guess issomething quite different but not necessarily related toestablished facts.

16. Alternatively, in those instances where the defendantis unable to explain the accident, it is incumbent uponhim to advance positive proof that he had taken allreasonable steps to avert foreseeable harm.

[emphasis supplied]

48.ITDC, in the instant case attempted both courses of action byfirst submitting that the incident in fact occurred because Susan dived,and did not jump in to the pool, thus not as result of its negligenceand second, by attempting to adduce proof to show that the floor of thepool was not slippery and did not have algae, thus not as result of abreach of their duty of care.

49.However, prior to entering the question of ITDC’s discharge ofthe burden of proof, this Court is compelled to observe that theevidence of the expert witnesses cannot be used to infer the manner inwhich the injury was sustained by Susan, i.e. whether she dived orjumped into the pool for two reasons. First, the submission of ITDCthat the injury was an unstable burst fracture is contradicted by theITDC’s own witness DW-1 Dr. Manshramani in his testimony andsecond, any attempt to infer the manner in which Susan entered thepool, from the nature of injury she suffered, would merely beconjectural. These reasons are elaborated upon below.

50.During examination, when asked whether the degree ofcompression reflected in the x-rays of the Susan’s injury could haveresulted if one were to hypothetically miscalculate the depth of thepool and dive in thus crashing “straight onto the floor”, PW-4 Dr. JASmith replied in the negative. He states “I think it’s much more likelythat this would have produced what we call burst fracture”. PW-4also stated that true compression injury would most likely haveresulted if the Susan had dived into the pool from the shallow end ofthe pool where the water was three feet deep, if her head struck thebottom of the pool causing an injury to the centre of the top of the

head. Both Dr. Arjun Sehgal, and Dr. JA Smith, deposed in their crossexamination and chief examination respectively that burst fracturewould have resulted from true vertical compression injury. Boththese expert witnesses having examined the plaintiff at the earliestpoint in time, deposed such was not injury in the x-rays of this case.Thus, both these expert witnesses for the plaintiff deposed that theinjury was not burst fracture i.e. true compression injury.

51.ITDC’s submission is that the injury suffered by Susan is anunstable fracture causing paralysis. Its witness DW-1, after viewingx-Rays PW 1/7 to PW 1/16, deposed that the x-rays indicate anunstable fracture which causes paralysis of the limbs. In thesubmissions of ITDC, it is argued that heavy pressure on the upperpart of the skull causes unstable fracture of the cervical, whichcompresses the spinal cord to cause paralysis. It is also the case of theITDC, that burst fracture is an unstable fracture and that diving is away to cause burst fracture. It is argued that unless there is heavypressure or compression on the C6 and C7 vertebrae, an unstable burstfracture cannot be caused. DW-1 also stated that the compressionforce resulting from someone slipping and hitting the back of his orher head to the wall of pool is not sufficient to cause the fracture ofC6 and C7 vertebrae, as in the instant case, because when one hits hisor her head on the back, the chin hinges forward and makes contactwith the upper part of the chest, thus preventing an injury to the C6and C7.

52.At the outset, this submission of the appellants falls as theirexpert witness DW 1, Dr. Manshramani in the cross-examination

states, when asked if he sees any evidence of burst fracture in any ofthe x-rays of Susan: “Burst fractures cannot be seen in x-rays”. Byvirtue of this glaring inconsistency in ITDC’s case and its evidence,this Court is not swayed by its arguments with respect to the nature ortype of injury.

53.Moreover, this Court is also not persuaded by this ITDC’ssubmission as it is clear that only the nature and type of the injury canbe established by the evidence of the doctors in their testimony, andthat the version of events leading to the injury cannot be establishedthrough expert witnesses. Only the account of events from theplaintiff/plaintiff’s eye witnesses or direct contradicting testimonyfrom the eye witnesses on behalf of the defendant can be used todiscern the manner in which an injury of this nature could haveresulted.Anyotherevidenceisnecessarilyhypotheticalandconjectural. This is also evident from Dr. Smith’s statement afterrecounting Susan’s version of events:

“…if that is the state of events, then she could havesustained such an injury when her head hit the sideof the pool. But then if she subsequently fell into thepool and her head was going downwards, then theback of her head could also have hit the bottom ofthe pool. And in that way there could have been aflexion injury. Now, what the truth is, I don’t know.”

Dr. Sehgal also stated that

“The injury which the Respondent has suffered couldhave been caused from the description given to me of theaccident”

These witnesses are only able to state that the injury of Susan was aplausible consequence of her having jumped into the pool, feet first.Even DW-1 Dr. Mansharamani, the expert witness for ITDC, stated inhis cross-examination that:

“It is correct that if person jumps into the pool slips andfalls backwards and his head hits wall at the back withgreat force, his head may suffer both flexion andcompression injuries. – It will mainly be flexion injury.”

For the above reasons, this Court is of the opinion that the experttestimony on the nature of the injury (i.e. that it is largely flexioninjury with some degree of compression) cannot be relied upon inorder to establish the manner in which the injury was suffered.

54.During the hearing of the appeal – as well as during the trial,Learned Counsel for the ITDC laboured to establish that the nature ofthe injuries can be used to infer the manner in which the injuryoccurred. The submission was that the nature of the injury indicated anunstable burst fracture and compression injury, which could onlyresult from diving, head first in to the pool. Apart from the fact thatthis line of reasoning is entirely conjectural, as observed earlier, thiseffort was entirely dissimulative to say the least. On the point of themanner in which the injury was sustained, the deposition of PW-1 andPW-2 were clear as to what transpired on the fateful day; the re-creation of the incident was coherent and clear. ITDC’s crossexamination and attempts to discredit these depositions and thereferences to the expression “jump” in various documents, tosomehow show that Susan dived into the pool head first at the shallowend were baseless. In the cross examination of PW-19, Dr. Sehgal(who deposed that he was the first doctor to examine the plaintiff onthe date of the incident, after she was taken to the hospital) asuggestion was put to him more than once that Susan had not jumpedbut dived. At each stage, he deposed that the account received by himwas that she jumped into the pool – Susan too had told him that. ITDCplaces great emphasis on two documents, including one recorded byDr. Sehgal, which refer to the plaintiff having dived, resulting in theincident. The concerned doctor, Dr. Middha, was not examined;moreover, Dr. Sehgal stated that even though at one place, theexpression “dived” was used, the same day, in note, Ex. PW-2/34 hehad expressly recorded that the plaintiff was said to have “jumped”into the pool. The first document in this regard also stated that theplaintiff is ‘alleged’ to have dived into the pool.

55.This Court is of the opinion that the terms “jumping” or“diving” cannot be over-emphasized on behalf of the Defendant/ITDCto derive semantic hairsplitting mileage. Here, it would be useful tonotice that in the suit, the plaintiff had stated that as soon as she“jumped into the water and her feet touched the floor of the pool, theyslipped resulting in loss of control of the plaintiff and the plaintiff fellbackwards and her head hit against the wall of the pool.”Afterstating at two places in the written statement that the plaintiff did notjump into the pool in the manner alleged by the plaint, it was averredby the ITDC that:

“ Apparently, the plaintiff fell into the swimming poolotherwise than as alleged and suffered injury because ofher own negligence and failure to take due care. As amatter of fact, the plaintiff and her brother had indulgedin some abrupt play and shockingly all of sudden thePlaintiff was seen later in the swimming pool before anyone of those present at the swimming pool could haveknown what was happening and helped her. The accidenthappened suddenly and in such manner that no onecould have avoided the accident.”

From paragraphs 7 and 9 of the written statement, it is clear that theITDC merely states by way of conjecture that the respondent had“fallen” into the pool otherwise than as claimed by her withoutadvancing any averment on how Susan had fallen into the pool.Moreover, in para 6, the ITDC has itself used the terms jumping anddiving loosely and interchangeably, claiming that either method ofentering the pool was wrong. Thus, it is clear from their averments inthe written statement that their case never hinged on how Susan wasnegligent by “diving” as opposed to “jumping”.

56.As regards DW2’s testimony as to the manner in which theinjury was sustained, ITDC denied that the plaintiff’s relatives tookher out of the pool; it averred that one of its attendants, BalramVerma, DW-2, brought Susan out of the pool. However, this Court isconstrained to disregard the evidence of DW-2 on the manner inwhich the injury was injured, due to the several inconsistencies in hisdepositions. He stated there was bump on Susan’s head (at p. 245defendant documents) and that it had become “redish”. This ispatently false given that both parties in this dispute agree that Susan’s

lacerated wound was around the crown of head, covered by hair, andthere was no injury to any part of her head that could have becomereddish. Likewise, while the written statement of the ITDC itself statesin paragraph 11 that the parents of Susan were relaxing in the chairsnear the pool, DW-2 contradicts these statements by stating thatSusan’s mother was not in the vicinity of the accident (p. 285) andfather was at the counter near the register (p. 259). The single judgeobserved in relation to DW-2 in the impugned judgment:

“DW2 Mr Balram Verma was stated to have been posted atAkbar Hotel as lifeguard. According to him, he had joinedITDC on 10.03.1978. Mr Verma stated that on 05.05.1978he was present at the swimming pool in his lifeguard gearand the manager was sitting with him. One elderly manaccompanied by two children, one of whom was boy andthe other was girl, came to the pool, in playful mood andthey kept their towels near the very first umbrella on thepool. The boy and the girl were playing the game ofcatching each other. While doing so, the girl suddenly tooka vertical dive in the shallow portion of the swimming pool.According to this witness, he immediately ran on seeing thisincident and the other guests also shouted. The other guests,who were from Aeroflot, also helped him in holding the girl.According to him, he placed the girl on the floor on the edgeof the pool and he found that there was bump on themiddle of the head of that girl and it had become reddish.He stated that he obtained ice and bandage from his officewhere first-aid articles were kept and then he applied iceand bandage on the head of that girl. He stated that he aswell as the girl's father asked her to shake her leg but shewas not able to move her leg and she started weeping.

49. If this witness is to be believed, the plaintiff took avertical dive in the shallow portion of the swimming pool. Inhis cross-examination, he was asked as to what was the

distance between the wall of the pool and the place on thefloor where the girl struck her head. His answer was --―two feet. I am straightaway inclined to agree with Mr Madan Bhatia, the learned senior counsel who appeared onbehalf of the plaintiff, that this would be virtualimpossibility. From the edge of pool at the shallow endwhere the water was only 2' 6'' to 2' 9'' deep, it would beimpossible for any person to take vertical dive and hit hisor her head within two feet of the wall. According to theevidence on record, the plaintiff was about 5' 6'' in height. Ifshe was standing on the edge of the pool in stationaryposition, she would probably have to jump six feet into theair to enable her body to turn so that it could make avertical impact with the water in the pool. This could nothave been done and in fact was not done as no witness hastestified to this. Apart from that, Mr Verma stated that thegirl and boy were running and they were playing the gameof catching each other and it was then that she took avertical dive in the shallow portion of the swimming pool.When person is in motion, it would be impossible for thatperson to have hit his head on the floor of the swimmingpool within two feet of the edge. The momentum would takethat person much ahead. Therefore, the theory propoundedby this witness is only to be stated to be rejected.”

Given the inconsistencies in his depositions, this court thus finds noinfirmity with the approach and conclusions of the Learned SingleJudge as regards DW-2’s account of the manner in which the injurywas sustained.

57. Having not pleaded anywhere in the written statement that theplaintiff dived headlong into the swimming pool (discussed in greaterdetail under Point no. 3(iii)), ITDC could not have taken advantage ofthat ambivalence and theorized, during the trial that Susan in factdived head first. Its efforts to somehow establish that the injuries

sustained by Susan could be explained only as result of burst stablefracture, i.e. implying vertical impact on the head due to headlongfall, are speculative afterthoughts. For these reasons, this Courtobserves that Susan has established the nature and the manner inwhich the injury was sustained, thus creating presumption ofnegligence on the part of the ITDC.

Point No. 3(iii): Can the question of the Respondent having jumped ordived be decided at this stage and if so, whether disregarding hospitalrecords was impermissible under Section 92 of the Evidence Act58.It would be useful in the context of the question to beconsidered, to extract the findings in the impugned judgment, whichdiscuss the direct evidence as to what happened, more particularly thetestimonies of the plaintiff, Susan (PW-1) and her father GeoffreyBeer (PW-2). As to Susan’s deposition, the Learned Single Judgenoticed, inter alia, that:

“33. The plaintiff further stated in her testimony that shehad gone to take swim on 05.05.1978 in the swimmingpool at Akbar Hotel at about 5 O'clock. According to her, ithad been hot day and they had gone down to the pool; herfather, mother, her younger brother and herself. When theygot to the pool side area, her father, brother and motherwent ahead to get into the pool and she stopped at the edgeof the pool to take off her robe and her sandals. Thereafter,she stated that she remembered that her hair got tangled inthe strap of her swimming costume. She took time to fix thatup and to untangle it. Then she walked over to the shallowend of the pool and she jumped into the pool. She stated thatwhen she jumped in the pool she felt that her feet touchedthe bottom of the pool and immediately they slid forwardthrowing her backwards against the side of the pool. She

felt her head strike the side of the pool. Then her brotherand father came over and supported her in the pool andthey, with the help of another person, whom she did notknow, lifted her on to the side of the pool. She stated thatshe remembered that her father was being very careful inlifting her and he supported her very gently but verystrongly and her head was very stable in the lifting. Shestated that when her feet touched the bottom of the pool, shefound it to be very slippery and immediately both her feetslid forward. She stated that her body was tingling at thattime, right from her shoulders down to her feet. And, thenher body started to go numb. She stated that she also had asmall cut on the back of her head where it struck the side ofthe pool and there was bit of blood in the water of thepool. She stated that while they were waiting for theambulance, they transported her on stretcher-like thing tothe manager's room where they waited for about two hours.Thereafter, she was transported to Holy Family Hospital inthe said ambulance. Dr Arjun Sehgal was present at HolyFamily Hospital and he took charge of the case. Hearranged to have the X-rays taken etc.34. This part of her testimony has gone unchallenged. Fromthe above evidence, it is clear that the plaintiff has beenable to establish that she had gone to take swim alongwith her family members in the swimming pool at AkbarHotel at about 5 pm on 05.05.1978. That when she jumpedinto the pool from the shallow end, her feet, on touching thefloor of the pool, slid forward as the same was slippery.Because of this, her head hit the side of the swimming pool.Consequent thereupon, she suffered the injuries to hercervical spine and the lacerated injury on her head. Theinjury caused to the cervical spine and particularly the 6thand 7th vertebra, as indicated above, resulted in herultimately becoming quadriplegic, i.e., not having anysensation below her neck. In layman's language, she wasparalyzed neck downwards. It is also clear from the

testimony of PW4 Dr J. A. Smith that there was no chance ofher recovery and the injury sustained by her was for life.”

PW-2’s testimony was, likewise, discussed in the following manner:

“With regard to the manner in which the incident tookplace, PW2 Mr G. L. Beer stated that his son entered thepool just before his wife and himself. His wife enteredthrough the ladder because she did not like immersingquickly. He walked past the ladder and as he had an injuredknee at that time and was on crutch, he sat on the edge ofthe pool and then slipped into the water so as to avoid anyjar to his knee, which would be caused by jumping in. Hestated that the plaintiff entered the pool after them. He saidthat she removed her gown and sandals while his wife andhe swam to the centre of the pool and their son was possiblyhalf way from the centre of the pool. He stated that theywatched the plaintiff walk down the edge of the path whereshe had draped her gown and sandals. She came straightfrom the bottom of the path at the shallow section andjumped into the water from the edge of the pool. The waterwas about 2' 6'' deep at that point. He then saw her slipbackwards and disappear under the water. He believed thatshe may have struck her head. Then, he stated that his wifewas obviously also watching because she called out -“Sue'shurt”. He then immediately swam where the plaintiff was.His son Nicholas had also obviously seen the incident andhe reached the plaintiff before him (Mr G. L. Beer). Thesaid witness positively stated that he saw the plaintiffslipping backwards. He stated that although he did not seeher head striking against anything, but she disappearedunder the water and he feared that she struck her headunder the wave trap.

41. He further stated that when he reached the place wherethe plaintiff was, his son Nicholas was supporting her. Shewas on her back, face upwards and she had small cut onthe top of her head which he estimated was between halfand three quarters of an inch long. He stated that there was

little bit of blood coming out of the cut and it is then thathe realized that she had struck her head on the edge of thepool.

42. PW2 Mr G. L. Beer further stated that the plaintiff wasquite conscious, but dazed and he went around the otherside of her. His son Nicholas was on that side. He asked abystander to help him lift her from the pool. With great carethey lifted her and slid her over the edge of the pool. Hestated that he was conscious that his foot slipped on theglazed tiles on the floor of the pool. He knelt beside her andshe said- “Oh no please”. He asked her to gently move hertoes and fingers and found to his horror that she could notmove them. He then asked bystander to get the manager ofthe hotel and doctor. It is further stated by the saidwitness that after some time two men arrived, one with aportmanteau and he turned out to be Dr Chowdrah and theother, he presumed, was the manager of the hotel. The saidwitness was angered by the fact that the said doctor merelysaid that the plaintiff was suffering from concussion andthat she should be taken to the hospital for the night in thehotel car. He demanded that an ambulance be called with aspecialist doctor. The manger suggested that the plaintiff belifted but the witness Mr G. L. Beer absolutely refused toallow her to be moved. However, they gently moved her onto lylo because it was very hot at the pool side. Accordingto this witness the ambulance took about two hours to arrivewhich was an incredibly long time. Thereafter, she wastaken to Holy Family Hospital. doctor was attending,whose name was later found to be Dr Arjun Sehgal. Herequired X-rays to be taken. The doctor told him that herdaughter had suffered spinal injury and she was paralyzedfrom the chin down.”

59.The Learned Counsel for the ITDC argued that the LearnedSingle Judge erred in rejecting the submission that the plaintiff haddived and not jumped in to the pool, finding that is argued to be

contrary to the evidence on record. The Counsel submits on evidence,first, that the oral evidence of the respondent cannot be allowed as itcontradicts the hospital records in PW 19/2 and 19/4, history sheetssigned in the hand of PW 19, Dr. Arjun Sehgal, thus violating Section92, Evidence Act; second, that the Single Judge ignored the evidenceof E.J. King, PW 7, Susan’s swimming coach who stated that the usualentry into the pool is not to jump but to dive, and that swimmers aretrained to program themselves subconsciously to dive; third, that theSingle Judge has not considered that Susan’s doctor himself states thatit was case of diving and not jumping. The Counsel for the ITDCalso argued that the nature of the injury indicates that Susan must havedived as such an injury could not have resulted from jumping into thepool feet first.

60.However, the Learned Single Judge had observed in Para 45 ofthe impugned judgment that the alleged fact of diving not having beenpleaded in the written statement, cannot be introduced in evidence bythe ITDC. The appellant ITDC has not challenged this finding of theLearned Single Judge in their grounds of appeal, and as such, thisfinding continues to stand.Rule 2 of Order VIII of the CivilProcedure Code may be reproduced for convenience:

“New facts must be specially pleaded – The defendantmust raise by his pleadings all matters which show thesuit not to be maintainable, or that the transaction iseither void or voidable in point of law, and all suchgrounds of defence as, if not raised, would be likely totake the opposite party by surprise or would raise issuesof fact not arising out of the plaint, as, for instance,

fraud, limitation, release, payment, performance, orfacts showing illegality.”

The meaning of this Rule is elaborated upon in Udhav Singh v.Madhav Rao Scindia, AIR 1976 SC 744, paragraph 22 that:

“If the plea or ground of defence 'raises issues of fact notarising out of the plaint', such plea or ground is likely totake the plaintiff by surprise, and is therefore required tobe pleaded. If the plea or ground of defence raises anissue arising out of what is alleged or admitted in theplaint, or is otherwise apparent from the plaint itself, noquestion of prejudice or surprise to the plaintiff arises.Nothing in the Rule compels the defendant to plead sucha ground, nor debars him from setting it up at laterstage of the case, particularly when it does not depend onevidence but raises pure question of law turning on aconstruction of the plaint. Thus, plea of limitation thatcan be substantiated without any evidence and isapparent on the face of the plaint itself may be allowed tobe taken at any stage of the suit”

61.It is settled principle of law that the decision of case cannotbe found on grounds outside the pleadings of the parties. See Trojanand Co. v. Nagappa AIR 1953 SC 235, Kalyan Singh Chouhan v. CPJoshi, (2011) 11 SCC 786. Evidence in absence of pleadings in thatregard and evidence produced by the parties at variance with thepleadings cannot be considered or relied upon. See Union of India v.Ibrahim Uddin, (2012) 8 SCC 148, ¶62; Kashi Nath through LRs. v.Jaganath (2003) 8 SCC 740; Ram Sarup Gupta through LRs v. BishunNarain Inter College, AIR 1987 SC 1242.

62.The plaint states at paragraph: “That the plaintiff jumped intothe pool from the shallow side opposite the diving board.” The

Plaintiff in her chief examination also states that as soon as shejumped into the pool, her feet slid forward throwing her backwardsagainst the side of the pool, thus causing her head to strike the side ofthe pool. During her cross-examination, the Plaintiff reiterates that she“jumped in” and her “feet slipped on the bottom of the pool” and she“fell back” and struck her head. When told that she could have onlysustained this injury by striking against the wall or the edge of thepool, she replied “My head was nowhere near the bottom of the pool. Ijumped in feet first.” On re-examination, she stated:

“If, as the defendants say, I had dived into the pool fromthe shallow end I would have struck the bottom of thepool first with my hand because you always dive withyour hands extended to break the water before your headhits the water. If I had dived and struck the bottom of thepool, my hands would have struck first and then the frontpart of my face or my forehead would have struck thebottom of the pool.”

63.ITDC’s Written Statement at no point advanced the argumentthat Susan had in fact, dived and not jumped in to the pool. It wouldbe relevant to extract the relevant parts of the written statement:

“6. As regards para 6 of the plaint, the Appellant deniesthe same as stated. The plaintiff is not aware of theaverments made therein…The Respondent should nothave jumped into the pool from the shallow side. Forjumping into the swimming pool, the swimmers havenecessarily to use the diving board and dive on the deepside into the swimming pool. The water below the divingboard is deep and not shallow and jumping or diving intothe swimming pool is permitted only from the divingboard accordingly. The jumping or diving on the shallow

side by the Respondent was wholly wrong, negligent toand contrary to the well accepted norms of swimming andin violation of the laid down Rules. …There are fixedstairs built into the swimming pool for going into theswimmingpoolforswimmingandobviouslytheRespondent did not enter the swimming pool through thestairs which was wholly and negligent act on her partinstead of getting into the swimming pool through thebuilt in stairs. Obviously, therefore, the Respondent hadindulged in wrong and negligent act of jumping into thepool from the shallow side even assuming withoutadmitting that she had jumped into the pool, as alleged byher, although the incident was clearly otherwise and notas alleged.

7. …The Respondent had obviously fallen into theswimming pool otherwise than as alleged by her and noteven jumped into the swimming pool as alleged by her.

9. …Apparently, the Respondent fell into the swimmingpool otherwise than as alleged and suffered injurybecause of her own negligence and failure to take duecare.

10. …As regards the safety or otherwise of jumping onthe shallow side of the pool, it depends upon how theperson may jump into the pool inspire of the fact that it isnot to be done and if it is done it necessarily means thatthe entire responsibility for consequences would be of theswimmer.

64.As briefly mentioned earlier, from paragraphs 7 and 9, it is clearthat the ITDC merely states by way of conjecture that Susan had“fallen” into the pool otherwise than as claimed by her, withoutadvancing any averment on how Susan had fallen into the pool.Moreover, the extract of paragraph 6 of the written statement indicatesthat the ITDC only avers that Susan ought not to have jumped into the

pool in the shallow side. Further, in para 6, the ITDC has itself usedthe terms jumping and diving loosely and interchangeably, claimingthat either method of entering the pool was wrong. This averment inthe written statement thus clearly does not hinge on whether divingwas particularly negligent as against jumping.

65.That Susan “took vertical dive” was raised for the first time bythe ITDC in evidence, in the statement of DW 2, Shri Balram Verma,lifeguard on duty (whose testimony has been held to not be credible,under Point 3(ii)). The theory that Susan dived and did not jump in tothe pool was then put forth as hypothetical question to Susan in hercross examination. In fact, in the cross-examination of plaintiff’sexpert witness Mr. JA Smith, on behalf of ITDC, the Learned Counselfor Susan objected that ITDC’s “initial case” during his crossexamination was that the respondent’s supposed dive was at an angleof 45 degrees, after which he has shifted his case to 60 or 70 degrees.To this, ITDC’s counsel responded categorically (p. 191 of thecommission’s procedings) stating: “I’ve not put my case. All these arehypothetical.” Subsequently (p. 192), Mr. Tulsi on behalf of ITDCalso clarified to Dr. AJ Smith, PW-4 that his hypotheticals were notwith respect to the Respondent’s specific incident (p. 192).66.The Counsel for ITDC sought to argue that had Susan dived andnot jumped into the pool, thus sustaining an injury that could notpossibly haveresultedfromjumping.However,nopleadingsregarding the alleged diving were advanced in the written statement.This theory of diving arose only in ITDC’s evidence and in the cross-examinations of Susan’s witnesses, and subsequently in the arguments

of the ITDC. This Court is mindful that in Shyam Sundar (supra), theSupreme Court (citing Lord Macmillan’s dissent in Jones v. GreatWestern – quoted at paragraph 48 in this judgment) noted thedifference between defendant advancing case by conjecture andone by inference from the adduced evidence. The latter, it wasobserved, was permissible. This Court holds that even if ITDC soughtto advance its case by inference from the established evidence, itought to have pleaded that case in its written statement. This Courtthus agrees with the findings of the Learned Single Judge in thisregard. In absence of pleadings in this regard in ITDC’s writtenstatement, this Court is of the opinion that the question of whether therespondent dived or jumped into the pool cannot be considered in the

appeal.67.Thisbeingthecase,thefurtherquestioniswhetherdocumentary hospital records were permitted to be contradicted byoral evidence of PW 19 contrary to Section 92 of the Evidence Actdoes not even come up for consideration. Notwithstanding this, fewobservations on this submission are apposite. Counsel for ITDC triedto argue that the contents of the hospital records indicate that therespondent has “dived into the pool”, and that Dr. Arjun Sehgal, PW19 has contradicted the content of documents PW 19/2, PW 19/4 in hisoral evidence by stating that that the respondent “jumped” into thepool in oral evidence. Learned Counsel had placed reliance on Section92 of the Evidence Act, the “best evidence rule” and on Duli Chand v.Jagmender Dass, 1990 1 SCC 19, Roop Kumar v. Mohan Thedani,2003 6 SCC 595Pradip Buragohain v Pranati Phukan, (2010) 11

SCC 108, and Gurnam Singh v. Surjit Singh and Ors., 1975 (4) SCC404 to advance his argument. This Court finds that this argument isnot persuasive.

68.Section 91 of the Evidence Act reads:

“91. Evidence of terms of contracts, grants and otherdispositions of property reduced to form of document.-When the terms of contract, or of grant, or of anyother disposition of property, have been reduced to theform of document, and in all cases in which any matteris required by law to be reduced to the form of adocument, no evidence shall be given in proof of theterms of such contract, grant or other disposition ofproperty, or of such matter, except the document itself, orsecondary evidence of its contents in cases in whichsecondary evidence is admissible under the provisionshereinbefore contained.

Exception 1.-- xxSection 92 reads:

“92. Exclusion of evidence of oral agreement.- When theterms of any such contract, grant or other disposition ofproperty, or any matter required by law to be reduced tothe form of document, have been proved according tothe last section, no evidence of any oral agreement orstatement shall be admitted, as between the parties to anysuch instrument or their representatives in interest, forthe purpose of contradicting, varying, adding to, orsubtracting from, its terms:

Proviso xxx”

Section 92, like Section 91, is based on the “best evidence rule” asnoted in Bai Hira Devi and Ors v. The Official Assignee of Bombay,AIR 1958 SC 447. In Bai Hira Devi (supra), it was held that:

“The normal rule is that the contents of document mustbe proved by primary evidence which is the documentitselfinoriginal.Section 91 isbasedonwhatissometimes described as the "best evidence rule". Thebest evidence about contents of document is thedocument itself and it is the production of the documentthat is required by s. 91 in proof of its contents. In asense, the rule enunciated by s. 91 can be said to be anexclusive rule inasmuch as it excludes the admission oforal evidence for proving the contents of the documentexcept in cases where secondary evidence is allowed tobe led under the relevant provisions of the EvidenceAct.”

69.The need to prove contents of document by producing it iselaborated upon by the Supreme Court in Roop Kumar (supra), whichjudgment the Learned Counsel for appellants himself has placedreliance upon. The Court observed there that the principle underlyingthis provision is to integrate all elements of jural act namely, (a) theenaction or creation of the act. (b) its embodiment in singlememorial when desired; (c) its solemnization on fulfillment of theprescribed form if any; and (d) the interpretation or application of theact to the external objects affected by it. The consequence ofintegrating all elements of jural act into single written expression,is to deprive of legal effect all other utterances as regards the jural act.In the Court’s words:

“16. …when jural act is embodied in single memorialall other utterances of the parties on the topic are legallyimmaterial for the purpose of determining what are theterms of their act. This rule is based upon an assumedintention on the part of the contracting parties, evidencedby the existence of the written contract, to place

themselves above the uncertainties of oral evidence andon disinclination of the Courts to defeat this object.When persons express their agreement in writing, it is forthe express purpose of getting rid of any indefinitenessand to put their ideas in such shape that there can be nomisunderstanding, which so often occurs when reliance isplaced upon (SIC) statements. Written occurs presumedeliberation or the part of the contracting parties and it isnatural they should be treated with careful considerationby the Courts and with disinclination to disturb theconditions of matters as embodied in them by the act ofthe parties. (see Mc Kelvey's Evidence p. 294).

17. It is likewise general and most inflexible rule thatwherever written instrument are appointed, either by therequirement of law or by the contract of the parties, to bethe repositories and memorials of truth, any otherevidence is excluded from being used either as asubstitute for such instruments, or to contradict or alterthem. This is matter both of principle and policy.”

70.This Court is compelled to observe that the record of an injurydoes not comprise jural act that ought to be reduced into writing soas to deprive all other occurrence towards the act of any legal or juraleffect. No rule, statutory enactment or compulsion that enacts anobligation to record so, as to exclude all other versions, was brought tothe notice of the Court. Thus, to use the framework of Section 91 and92 and the best-evidence rule in the context of hospital recordsrecording injuries is misguided.

71.Furthermore, the words “or any matter required by law to bereduced to the form of document” in Section 92, albeit present inSection 91 of the Act, do not carry the same meaning as those inSection 91. This is so because Section 92, unlike Section 91, states

that “no evidence of any oral agreement or statement shall beadmitted, as between the parties to any such instrument or theirrepresentatives in interest”. This indicates that the matters “requiredby law to be reduced to the form of document” under Section 92 arenecessarily matters which are reduced into instruments between“parties” to the instrument. This view finds support in Sarkar onEvidence, 15[th]ed. Rep. 2004, vol. 1, p.1311-1311 which states:

“… the words “as between the parties … interest” are tobe read along with the words “contract, grant or otherdisposition of property” and also along with the words“or any other matter… of document”. The words as“between the parties to any such instrument” furtherpoint out that s 92 applies only to dispositive documentsie documents by which rights are disposed of, eg:“contract, grant or other disposition of property”. Thosewords naturally apply to dispositive documents betweencontracting parties or parties to whom any property istransferred.

… Thus words “any matter” in the phrase “any matterrequired by law to be reduced to the form of document”have therefore reference to such matter as createsdispositive documents, such as “contract, grant or otherdisposition of property.” Taken together, the wordstherefore mean, any matter required by law to be inwriting, and which is “contract, grant etc.” ie thewords “any matter required by law…document” areejusdemgeneriswith“contract,grantorotherdispositionofproperty.”Documentsotherthandispositive documents required by law to be reduced towriting do not come within the section.”

72.The omission of these words from Section 91 is that even athird party to document embodying jural act between others can

prove the said jural act only by producing the document. This viewfinds support in Roop Kumar (Supra), and Bai Hira Devi (supra). BaiHira Devi, also held:

“Like s. 91, s. 92 also can be said to be based on the bestevidence rule. The two sections, however, differ in somematerial particulars. Section 91 applies to all documents,whether they purport to dispose of rights or not, whereass. 92applies to documents which can be described asdispositive. Section 91 applies to documents which areboth bilateral and unilateral, unlike s. 92 the applicationof which is confined only to bilateral documents.Section 91 lays down the rule of universal applicationand is not confined to the executant or executants of thedocuments. Section 92, on the other hand, applies onlybetweenthepartiestotheinstrumentortheirrepresentatives in interest. There is no doubt thats. 92 does not apply to strangers who are not bound oraffected by the terms of the document. Persons other thanthose who are parties to the document are not precludedfrom giving extrinsic evidence to contradict, very, add toor subtract from the terms of the document. It is onlywhere question arises about the effect of the documentas between the parties or their representatives in interestthat the rule enunciated by s. 92 about the exclusion oforal agreement can be invoked. This position is madeabsolutelyclearbytheprovisionsofs. 99 itself.Section 99 provides that "persons who are not parties toa document or their representatives in interest, may giveevidence of any facts tending to show contemporaneousagreement varying the terms of the document." Though itis only variation which is specifically mentioned ins. 99, there can be no doubt that the third party's right tolead evidence which is recognized by s. 99 would includea right to lead evidence not only to vary the terms of thedocument, but to contradict the said terms or to add to orsubtract from them.”

73.Since hospital records are neither conclusive of rights nor areinstruments as between parties, this Court is of the opinion that theargument that PW 19’s oral evidence contradicts hospital records, thusviolating Section 92 is untenable.

74.Thus, this Court is of the opinion that the question of whetherthe plaintiff dived or jumped cannot be gone into in this appeal, sinceit was not pleaded in the written statement. The question of whetherthe oral evidence contradicts hospital records, regarding Susan havingallegedly “dived”, and thus violating Section 92 of the Evidence Actconsequently need not be answered. In any event, it is found thathospital records, not being documents that are dispositive of anyrights, do not fall within Section 92 of the Evidence Act.

Point No. 3(iv): Was the floor of the swimming pool and did it havealgae and other slippery material on it due to lack of maintenance

75.By the maxim res ipsa loquitur, the burden rests on ITDC toshow that it has exercised due care and caution and was thus notnegligent.

76.Towards this, ITDC had brought DW-2, Mr. Balram Verma asthe witness to depose on the cleaning measures undertaken in theswimming pool. Mr. Balram Verma deposed in his chief examinationregarding the procedure for cleaning the pool with bleaching powderand alum, in order to settle the dust particles on the floor of the pool.On the following day, the brush attached to the section sewer cleansthe dust and the dirty water is pumped out of the pool. He also statedthe cleaning procedure he was required to follow to check whether the

pool was adequately chlorinated, and that if at any point he found thepool floor to be unclean, he would ask the engineer to get that part ofthe floor cleaned. During the cross examination he deposed:

“if there is dirt or algae on the floor of the pool, it is

visible to the person standing on the pool”.

77.In his cross examination, nevertheless, the witness was unabletostatewhatalgaelookedlikeby colourandunderwhatcircumstances algae gets deposited on the floor of the pool. Thus, evenassuming that he executed the engineer’s instructions regardingcleaning procedure, this Court cannot infer that the algae depositsfrom the floor of the pool were cleaned as consequence.

78.It is pertinent to note that Mr. K R Dobson, the plaintiff’s expertwitness who was examined on pool maintenance, categorically statedthat algal growth can have occurred in pool even though the water inthe pool may be clear. This happens when the algae are still growingeither if the chlorine levels drop or during warm weather. Mr. Dobsonalso states that chlorine is consumed faster when the temperature rises;in temperatures above 25 degrees Celsius, he states that chlorine levelsought to be checked two times daily; finally, he states that even withlow levels of algal growth, the floor of the pool can be slippery.

79.Admittedly, Susan found the water in the pool clear andsparkling. The ITDC also argued that Susan admitted that the waterwas clear and sparkling and that, per the opinion of Mr. KR Dobson,pool consultant, if the water is both sparkling and clear and has nodeposits, the presumption is that the pool is properly maintained.However, this Court cannot infer that ITDC discharged the duty of

care towards maintenance of the pool from the mere fact of sparklingwater, since algal growth can take place even when the water is clear.80.The existence of liability for negligence depends on whether aduty of care was owed to the plaintiff by the defendant. duty of careexists when it is reasonably foreseeable to the defendant that theplaintiff would suffer injury or damage by the act or omission of thedefendant. This rule emerges from Lord Atkin’s ruling in Donoghue vStevenson [1932] AC 562:

"You must take reasonable care to avoid acts oromissions which you can reasonably foresee would belikely to injure your neighbour. Who then in law is myneighbour? The answer seems to be persons who are soclosely and directly affected by my act that I oughtreasonably to have them in contemplation as being soaffected when I am directing my mind to the acts oromissions which are called in question."

Thus, the duty of care depends on first, proximity of plaintiff todefendant and second, reasonable foresight of harm to the plaintiff.In Caparo Industries plc v. Dickman, [1990] 2 AC 605- judgmentwhich reviewed and restated the law after an extensive survey ofthe authorities, it was held that:

“What emerges is that, in addition to the foreseeability ofdamage, necessary ingredients in any situation givingrise to duty of care are that there should exist betweenthe party owing the duty and the party to whom it is oweda relationship characterised by the law as one of‘proximity’ or ‘neighbourhood’ and that the situationshould be one in which the court considers it fair, justand reasonable that the law should impose duty of agiven scope on the one party for the benefit of the other.”

In Rajkot v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, theseprinciples were reiterated. This Court observes that both theseconditions are fulfilled in the instant case. Guests at the swimmingpool are closely and directly affected by acts or omissions of thoseresponsible for the maintenance of pool; proximity of therespondent to appellant thus existed in this case. It is reasonablyforeseeable that algal growth on the floor of the pool is likely tomake the floor slippery, thus likely to injure guests at the pool.

81.The standard of the duty of care required to be met by ITDCwas defined in Rajkot (supra, para 53), drawing from Bolton v.Stone, (1951) AC 850 which in turn draws from Bourhill v. Young,[1943] AC 92. The duty of care must be such reasonable care so as toavoid the risk of injury to such person who, the defendant canreasonably foresee, may be injured by failure to apply such care. Itwould be appropriate to quote from Lord Macmillan opinion inBourhill (supra):

“The duty to take care is the duty to avoid doing oromitting to do anything the doing or omitting to do whichmay have as its reasonable and probable consequenceinjury to others, and the duty is owed to those to whominjury may reasonably and probably be anticipated if the”duty is not observed.

In Mitchell v Glasgow City Council, 2009 UKHL 11, the Courtexplained the nature of obligation cast upon owners and occupiers, inrelation to risk assessments that they can reasonably expect:

“The requisite additional feature that transforms whatwould otherwise be mere omission, breach at most ofa moral obligation, into breach of legal duty to takereasonable steps to safeguard, or to try to safeguard, theperson in question from harm or injury may take varietyof forms. Sometimes the additional feature may be foundin the manner in which the victim came to be at risk ofharm or injury. If defendant has played some causativepart in the train of events that led to the risk of injury, aduty to take reasonable steps to avert or lessen the riskmay arise. Sometimes the additional feature may be foundin the relationship between the victim and the defendant:(e.gemployee/employerorchild/parent)orintherelationship between the defendant and the place wherethe risk arises (e.g fire on the defendant’s land as inGoldman v Hargrave). Sometimes the additional featuremay be found in the assumption of responsibility by thedefendant for the person at risk of injury (see Smith vLittlewoods).Ineachcasewhereparticularcircumstances are relied on as constituting the requisiteadditional feature….the question for the court will bewhether the circumstances were indeed sufficient for thatpurpose or whether the case remains one of mereomission”.

82.The standard of care clearly then is reasonable care to do orrefrain from doing anything, to prevent injury that is reasonable andprobable consequence of omitting to do, or doing said act. What then isthe standard of care expected of swimming pool owner or serviceprovider? For the owners of swimming pool, the standard of carerequired to be met is reasonable care towards maintenance to preventinjury that would probably result from guests jumping into the pool inthe shallow end. Some of the duties resulting would include ensuringthat the pool is well maintained and does not pose dangers to the

unwary user; that lifeguards are provided or available; that doctor isat hand in the premises; that both the surface area surrounding the pooland the pool floor are well maintained so as not to pose hazard; thatthe use of building and other materials should be in accordance withnormal practice applicable in such cases, as would not facilitate anyaccident or aggravate or increase its chances.

83.A number of reported cases in UK courts have examined, in thecontext of swimming pool injury claims, the duties of occupiers, hotelowners and travel agencies. These cases suggest that the defendantowes no duty of care, only when the risk is obvious and inherent in theactivity undertaken by the plaintiff. In Daniel John McCarrick v ParkResorts Ltd [2012] EWHC B27 (QB) it was held as follows:

“61. The first defendant in this case chose to imposeconditions. Knowing that the pool was too shallow todive into and that it was dangerous to do so and that theresults of doing so could be catastrophic and that it wassimple and cheap to protect against that risk, it chose todecide to impose conditions, (namely to prohibit diving),to warn users, (it chose to deploy signage) and tosupervise them (it chose to use lifeguards). On thefactual findings that I have made, the risk was not anobvious one to the claimant in this pool in thesecircumstances: fact specific finding.

62.In my judgment, the first defendant having theknowledge that it had and having made the decisionsthat it made based upon that knowledge, it is thenillogical to say that on those findings there was no dutyto prevent or at least protect against the risk of diving.Otherwise, what is the point of the knowledge and thedecisions? It cannot be said in my judgment that therewas no duty. Therefore, it is question of what was the

scope of that duty. It is only if and to the extent that thedefendants establish that there was danger inherent intheactivitythateithertheclaimanthadactualknowledge of or was so obvious that he ought to havehad or, alternatively, there was risk that he consentedto run,making what Richards LJ described in Evans as"a genuine and informed choice" or Coulson J describedin Geary as voluntary assumption of an obvious andinherent risk, that defendant may be able to exculpatehimselfandthenonlysubjecttotheclaimantestablishing, if he or she can, that there was nonethelessan assumption of responsibility by the defendant.Thus Iconclude that there was duty and its scope was toprevent or at least protect against the risk of diving.There was not voluntary assumption of an obvious orinherent risk based on, as there would have to havebeen, genuine and informed choice and there was, inthe alternative, an assumption of responsibility.”

[emphasis supplied]

84.In an earlier judgment, i.e Tomlinson (FC) v. CongletonBorough Council and Others[2003] UKHL 47the claimant had divedinto lake, which he knew well. His head collided with the sandybottom of the lake and suffered serious injuries. Although he waspermitted to be in the lake, swimming (and therefore diving) in thelake was prohibited and his claim was ultimately before the courtunder the Occupiers Liability Act 1984. The court placed particularweight on the importance of the exercise of free will where the riskwas inherent in the activity undertaken:

"44. The second consideration, namely the question ofwhether people should accept responsibility for the risksthey choose to run, is the point made by Lord Phillips of

Worth Matravers MR in Donoghue v Folkestone PropertiesLtd[2003] 2 WLR 1138– 1153 and which I said wascentral to this appeal. Mr Tomlinson was freely andvoluntarilyundertakinganactivitywhichinherentlyinvolved some risk. By contrast, Miss Bessie Stone, to whomthe House of Lords held that no duty was owed, wasinnocently standing on the pavement outside her gardengate at 10 Beckenham Road, Cheetham when she was struckby ball hit for 6 out of the Cheetham Cricket Club ground.She was certainly not engaging in any activity whichinvolved an inherent risk of such injury. So compared withBolton v Stone, this is an foriori case.

45. I think it will be extremely rare for an occupier of landto be made under duty to prevent people from taking riskswhich are inherent in the activities they freely choose toundertake upon the land. If people want to climb mountains,go hang gliding or swim or dive in ponds or lakes, that istheir affair. Of course the landowner may for his ownreasons wish to prohibit such activities. He may think thatthey are danger or inconvenience to himself or others. Orhe may take paternalist view and prefer people not toundertake risky activities on his land. He is entitled toimpose such conditions, as the Council did by prohibitingswimming. But the law does not require him to do so."

[emphasis supplied]

85. In the recent cases, UK Courts have, while considering specificincidents, accepted that any risk assessment is necessarily subjectivein the first instance (the choice made by one to dive into the shallowlakeorswimmingpool,forexample).Anobjectivejudicialassessment is called for when claimant seeks redress in tort. Thecreator of the causal risk (i.e. the occupier) would, generally be liablefor the harm. However, creation of the risk must, Courts indicate, bedistinguished from assumption of the risk that is inherent in the act

undertaken (as would be the case with the defence of consent orvolenti non fit injuria). The operation of this defence requires that theclaimant/ victim of the accident has full knowledge of the relevantrisks and consequences and has made an informed decision to acceptboth. If this is the case, the creator owes no duty to the injuredclaimant and no damages can be recovered. (See Ratcliffe vMcConnell [1999] 1 WLR 670, Tomlinson v Congleton BoroughCouncil [2004] 1 AC 46, [2003] UKHL 47; Rhind v Astbury WaterPark Ltd [2004] EWCA Civ 756; Evans v Kosmar Villa Holidays plc[2007] EWCA Civ 1003). In other words, therefore, potentialclaimants seeking redress for injuries suffered as guests or users offacilities will need to show that it was risk created by the occupierwhich remained the primary cause of their injury, not risky activityundertaken by themselves and outside the boundaries of the activitiespermitted, encouraged or facilitated by the occupier. In relation to thelatter case, the loss will lie with the claimant, who cannot sue fordamages.86.With this standard of care, ITDC as owner of the pool cannotargue that the mere fact that the water was sparkling and clearindicated that the pool was properly maintained. This is because algalgrowth is known to occur even when the water is clear, particularly inwarm temperatures as is the case during May in Delhi, when thisincident took place. There was no evidence to show what themaintenance regime was, except the testimony of DW-2 that chlorinewas used routinely and that he used to report silt or any foreign

substance sometimes, for cleaning. Nothing was brought on record,either in documentary evidence or orally to substantiate that the tilesused by ITDC in its pools were not slippery; no tile was sent for expertexamination, nor was any expert produced in its support. Likewise,whether the floor tiles used were in conformity with standards, andwhat were the prevailing standards, was not produced or made known.Thus, this Court agrees with the findings of the Learned Single Judgethat ITDC had not fulfilled its duty of care towards maintenance of thepool.

87.ITDC had contended that Susan did not adduce any evidence toshow that there was algal growth on the floor of the pool. As discussedearlier, this submission postulates the burden of proof upon theplaintiff to establish negligence. It also sought to prove and contendthat the plaintiff had done something inherently risky, i.e. dive into theshallow side of the pool; as discussed earlier, that effort isunsuccessful. This Court is not persuaded by the argument that theplaintiff had to establish negligence, in the circumstances of the case.By the maxim res ipsa loquitur, the plaintiff need not show causationbetween the injury and the defendant’s act. The plaintiff need onlyshow the fact of injury; the mere fact of the injury justifies theinference that the knowledge of causation lies with the defendant.Thus the onus was on the defendant to refute causal link to its acts, byshowing either that the injury was not due to its negligence or that ithad exercised reasonable care. ITDC however failed to prove that ittook due care and precaution to avoid the accident, which was

foreseeable. It was therefore, at fault. The findings of the learnedsingle judge are therefore justified on the pleadings and evidence.

Point No 4: Whether, if any, compensation is to be paid? If so,under what heads is compensation payable?

88.On the question of compensation, ITDC submitted first, that thisincident falls within the definition of an “accident” i.e. an unintendedand unexpected event, especially when the cause is not known. Forthis, reliance is placed on Shakuntala Chandrakant Shreshti v.Prabhakar Maruti Garvali (2007) 11 SCC 668 and Hira Devi v.Bhaba Kanti Das, 1977 ACJ 293. Second, the ITDC submits, drawingfrom Syed Basheer Ahmed v Mohammed Jameel, (2009) 2 SCC 225,that the claimants to compensation must show data to establish areasonable nexus between the loss incurred by them and thecompensation prayed for. The onus lies on the claimant to proveearnings lost by leading reliable and cogent evidence and mereassertions in the plaint are insufficient to discharge this onus. Thecompensation should be fair and reasonable by accepted legalstandards. The appellant also draws support from Gobald MotorService Ltd. v. RMK Veluswami, AIR 1962 SC 1 to argue that theCourt must balance the pecuniary loss to the aggrieved party againstthe pecuniary advantage that accrues to them consequent to the injury.

89.Once the existence of liability for the tort of negligence isestablished, the extent of liability i.e. whether particular damage isrecoverable is to be decided. Damages to be recoverable, should notbe remote. The test to determine remoteness of damage, especially

when the question is one of unintended consequences of wrongfulact, was established in Overseas Tankship Ltd. v. Morts Dock andEngineering Co. Ltd., “The Wagon Mound” case, [1961] A.C. 388. Itwas held that damage is not too remote if it was reasonablyforeseeable consequence of the negligent act. The Wagon Mound inholding thus, overruled the test laid down in in Re Polemis. [1964] 2QB 292 for determining remoteness of damage i.e. whether thedamage was direct or natural consequence of the negligent act, so asto avoid the “never-ending and insoluble problems of causation”. Indoing so, Wagon Mound also effectively renders the tests for existenceof liability and extent of liability the same. (See McGregor onDamages, 4-002 – 4-007).

90.In Hughes v. Lord Advocate, [1963] A.C. 837, 858 thedistinction between degree of damage and kind of damage wasenunciated. It was observed that if type or kind of damage is areasonably foreseeable consequence of negligent act, then thedefendant is liable for that type of damage to whatever degree itoccurs. Thus, the defendant is liable to make good any damage even ifthe degree of damage is more than is anticipated or foreseen by thedefendant, so long as the kind of damage is foreseeable. Theseprinciples have been assimilated by Indian Courts (Ref RajkotMunicipality, [supra] and Jai Bhagwan v Laxman Singh 1994 (5) SCC5).

91.This Court is not persuaded by ITDC’s argument that thisincident falls within the category of “accidents” by virtue of being anunintended and unexpected event whose cause was unknown. The fact

that the cause was unknown is irrelevant since extent of liability doesnot depend on causation after Wagon Mound.The requirement toestablish extent of liability is the reasonable foreseeability of type ofdamage, regardless of degree of damage. This Court is of the opinionthat the type of damage i.e. feet slipping forwards and fallingbackwards to hit one’s head against the wall of the pool, when onejumps into pool, is reasonably foreseeable consequence of the floorof the pool being slippery, either on account of algal growth or due touse of slippery tiles- conclusion that could have been countered ordispelled by material that was, and should have been within theexclusive control of ITDC. This being the case, ITDC cannot contestthe foreseeability of the damage on the ground that the respondentsuffered fracture of the C6 and C7, and consequent paralysis byquadriplegia. This is because ITDC is responsible for damage even ata degree that was not anticipated by it, so long as the type of damagewas reasonably foreseeable.

92.As regards computation of damages, this Court is in agreementwith the ITDC’s submission that the claim for medical expensesincurred must be based on evidence adduced before the Court. Theburden to establish the quantum of damages lies on the claimant. Thisflows from Section 101 of the Indian Evidence Act and Syed BasheerAhmed v Mohammed Jameel, (2009) 2 SCC 225.

93.Pecuniary damages awarded for medical expenses must thus berestricted to only those amounts which can be proved by theplaintiff/respondent in evidence. From the bills and receipts providedby Susan, the Learned Single Judge of the Delhi High Court found

that the medical expenses incurred were of the amount $5513.80 inAustralian Dollars and ₹ 74249.05 in Indian Rupees. Susan’s father,PW2, Mr. GL Beer however, had in his testimony stated that he has infact incurred about AUD 1,50,000 as medical expenses for her careafter the onset of quadriplegia. Since the plaintiff was unable toadduce bills to show for these expenses, this Court is of the opinionthat only those expenses for which bills have been produced may beused in computation of damages under the head of “medicalexpenses”.

94.However, the Court is of the opinion that the Learned SingleJudge erred in converting the pecuniary damages (both under medicalexpenses and lost earnings) using the exchange rate as prevalent in1982 i.e. 1 AUD = 9 INR.

95.The allied questions of a) the appropriate currency to awarddamages in when the claimant incurred expenses or suffered losses ina foreign currency and b) the appropriate date for conversion of adecretal sum from foreign currency to the Indian Rupee wasanswered in Forasol v. ONGC, 1984 Supp (1) SCC 263. The Court,drawing from several English cases on breach of contract and fromOwners of M.V. Eleftherotria v. Owners of M.V. Despina, L.R.[1979]A.C. 685 on tortious liability (which was also relied upon by theCounsel for respondents) noted that the reasoning in common law wasthat:

“…it was fairer to give judgment in the currency in whichthe loss was sustained than in its sterling equivalent at thedate of the breach or loss, the principles to be applied inascertaining the currency of the loss being those of

restitutio in integrum and reasonable foreseeability of theplaintiff using particular foreign currency to purchasethe necessary currency to meet the immediate and directexpenditure caused by the defendant's tort or breach ofcontract.”

The Court held that this principle cannot be applied directly in India,since no Court can order party to do anything contrary to the law onforeign exchange, and that there was likelihood that the defendantmay not receive requisite permissions from the foreign exchangeauthorities to make payment in foreign currency. To account for thiscontingency, the Court held that the decree must provide in thealternative, for payment of sum of money in Indian Rupeesequivalent to the decretal amount in the foreign currency.

96.At this juncture, the Court was also required to answer thequestion of the appropriate date for fixing the exchange rate forconverting the foreign currency amount into Indian rupees. The Court(paragraphs 22-53) considered five possible dates for fixing theexchange rate at which the foreign currency amount has to beconverted:

1. the date when the amount become due and payable i.e.the date the cause of action arose;the date the cause of action arose;

2. the date of the commencement of the action i.e. date ofinstitution of suit;institution of suit;

3. the date of the decree;

4. the date when the court orders execution to issue; and

5. the date when the decretal amount is paid or realized

97.The fourth date i.e. date on which execution is ordered wasruled out by the Court as considerable time would elapse between thedate on which execution is ordered by the court and the date of finalrealization of payment, as the process of execution entails attachmentof the judgment debtor’s property, possible third party claims to theattached property, and compliance with Order XXI, Rule 68 of theCivil Procedure Code etc. This period would be susceptible tofluctuations in exchange rate. Moreover, execution can only beordered for specific sum that constitutes the judgment debt. Thus, itwould be impossible for the court to order execution of decree for asum that is to be ascertained by the executing court.

98.The fifth date i.e. date of realization of payment albeitseemingly most fair and just was also ruled out by the Court becausesuit valuation for court fees cannot be undertaken with reference to afuture possible exchange rate. Similarly, an assessment of thepecuniary limit of jurisdiction of courts cannot be undertaken in amoney suit in which the amount claimed is in foreign currency.Moreover, execution of decree cannot be ordered for sum that is tobe ascertainable as due upon the decree by the executing court as ofthe date of payment.

99.The Court then considered the first, second and third dates i.e.date of cause of action, date of institution of suit and date of decree. Itnoted that the duration between these dates and the date of decree orfinal disposal/final realization of payment would be susceptible tofluctuations in the exchange rate. Should the exchange rate fluctuate tothe plaintiff’s prejudice, then the plaintiff will not be put in the same

position as he would have been prior to the defendant’s breach of dutyowed to him, in keeping with the principle restitutio in integrum. Thispossibility would be aggravated by the duration of litigation in Indiaowing to overcrowded dockets in courts and consequent protraction oflitigation. However, given that neither that the fourth and fifth datesi.e. date of execution nor the date of realization of payment can beused to fix the exchange rate, the Court held that the principle ofrestitutio in integrum would be best served by the latest of the datesbetween date of cause of action, date of institution of suit, and the dateof decree. Thus, the position of law as it stands today is that the dateof final disposal of the suit (which is to be considered the date ofdecree, per paragraph 43 of Forasol) i.e. the date of judgment anddecree would be the date on which the exchange rate must be fixed forconversion of the foreign currency decretal sum to Indian rupees.

100.This Court is mindful of the position in United India InsuranceCo. Ltd. v. Patricia Jean Mahajan and Ors., (2002) 6 SCC 281 atpara 38, in which the Court considered the position in ONGC (supra)and distinguished it on the grounds that although the deceased was anAmerican citizen settled in the United States, and thus had adducedproof of earnings in American Dollars, the prayer was for sum inIndian Rupees which figure the claimant had arrived at by employingthe exchange rate of 1 USD = 30 INR. The Motor Accident ClaimsTribunal had granted compensation using the exchange rate employedby the claimant. The Single Judge on appeal used the prevalentexchange rate of 1 USD = 47 INR, but the Division Bench set asidethis finding and restored the rate to 1 USD = 30 INR on the ground

that the compensation amount had already been withdrawn. Thus, theCourt found that it would not be permissible for the claimants to claimthat the then prevalent rate of ₹47 was applicable. Thus, the Court held that given the prayer, the Court was right in awarding compensationamount on the terms on which the prayer was claimed i.e. at ₹ 30.The Court further held:

“There is no occasion to convert the amount of decree inRupees into Dollars applying Rs. 30 as rate of conversionand then re-convert it in Rupees at the rate of Rs. 47. Theclaimants cannot ask for more than what was prayed forin the claim petition. We are therefore not inclined toaccede to the request made for calculation of the amountof award at the conversion rate of Rs. 47.”

101.This Court is in agreement that the respondents cannot claim anamount greater than prayed for in the plaint. However, in deference tothis requirement, the principle of restitutio in integrum cannot becompromised. In order to restore Susan to the position she was in priorto the injury, it is imperative to grant her damages to an amount that isequivalent to the amount spent on medical expenses/lost earnings inher currency. If an amount is granted in Indian Rupees that is notequivalent to the amount she spent in Australian Dollars in the presentday in the Australian economy, then the respondent will be denied herright to restitution in monetary terms. In order to reconcile these tworequirements, this Court is of the opinion that the exchange rateprevalent as of the date of disposal of this appeal should be the dateapplicable for conversion of the sums in Australian Dollars to Indian

Rupees. This amount must, at the same time, be circumscribed by theamount claimed in the claim petition.

88.Thus, the amount for medical expenses incurred:

= ₹ (AUD 5513.80 x 45.46) + ₹74,249.05

= 2,50,657.348+ ₹ 74,249.05

= ₹ 3,24,906.39 where,

medical expenses incurred in Australia in AUD = $5513.80,medical expenses incurred in India in INR = ₹74,249.05

exchange rate on 03.03.2011 (date of judgment and decree insuit): 1 AUD = 45.46 INR ( on the basis of information gatheredfromhttp://www.freecurrencyrates.com/exchange-rate-history/AUD-INR/2011on 27-05-2014 at 10:40 PM).

102.For loss of earnings, since the respondent was minor and thusstill completing her education when she was injured, this Court mustrely upon the depositions of the Plaintiff. The Learned Single Judgefound that Susan could only commence employment at age 26 years,while the ordinary age of employment was 21 years, and that shecould only work till the age of 45 years after her handicap, whileordinarily, one can work till the age of 65 years. After her handicap,she was able to earn $30,000 per annum, whereas ordinarily, therespondent could have earned on average, $45,000. Using thesefigures, the Learned Single Judge found that the loss of earningswould be:

= 45000 x (65-21) - 30,000 x (45-26)

= 19,80,000 – 5,70,000

= AUD $14,10,000

Thus, the amount in Indian Rupees is:

=14,10,000 x 45.46

= ₹ 6,40,98,600/-

Where exchange rate on 03.03.2011: 1 AUD = 45.46 INR

The Court's approach in this regard is supported by the reasoning andjudgment in Nizam Institute of Medical Sciences Vs. Prasanth S.Dhananka & Ors (2012) 12 SCC 274. There, the Court awardeddamages towards loss of earnings for 40 year old claimant, for 30years. The claimant had suffered from acute paraplegia.

103.However, since the Plaintiff cannot be granted damages inexcess of the amount claimed in the suit, this Court is of the opinionthat the full amount claimed in the plaint may be awarded as damagesin respect of the claimant’s loss of earnings resulting from the injury,i.e. ₹ 1,30,00,000/-.

104.On the question of non-pecuniary damages for pain andsuffering, as well as loss of amenities – discretion is to be exercised bythe Court, as there is no constant principle followed by Indian courts,which are guided by principles of justice, equity and fairness. Theexercise of such discretion is mainly fact dependent. (Ref K Suresh v.New India Assurance Co. 2012 (12) SCC 274 and Nizam Institute ofMedical Sciences (supra). On this ground, this Court upholds the non-pecuniary damages granted by the Learned Single Judge i.e. ₹ 50,00,000/-

105.As far as the submission of ITDC that the general method forcomputation of pecuniary loss is “by balancing on the one hand theloss to the claimants of the future pecuniary benefit and on the otherany pecuniary advantage which from whatever source comes to themby reason of the death” (as held Gobald Motor Service Ltd. v. R.M.K.

Veluswami, AIR 1962 SC 1, para 17), this Court is of the opinion thatthis principle operates in different context. As evident from Gobaldand all the English cases relied upon by that Court, this principle hasso far been applied in cases of fatal accidents by motor vehicles, inwhich the family/dependents of the deceased claim compensation forthe death of the deceased. The benefit accruing that must be balancedagainst the losses resulting from death is reference to the interests inthe estate of the deceased person that accrues to the dependents asheirs. (Ref Paragraphss 11-16 of Gobald). This principle clearlycenters on the link between the advantage ensuing to the claimant andthe injury or death i.e. only those benefits that result as specificconsequence of the death or the injury can be benefits deductible fromthe pecuniary damages awarded. Benefits that would have resultedregardless of the death or injury would not be deductible from thepecuniary damages. This link was enunciated in Patricia Jean (supra),in which the Supreme Court cited Hodgson v. Trapp, [1988] 3 All ER870, p. 873:

“......the basic rule is that it is the net consequential lossand expense which the Court must measure, if, inconsequence of the injuries sustained, the plaintiff hasenjoyed receipts to which he would not otherwise havebeen entitled, prima facie, those receipts are to be setagainst the aggregate of the plaintiff's losses andexpenses in arriving at the measure of his damages.”and expense which the Court must measure, if, inconsequence of the injuries sustained, the plaintiff hasenjoyed receipts to which he would not otherwise havebeen entitled, prima facie, those receipts are to be setagainst the aggregate of the plaintiff's losses andexpenses in arriving at the measure of his damages.”

The Court proceeded to hold that:

“24. … From the above passage it is clear that thedeductionsareadmissiblefromtheamountofcompensation in case the claimant receives the benefit asa consequence of injuries sustained, which otherwise hedeductionsareadmissiblefromtheamountofcompensation in case the claimant receives the benefit asa consequence of injuries sustained, which otherwise he

would not have been entitled to. It does not cover caseswhere the payment received is not dependent upon aninjury sustained on meeting with an accident.

34. …We are in full agreement with the observationsmade in the case of Helen Rebello (supra) that principleof balancing between losses and gains, by reason ofdeath, to arrive at amount of compensation is generalrule, but what is more important is that such receipts bythe claimants must have some co-relation with theaccidental death by reason of which alone the claimantshave received the amounts. … According to the decisionsreferred to in the earlier part of this Judgment, it is clearthat amount on account of social security as may havebeen received must have nexus or relation with theaccidental injury or death, so far to be deductible from-the amount of compensation. There must be some corelation between the amount received and the accidentaldeath or it may be in the same sphere, absence theamount received shall not be deducted from the amountof compensation. Thus the amount received on account ofinsurance policy of the deceased cannot be deducted fromthe amount of compensation though no doubt the receiptof the insurance amount is accelerated due to pre-maturedeath of the insured.”

[emphasis supplied]

106.This Court is thus of the opinion that insurance and pension andlike benefits that may accrue to the respondent, regardless of herinjury, are not deductible from the pecuniary damages awarded herein.As regards the medical aids and equipment provided by theQueensland Department of Health, it is clear from PW 18/1 and PW18/2 that the Department would seek reimbursement of the costs it

has incurred, should this claim for damages be successful. This matteris to be resolved between Susan and her home Government.

Point No.: 5 Did the finding as to the interest rate by the LearnedSingle Judge call for interference

107.On this aspect, the plaintiff in her cross-objections claimed thata rate of interest of 18% be awarded on the damages awarded from thedate of filing of the suit till the date of realization. It was argued thatITDC is engaged in delaying tactics and protracted the litigation forover 30 years, while she pursued the litigation diligently. It was alsoargued that ITDC will have to convert the granted damages from INRto AUD after the appeal is disposed of, whereas the exchange rateused in computation of the damages was the prevailing rate in 1982 (1AUD = 9 INR) and lastly, the damages and interest awarded wouldnot cover the loss suffered by Susan.

108.The learned single judge had granted simple interest at 6% perannum, on the decreed amount. The award of interest is discretionaryand usually would not call for interference. Yet, this court isconstrained to observe that the learned single judge seems to have notgiven much importance to the 29 years pendency of the case, and theintervening events which saw interest rates, which were more or lessstable during the decade 1980-1990, fluctuate at varying levels. TheCourt, in these circumstances, should perform some averaging attemptto arrive at what could be the most reasonable mean interest rate,which would sub-serve the ends of justice.The Reserve Bank ofIndia’swebsite

(http://www.rbi.org.in/scripts/PublicationsView.aspx?id=12765

visited on 27-05-2014 at 09:35) contains table (No.74) indicatingfixed deposit rates of various banks from the year 1971-72 onwards. Inthe present case, the suit was filed in 1982; it was decreed in 2011.The proceedings were pending on the file of the court for 29 years.The average interest rate for fixed deposits, notified by the RBI for theyears 1982-83 to 2010-11 (29 years) works out to 9.17% p.a. ThisCourt is thus of opinion that the rate of interest of 9.17% should beapplied in this case, in substitution of 6% p.a pendente lite interestawarded by the learned single judge.Conclusion and Directions

109.The appeal, as is evident from the above discussion, is bereft ofmerit. This Court is constrained to observe that the pendancy of thesuit was largely due to the stand of ITDC in carrying out long andprotracted exercise of recording the deposition of witnesses. Onewonders about the objective behind the groundless objections and thealmost surrealistic nature of questioning resorted on behalf of ITDC.The attempts to prove that plaintiff was liar despite clear andconvincing answers from her end, shows stubborn desire tosomehow wrest arguing points for the final hearing. The transcript oforal depositions - reading of which was at once revealing anddisconcerting, highlighted the futility of the process in this case. Theline of questioning also showed ITDC in poor light as callous andinsensitive. That it is public sector organization only aggravates thedisregard for the suffering undergone by the plaintiff.

110.In the light of the above discussion, it is held that the findings ofthe Learned Single Judge do not call for interference on the questionof liability of ITDC and its breach of duty of care. The findingsrecorded in the previous portions of the judgment with regard to theaward on medical expenses incurred mean that the decree has to bemodified; instead of₹ 5,00,000/- awarded by the impugned judgmentand decree, the correct sum, i.e ₹ 3, 24,906.39/- shall stand substituted.Likewise, the decree in respect of the head "loss of earnings" shall besubstituted - instead of₹ 1,27,00,000/- the sum on account of loss ofearnings for the rest of the plaintiff's life shall be substituted by₹1,30,00,000/- (Rupees one crore and thirty lakhs). The damagesawarded shall thus be:

Pecuniarydamagesonaccountof-₹ 3, 24,906.39/-medical expenses

-Pecuniary damages on account of loss₹ 1,30,00,000/-of earnings

-Non-pecuniary damages on account of₹ 50,00,000/-pain and suffering

Total₹ 1,83, 24,906.39

The total decretal sum shall thus be modified to₹ 1,83, 24,906.39(Rupees one crore eighty three lakhs twenty four thousand, ninehundred and six and paise thirty nine only). The interest rate, for thereasons discussed earlier, shall be 9.17% per annum from date of suit(22.01.1982) till the date of the decree (03.03.2011) and 10% future

simple interest. The appellant ITDC had deposited the amounts duringthe pendancy of the present appeal; the plaintiff, Susan shall beentitled to withdraw them. modified decree shall be drawn; ITDCshall make good the balance amount within four weeks. ITDC shallbear the costs of the present appeal, quantified at ₹ 75,000/- also to bepaid to the plaintiff within the said four weeks.

111.The appeal is dismissed and the cross objections are allowed, tothe extent indicated above.

S. RAVINDRA BHAT(JUDGE)SUDERSHAN KUMAR MISRA(JUDGE)MAY 30, 2014