INJURIES OBTAINED BY FALL OF SIGNBOARD – TORTIOUS NEGLIGENCE

[Mr. M. GOVINDARAJAN]

The expression ‘advertisement’ is nothing but a mode of communication directed towards the public at large or a particular set of people to, inter alia, conveys the kind of business the advertiser is involved in and to promote its business and commercial interest.   In certain cases, the nomenclature or a name under which the business is conducted acts as an advertisement, whereas in other cases where the business is conducted under a random name which has nothing to do with the kind of business being operated by the advertiser, the advertiser may have to use different mediums to promote its business interests, which could include billboards, hoardings, electronic media, social media platforms or print media to reach its target customers/consumers.

A sign board is a board carrying a sign or notice, especially one used to advertise a product, event, etc.  All types of boards for advertising can be divided into five primary groups-digital, outdoor, informational, persuasive, and compliant signage.  It is the duty of the entity to keep the sign board intact and to ensure that the same does not harm to any person passing through the path.  It also requires complying with the provisions of relevant laws.  If any accident occurred due to this sign board the owner of the sign board will be held liable for its negligence.

In M/S BANK OF BARODA & ANR. VERSUS MAHESH GUPTA & ORS. (VICE-VERSA) - 2023 (2) TMI 653 - DELHI HIGH COURT  one Mr. Mahesh Gupta suffered a injury  as a result of the Bank of Baroda’s sign board falling on his head on 22.05.2011, while he was walking to his tailor’s shop.  He was admitted in the hospital and to undergo brain surgery.  The petitioner suffered even after discharge from the hospital.  Therefore he was again admitted in another hospital. 

FIR was filed against unknown persons.  In the criminal proceedings the bank Manager was relieved from the charges framed against him.

Mr. Mahesh filed a writ petition before the High Court in WP(c) 499/2014 seeking compensation for his injury from the bank.  The ‘Hindustan Times’ reported that Delhi had faced the brunt of high velocity of wind on 22.05.2011.  The Bank, before the High Court, took the report of newspaper as defence and contended that it was an act of God i.e., a vis major event and therefore the Bank could not be held liable for injuries caused to the writ petitioner due to the sign board of the bank fell on his head.  The petitioner contended that the bank has not got the approval for such a sign board under Section 143 of the Delhi Municipal Corporation Act, 1957 (‘DMC Act’ for short).  The writ petitioner died on 21.02.2022.

The Single Judge directed for the constitution of a Medical Committee to evaluate the bills tendered by the petitioner and hence the writ petition has not come to an end.  The High Court also observed that the Bank has not obtained the permission from Delhi Municipal Corporation for having such a sign board.  Against this both the parties filed appeal before Division Bench of the High Court– LPA 389/2019 by Bank of Baroda and LPA 569/2019 by the legal heirs of the deceased.

The bank submitted the following before the High Court-

• The issue concerning negligence and award of compensation involved disputed questions of fact requiring evidence and perhaps, expert opinion and hence, could not have been decided in a writ action.
• Since it did not advertise the business carried on by the Bank there was no obligation cast on the Bank to seek prior permission of the Municipal Corporation under Section 143 of the Delhi Municipal Corporation Act, 1957.
• A signboard which is relatively smaller in size displays the name or logo of a business or product and is ordinarily fixed on the facade of the building in which the place of business is located
• The signboard came down because of the high-velocity winds and hence, the Bank could not be held liable for negligence.
• The burden of proving negligence in the affirmative, rested, at the relevant time, on the writ petitioner, which has not been done by the writ petitioner for which the Bank shall not be made liable.
• The Bank had outsourced the job of fixing the signboard. For this purpose, it hired an agency, namely, AGIPL. The said agency had taken due care while putting up the signboard. Therefore, the Bank could not be held liable for negligence in the given circumstances.
• The deceased writ petitioner was unable to prove that his medical condition had a direct relationship with the injury suffered by him. 
• It is for this reason that the learned Single Judge had directed the constitution of a Medical Board to evaluate the bills submitted by the petitioner at the relevant time, for quantification of pecuniary damages claimed by him.
• The deceased writ petitioner received treatment from more than one hospital. Therefore, it cannot be ruled out that the deceased writ petitioner had a pre-existing ailment which added to his sufferance.

The legal heirs of the deceased contended the following before the High Court-

• The learned Single Judge had correctly applied the doctrine of strict liability i.e., res ipsa loquitur, as the material facts which led to the deceased writ petitioner being injured were not in dispute.
• The act of God, defence, can only be sustained where the occurrence is ‘unprecedented and unforeseeable’. No such material was placed on record by the Bank.
• The acquittal of the Bank Manager in the criminal case, which was granted by extending the benefit of the doubt to the accused, can have no impact on the writ action, which is a civil proceeding.
• The compensation granted by the learned Single Judge both for pecuniary and non-pecuniary damages is reasonable.
• In a tort action, award of interest, both for pendente lite and future period are the norm that is followed. It is in these circumstances that LPA 569/2019 has been preferred.

The High Court heard the submissions of the parties to the appeal.  The High Court arrayed the sequences of the event and the nature of injuries obtained by Mr. Mahesh due to the fall of the sign board of the Bank of Baroda, while he was walking to his tailor’s shop.  The High Court observed that the deceased writ petitioner suffered a severe head injury on account of the signboard falling on his head.  A perusal of the impugned judgment would show that the Learned Single Judge has not only taken recourse to the principle of res ipsa loquitur but also the principle of strict liability in concluding that the Bank was guilty of negligence.

The High Court relied on various judgments in this regard.  From the relied case laws the High Court enunciated the following principles-

• Once it is shown that an accident has occurred and the surrounding circumstances show that its occurrence was due to the thing or object or a being (say, for example, an animal) under the control and management of the defendant, the presumption would be that the defendant was guilty of negligence.
• In cases of persons using public pathways and passages, the law presumes that the owners of structures and buildings which abut such pathways, highways or roads have a duty of care to the passer-by to periodically inspect and maintain such structures
• The objects which form part of the structure or are fastened to such a structure or building, if not periodically inspected or maintained, cause an injury to a passer-by by coming off the façade of the building, would result in the defendant and/or his agents being held liable under the tort of negligence.

The High Court held that applying the aforesaid principles to this case, there is no doubt that the Bank was guilty of the tort of negligence.   There is no defence taken that the Bank itself carried out a periodical inspection of the signboard put up on the façade of the building.   The deceased writ petitioner was a passer-by who met with the accident while exercising his right of passage on a public pathway which abutted the building in which the Bank was housed.

The only defence that the Bank has taken centers is the doctrine/maxim of Act of God or vis major. Further the Bank argued that the object which caused the respondent to suffer injury was a signboard and not an advertisement and, therefore, it was not required to take written permission from the Commissioner in accordance with the provisions of the DMC Act and the bye-laws framed there under.  The High Court analyzed the provisions of   Section 143 of the Delhi Municipal Act. 

 If an entity has signboards installed bearing only its name in multiple locations of a city, one could argue that such a signboard is an advertisement as it increases visibility and enhances the recall factor. Add to it another dimension; each signboard carries the address of its branches. Such a ‘Signboard’ could convey a lot to the customers [both existing and prospective] of such an entity.  In the banking business, more often than not, the name itself conveys the nature of the entity’s business.  The High Court, therefore, held that entities which convey the nature of their business via their names or nomenclature could fall, in our opinion, within the provisions of Section 143 of the DMC Act, if facts and circumstances obtain in a case which suggests that there is an intent to draw potential customers and/or consumers to the place of business and/or to consume or receive services offered by the advertiser.

The High Court held that even if it is assumed, for the moment, that the Bank was not required to take permission under Section 143 of the DMC Act, it would not absolve the Bank of the charge of negligence leveled against it.  In an action for the tort of negligence, the claimant has to prove that there was a duty of care owed to him and that the breach of this duty had caused an injury which made the defendant liable for paying damages.’

The High Court then considered the argument of the bank that the signboard came off the façade of the building due to high-velocity winds and was, thus, an act of God.  This argument was not impressed the High Court.  The high-velocity winds in Delhi, each year, in May, are a regular feature.   The Bank ought to have foreseen that the signboard, which was fixed to the façade of the building, could cause harm to a passer-by if it came off due to a natural cause such as high-velocity winds.  The Bank, to obviate the occurrence of such eventuality, was obliged to monitor the maintenance of the signboard to ensure, inter alia, that it was securely fastened to the façade of the building. Having failed to do so, the Bank has rightly been held to have committed a tort of negligence.

The High Court then considered the submission of the bank that because the deceased writ petitioner received medical treatment from more than one hospital, one could not rule out that he was suffering from a pre-existing ailment.  The High Court observed that a perusal of the writ petitioner’s medical record clearly establishes a substantial linkage between the injuries suffered by him and the treatment accorded to him.

The bank attempted to shift its liability into AGIP.  The High Court held that AGIPL was instrumental in fabricating and installing the signboard would not absolve the Bank of its liability as AGIPL can only be treated as the agent of the Bank.   The signboard was fabricated and installed by AGIPL; possibly in and around April 2005.  The time gap between the date when the signboard was fabricated and installed and the date when the incident occurred would show that six years had elapsed, and, therefore, due to normal wear and tear the nuts and bolts used to fix the signboard may have been rusted and, perhaps, become loose.  There is nothing on record to show, as noticed above, that a contract for maintenance of the subject signboard was awarded to either AIGPL or any other entity.

The High Court did not find any error with the impugned judgment.  Since, the writ petition is still pending adjudication, the best course, perhaps, available at this juncture to the legal representatives would be to approach the learned Single Judge with an appropriate application. If such an application is filed, it will be decided in accordance with the law, after giving due opportunity to the Bank to resist the same. Consequently, LPA No.569/2019 is closed with the aforesaid observations.