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TMI Blog2023 (2) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... since the hazard presented by a signboard coming off the fa ade of the building was a foreseeable event given the fact that Delhi experiences high-velocity winds, in May, each year. There are no merit in the appeal preferred by the Bank - appeal dismissed. - LPA 382/2019, CM Nos. 26594/2019 & 33521/2020 - - - Dated:- 9-12-2022 - MR. RAJIV SHAKDHER AND MS. TARA VITASTA GANJU, JJ. For the Appellant : Mr Neeraj Kumar Jain, Sr Adv with Mr Krishan Kumar, MR Nitin Pal, Mr Atul Sheopuri, Mr Kartik S., Advs. for R-1. Mr Tushar Sannu, Standing Counsel with Ms Priyansha Sinha and Ms Pooja Gupta, Advs. for MCD. For the Respondent : Mr Santosh Krishanan with Ms Deepshikha Sansanwal, Advs., Advs. for R-1. Mr Amit Singh Chauhan, Standing Counsel for R-2/MCD. JUDGMENT These are two cross-appeals preferred against the judgment of the learned Single Judge dated 08.04.2019. Letters Patent Appeal (LPA) No. 382/2019 has been preferred by the Bank of Baroda [hereafter referred to as the Bank ] while LPA No. 569/2019 was instituted at the relevant time by one Mr. Mahesh Gupta, who after his death, which occurred on 21.02.2022, is now represented by his legal representatives (L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued even after he was discharged from AIIMS; between 22.05.2011 [i.e., the date when he was injured] and 02.06.2013, he, was admitted to the hospital nearly ten times for a cumulative period of hundred (100) days. 8. It is this which triggered the writ petitioner's resolve to institute, in and about 10.10.2013 a petition in this court. As noticed above, the writ petition was numbered WP(C) 499/2014. 9. The aforementioned broad facts are, largely, not in dispute and, as is evident, in particular, concerning the incident which caused injury to the writ petitioner. That said, there are certain facts which are tied in with the incident and hence, are required to be noticed for the adjudication of the instant appeals. (i) The first fact that is required to be noticed is that a day after when the incident took place i.e., on 23.05.2011, a major daily newspaper i.e., the Hindustan Times published a report that Delhi had faced the brunt of high-velocity winds on the date of the incident i.e., 22.05.2011. The Bank propped up this fact as a defence to the accusation of negligence levelled against it. The Bank's say, both before the Single Judge and before us, is that this wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Act, 1957 [in short, DMC Act ]. An advertisement constitutes a large-size notice or announcement, placed in the public domain concerning the product and/or service offered by the advertiser or an event held by an advertiser. Advertising is a form of marketing communication which employs an openly sponsored, non-personal message to promote or sell a product, service or idea. On the other hand, 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 which fell on the writ petitioner's head was not an advertisement and hence, as stated above, did not require prior permission of the Municipal Corporation under the DMC Act. (iii) Third, the doctrine of res ipsa loquitur would have no application in this case as the accident occurred because of an act of God. There was material on record in the form of a newspaper report which established that on the date when the incident occurred, the residents of Delhi were exposed to high-velocity winds. The signboard came down because of the high-velocity winds and hence, the Bank cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deceased writ petitioner. The records produced by the deceased writ petitioner span over three years post the injury suffered by him. The allegations made by the deceased writ petitioner concerning his health, which is attributed to the accident, remain unsubstantiated. (viii) Eighth, the prayers made in LPA 569/2019 for the grant of pendente lite and future interest cannot be granted at the appellate stage. Since the issue concerning interest was not agitated before the learned Single Judge, the question concerning its rejection did not arise. In any event, pendente lite interest on compensation cannot be awarded till it is finally adjudicated. Given the fact that compensation stands deposited with the Registry of this Court, in case the Bank were to fail in its appeal, the said amount would be released to the beneficiaries along with accrued interest. (ix) Ninth, the Bank has filed its application for being allowed to tender additional documents including Annexures A-3, A-5 and A-6. The Bank was unable to file its documents with the counter-affidavits before the learned Single Judge as they were not available at the relevant time. The learned Single Judge ought to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingle Judge on 18.03.2019, i.e. when the matter was reserved by the learned Single Judge for rendering a decision in WP(C) 499/2014. (vii) The compensation granted by the learned Single Judge both for pecuniary and non-pecuniary damages is reasonable. Furthermore, in a tort action, award of interest, both for pendente lite and future period is the norm that is followed. It is in these circumstances that LPA 569/2019 has been preferred. 13.1. In support of his submissions, Mr. Krishnan has relied upon the following judgments: (i) Namrata Singh and Ors. v. Director General Civil (DGCA) and Ors. AIR 2017 (NOC 692) 236 (ii) Harinder Kaur v. Add. District Sessions Judge Ors.; (2012) 131 DRJ 63 (iii) Subramanium and Anr. v. Delhi Metro Rail Corporation and Ors. 2014 ACJ 1908; (2013) 4 TAC 706 (iv) Darshan and Ors. (Smt.) v. Union of India Ors. 1999 (49) DRJ 655 (DB) (v) Divisional Controller, KSRTC v. Mahadeva Shetty Anr. (2003) 7 SCC 197. (vi) Vishnu Dutt Sharma v. Daya Sapra (2009) 13 SCC 729 (vii) Abati Bezbaruah v. Dy. Director General, Geological Survey of India and Anr. (2003) 3 SCC 148 (viii) Thazhathe Purayil Sarabi Ors. v. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od, no negligence could be attributed to it for the injuries suffered by the deceased writ petitioner. 18.1 To the accusation levelled against the Bank that it did not seek permission from the municipal corporation before putting up the signboard, it is asserted on behalf of the Bank that the signboard was not an advertisement and, hence, did not require the permission of the concerned officer [i.e., the Commissioner] as envisaged under Section 143 of the DMC Act. 19. To answer the defence of vis major, i.e., act of God, one would have to segregate causes, although natural [i.e., which occur without human intervention], that are foreseen and those that are extraordinary and cannot be reasonably anticipated. In support of this contention, the Bank has relied upon a newspaper report dated 23.05.2011 which is suggestive of the fact that on the date of the incident, i.e., 22.05.2011, Delhi had experienced high-velocity winds. 19.1. The learned Single Judge has repelled this defence on the ground that each year, in May, Delhi frequently experiences these high-velocity winds. In this regard, the learned Single Judge has taken notice of a judgment of a coordinate bench of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (1868) 3 H.L.330]. The following observations in the said case, being relevant, are extracted below: 28. I shall refer now to cases which illustrate the strict rule of liability enunciated in Rylands v. Fletcher (1868) 3 H.L. 330 : 37 L.J. Ex. 161 : 19 L.T. 220 and in some of which the maxim res ipsa loquitur also has generally been applied. Before I do so, however, I will call attention to what, I think, are the essential features of the cases in which the rule of strict liability of which Rylands v. Fletcher (1868) 3 H.L. 330 : 37 L.J. Ex. 161: 19 L.T. 220 is a type has been applied. They are expressed in the following words: By Lord Moulton in (1913) A.C. 263 Rickards v. Lothian (1918) 1913 A.C. 263: 82 L.J. P.c. 42: 108 L.T. 225 at p. 280: It must be some special use bringing with it increased danger to others ..... By Atkin L.J. in (1920) 2 K.B. 487 Belvedere Fish Guano Co. v. Bainham Chemical Works (1920) 2 K.B. 487: 89 L.J. K.B. 631: 123 L.T. 211 at p. 502: Where a person brings upon land of which he is in de facto possession for purposes of his business dangerous materials which would not naturally be upon the land, he is under an obligation to keep those m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eight of the debris, the colliery company were found liable under the rule in Rylands v. Fletcher (1868) 3 H.L. 330 : 37 L.J. Ex. 161 : 19 L.T. 220 for damage caused by the escape of the debris. (1936) 1 ALL E.R. 557 Shiffman v. Venerable Order of St. John Jerusalem (1936) 1 All E.R. 557 was a case in which the Order of St. John of Jerusalem had, on the occasion of a national holiday, erected a casualty tent in a public park where large crowds gathered. Outside the tent they had put up a flag pole which was insecurely kept in position by guy ropes. As the result of children, who could not be kept away, swinging from the ropes, the pole fell and injured the plaintiff. In holding that the defendants were liable to pay damages on the ground of negligence, Atkinson J. said: I do not think it is necessary to decide it, but there is another ground upon which I think liability may well rest. I cannot myself see why this is not within the rule in Rylands v. Fletcher (1868) 3 H.L. 330 : 37 L.J. Ex. 161 : 19 L.T. 220. The defendants erected something exceptional, something which would be easily caused to fall, and something which, if it fell, was likely to do mischief to others, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or vis major, and the defendant has in fact raised it by contending that the fall of the banner was caused by a storm of unusual severity. The evidence adduced in support of this contention will have to be examined for the purpose of seeing whether it proves that, such a storm took place as would amount to act of God or vis major as that concept has been understood in the Law of Torts. Therefore before approaching the evidence regarding the weather which prevailed at the time when the banner fell, it will be necessary first to consider the cases in which act of God or vis major has been discussed. 60. Professor Winfield, following Pollock, has defined act of God as an operation of natural forces so unexpected that no human foresight or skill could reasonably be expected to anticipate it. In Greenock Corporation v. Caledonian Railway (1917) 1917 A.C. 556 : 86 L.J. P.C. 185 : 117 L.T. 483 at p. 581, Lord Parker said: ( Rylands v. Fletcher (1868) 3 H.L. 330 : 37 L.J. Ex. 161 : 19 L.T. 220 saved the question whether the act of God might not have afforded a defence, and this question was answered in the affirmative in (1876) 10 Ex. 255 Nichols v. Marsland (1875) 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the clock tower and if found so was liable to pay damages for death caused on account of its fall. 21.3. Inter alia, the defence taken by the appellant-corporation was that the fall of the clock tower occurred due to an inevitable accident that could not have been prevented by the exercise of reasonable care and caution. It was also submitted on behalf of the appellant-corporation that there was nothing in the appearance of the clock tower which would have put it to notice that it represented a probable danger to those who were co-located. The Supreme Court rejected this defence and while doing so, made the following crucial observations: 4. .We are unable to accept the argument of the appellant as correct . It is true that the normal rule is that it is for the plaintiff to prove negligence and not for the defendant to disprove it. But there is an exception to this rule which applies where the circumstances surrounding the thing which causes the damage are at the material time exclusively under the control or management of the defendant or at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g premises for the safety of the structures which he keeps besides the highway. If these structures fall into disrepair so as to be of potential danger to the passers-by or to be a nuisance, the owner is liable to anyone using the highway who is injured by reason of the disrepair. In such a case it is no defence for the owner to prove that he neither knew nor ought to have known of the danger. In other words, the owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect. In Wringe v. Cohen [(1940) 1 KB 229] the plaintiff was the owner of a lock-up shop in Proctor Place, Sheffield, and the defendant Cohen was the owner of the adjoining house. The defendant had let his premises to a tenant who had occupied them for about two years. It appears that the gable end of the defendant's house collapsed owing to a storm, and fell through the roof of the plaintiff's shop. There was evidence that the wall at the gable end of the defendant's house had, owing to want of repair, become a nuisance i.e. a danger to passers-by and adjoining owners. It was held by the Court of appeals that the defendant was liable for negligence and that if o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... road remained safe for those who plied on them. The following observations of the court bear out this aspect of the matter: 8. The Division Bench has upheld the finding recorded by the learned trial Judge that the Horticulture Department of the Corporation should have carried out periodical inspections of the trees and should have taken safety precautions to see that the road was safe for its users and such adjoining trees as were dried and dead and/or had projecting branches which could prove to be dangerous to the passers-by were removed This having not been done, the Municipal Corporation has been negligent in discharging such duty as is owed to the road-users by the adjoining property-owners, especially the Municipal Corporation . The finding has been arrived at on appreciation of evidence by the learned trial Judge as also by the Division Bench and we find ourselves in entire agreement with the said finding. 9. The law is stated in Winfield and Jolowicz on Torts (13th Edn., 1989, p. 415) in these words: If damage is done owing to the collapse of the projection on the highway or by some other mischief traceable to it, the occupier of the premises on which it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a potentially dangerous article, inter alia, its size, shape, material, position and, like in the instant case, the height from which the object/thing falls. 2. 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. Therefore, 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 fa ade of the building, would result in the defendant and/or his agents being held liable under the tort of negligence. 23. Applying the aforesaid principles to this case, there is no doubt in our mind that the Bank was guilty of the tort of negligence. The fact that the signboard fell on the deceased writ petitioner's head causing severe injuries is not in dispute; there is no averment either in the counter-affidavit or the Bank's appeal that the Bank had entered into a maintenance or supervision contract with AGIPL which was responsible for putting up the signboard. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment: 25. This brings us to the other argument advanced on behalf of the Bank 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 thereunder. In other words, the argument advanced is that Section 143 of the DMC Act has no applicability in the instant case. 25.1. The Bank's argument, in our opinion, qua this aspect is too broad, that is, anything which is a signboard cannot fall in the category of an advertisement within the meaning of Section 143 of the DMC Act. 25.2. To our minds, this submission is not tenable for the following reason: Section 143 of the DMC Act adverts to the expression advertisement which is nothing but a mode of communication directed towards the public at large or a particular set of people [in this case, customers] to, inter alia, convey 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 advert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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. Thus, if signboards bear the name of the entity, which is descriptive of the entity's business are put up in various parts of the city, they could, in a given case, be treated as an advertisement. Likewise, the size of the signboard and what is stated therein, apart from the name of the entity, could also in certain circumstances lead to the conclusion that the entity is seeking to promote its business interests. Say, for instance, a bank's signboard carries its name along with the acronym ATM and such signboards are put up in different locations, could it then be said that they are simpliciter signboards and not advertisements? 25.7. Thus, it cannot be said that every signboard is excluded from the purview of Section 143 of the DMC Act. 26. In this case, what seems to have impressed the learned Single Judge while ruling that the signboard fell within the provision of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he earlier part of the judgment, 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 fa ade 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 fa ade of the building. Having failed to do so, the Bank has rightly been held to have committed a tort of negligence. 29. Thus, as adverted to hereinabove, the doctrine/maxim of res ipsa loquitur and/or strict liability would apply in this case. The explanation given by the Bank, contrary to the undisputed facts that have emerged in the instant case, leads us to conclude that the Bank was guilty of negligence. The record shows that the deceased writ petitioner discharged the initial burden placed on him as to how he had suffered a head injury. It was thereafter, incumbent upon the Bank to demonstrate as to why it should not be held guilty of having committed a tort of negligence. We may note, in this context, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Single Judge. The learned Single Judge, thus, proceeded to dismiss the application filed for taking on record additional documents. This order was passed on 18.03.2019, which is also the date when the judgment in the writ petition was reserved. We find nothing wrong in the approach adopted by the learned Single Judge. It is not the case of the Bank that the documents (other than the acquittal order dated 07.12.2018) which were sought to be placed on record were not in its power and possession before it proceeded to file a counter-affidavit before the learned Single Judge. 31.1. Before us as well, an application has been filed to being on record additional documents, which are adverted to as Annexures A3, A5 and A6. Pertinently, these documents have not been filed with the application; one can only presume that these are the very same documents which are appended to the appeal. Except for the document, which is referred to as Annexure A5, there is no averment in the body of the application concerning the other two documents, as to what these documents are all about. 31.2. To avoid repetition and prolixity, we will deal with the relevance and impact, if any, of the documents, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. A perusal of the bill shows that the signboard was fabricated and installed by AGIPL; possibly in and around April 2005. 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. In fact, there is not even an averment to that effect in the counter-affidavit or the appeal filed by the Bank before us. 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. 31.8. Likewise, the reliance on the news report of 23.05.2011 [which is marked as Annexure A3 and is appended to the appeal] only establishes that Delhi had experienced high-velocity winds on 22.05.2011, i.e., the date of the incident. Since we have upheld the view taken by the learned Single Judge that this was a foreseeable even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were lodged against respondent no. 5. He was arrested on 25.10.1993 and released on 29.12.1993; i.e., the very day on which the complainant committed suicide. 33.2. The Supreme Court noted that in the impugned judgment, the High Court had observed that mere filing of FIRs against respondent no. 5 did not necessarily lead to the conclusion that he had been falsely implicated in criminal cases; however, since the allegations were serious and if they were found true, it was a fit case for awarding compensation to respondent no. 5. It is in this backdrop that the High Court had directed the concerned District Judge to conduct an inquiry, based on which a decision had to be taken as to whether or not compensation should be awarded to respondent no. 5. 33.3. The Supreme Court, as noted above, quashed this direction since there was nothing available to the High Court for triggering a suo motu action, as neither the news report nor the judgment discharging respondent no. 5 and his associate or any other material available on record, that would suggest SPS Rathore's involvement in the lodgement of false cases against respondent no. 5. 33.4. It is in this background that the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate forum for adjudicating the lis in the instant case. 34.2. In our opinion, the judgment, in a certain sense, supports the case of the deceased writ petitioner, inasmuch as where primary facts are not in dispute, finding qua negligence can be arrived at based on affidavits. It is exactly this that the District Forum had done and found the concerned hospital guilty of negligence. The error, according to the Supreme Court, had been committed by the State Commission and NCDRC in insisting on the production of expert opinion when primary facts concerning the ailment and the wrong line of medical treatment were not in dispute. 34.3. In the instant case, as noted above, the primary facts are not in dispute, and, therefore, the learned Single Judge has correctly concluded that the Bank had committed a tort of negligence. 35. The last judgment cited on behalf of the Bank was rendered in Syed Akbar's case. Broadly, the facts, in this case, were the following: 35.1. The appellant, who was a bus driver, had been convicted by the Trial Court for an offence said to have been committed by him under Section 304A of the IPC. The allegation against the appellant was that he had r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h tends to give the maxim a larger effect than that of a merely permissive inference, by laying down that the application of the maxim shifts or casts, even in the first instance, the burden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot, as such, be invoked in the trial of criminal cases where the accused stands charged for causing injury or death by negligent or rash act. The primary reasons for non-application of this abstract doctrine of res ipsa loquitur to criminal trials are: Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident tells its own story of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence, viz., the proof, in civil and criminal proceedings. In civil proceedings, a mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occurrence of the accident, in law, was attributable, in this case to the defendant. 36. Furthermore, the coming off of the signboard, given its size and location, had the potentiality of causing harm and injury to a passer-by who crossed the public pathway which abutted the building. As noted above, in that sense, the Bank owed a duty of care to every passer-by, which was breached as it failed to aver that it had periodically carried out inspections and monitored the maintenance of the signboard. 37. Besides this the defence of act of God/vis major available to ward off the strict liability cast under the common law principle enunciated in Rylands v Fletcher was also not available since the hazard presented by a signboard coming off the fa ade of the building was a foreseeable event given the fact that Delhi experiences high-velocity winds, in May, each year. Conclusion: 38. Therefore, for the foregoing reasons, we find no merit in the appeal preferred by the Bank. Accordingly, LPA No. 382/2019 is dismissed. 39. Insofar as the cross-appeal is concerned, i.e., LPA No. 569/2019, the grievance articulated therein concerns the failure on the part of the learned Single ..... X X X X Extracts X X X X X X X X Extracts X X X X
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