Falling Of Signboard A Foreseeable Event Given Delhi's Geographical Location, Defence Of Act Of God Can't Be Sustained: High Court

The Delhi High Court has ordered release of compensation of over Rs 18 Lakh in favour of the kin of a man, who died as a result of the injuries suffered due to falling of a signboard on his head in 2011.

The division bench of Justice Rajiv Shakdher and Justice Tara Vitasta Ganju in the ruling considered the question regarding applicability of the defence of vis major or act of God and principle of res ipsa loquitur.

The court said the defence of act of God to ward off strict liability would not be available to the bank "since the hazard presented by a signboard coming off the facade of the building was a foreseeable event given the fact that Delhi experiences high-velocity winds, in May, each year".

Background

On May 22 in 2011, the victim was walking on foot towards a tailor's shop when Bank of Baroda's signboard fell down on his head. He had to undergo a brain surgery at AIIMS and was discharged after 38 days in June 2011. However, his agony continued and he had to be admitted to hospitals nearly 10 times after that. In 2013, he filed a petition for compensation. He died during the pendency of the proceedings on February 21  this year.

Bank of Baroda in response to his petition had taken a defence that since on the fateful day the national capital had witnessed high-velocity winds, the injuries caused to the victim and his subsequent death was an act of God, and therefore it cannot be held liable.

A criminal case was also registered against the bank manager in 2011. The officer was acquitted in December 2018.

Single Bench Order

On the petition seeking compensation, the single bench had issued directions for constituting a medical board to evaluate the bills tendered by the victim concerning his medical treatments and expenses that he would have had to incur during his life span. The court in 2019 rejected the bank's application seeking impleadment of the entity, which fixed the signboard, in the case. The application seeking to place before court details of the criminal case was also rejected. Both the applications were dismissed on the ground that "the Bank had taken an unreasonably long time in preferring the said applications."

Arguments in Appeal

The bank challenged the decision before the division bench and argued that 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.

It was also contended that the doctrine of res ipsa loquitur would have no application in this case as the accident occurred because of an act of God. The bank also argued that the victim was unable to prove that his medical condition had a direct relationship with the injury suffered by him

The counsel representing victim's Legal Representatives argued there is no bar against courts entering into the realm of disputed facts in a writ action. It was also contended that the defence of act of God can only be sustained where the occurrence is "unprecedented and unforeseeable". It was also argued that bank manager's acquittal can have no impact on the writ action.

Division Bench Ruling

The court, after perusing various precedents, said 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 under the control and management of the defendant, the presumption would be that the defendant was guilty of negligence. 

"The thing or object escaping should be of a kind, if it were to escape, would be potentially dangerous. In ascertaining whether the object or thing can morph into 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," it said.

The court further said that 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 façade of the building, would result in the defendant and/or his agents being held liable under the tort of negligence," it added.

The division bench said there is no doubt Bank of Baroda was guilty of the tort of negligence as there has been no averment that the bank had entered into a maintenance or supervision contract with the company which put up the sign board.

"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, said the court.

On the defence of act of God, the court said the test is that the natural event, such as rain, high-velocity winds, snow, landslides, were so unexpected that no human foresight or skill could reasonably have anticipated the event. 

Rejecting the bank's argument, the court said high-velocity winds in Delhi, each year, in May, are a regular feature and  it 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," it said.

Observing that the doctrine of res ipsa loquitur would apply in the case, the court said the record shows the victim discharged the initial burden placed on him as to how he had suffered a head injury. The bench added that it was 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, that the Bank was unable to demonstrate that after AGIPL had fixed the signboard, there was a protocol in place to ensure that it was securely fastened to the façade of the building," it added.

On bank manager's acquittal in the case, the court said the same could not by itself be the reason for holding that the finding of negligence returned by the learned Single Judge qua the Bank was flawed.

The court also said 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.

"Since we have upheld the view taken by the learned Single Judge that this was a foreseeable event given the geographical location of Delhi and the period during which the event occurred, this document will not help in shoring up the defence offered by the Bank that it was an act of God and, hence, it could not be held guilty of having committed a tort of negligence," the division bench said, while rejecting the argument based on a news report stating that Delhi had experienced high-velocity winds on the day of incident.

The court also noted that the bank had neither periodically inspected nor put in place a protocol for monitoring the maintenance of the signboard which was fixed on the façade of the building.

"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," it added.

The court said the bank had deposited Rs.18,09,244/- with the Registry of this Court as per an order dated 29.05.2019 passed during the pendency of the appeal. "Since the Bank's appeal i.e., LPA 382/2019 fails, the Registry is directed to release the amount deposited, along with accrued interest, to the LRs of the deceased writ petitioner," it added.

Title: M/S BANK OF BARODA & ANR vs MAHESH GUPTA & ORS.

Citation: 2022 LiveLaw (Del) 1163

Click Here To Read/Download Judgement