Delhi District Court
A. Subbiah (Deceased) vs Union Of India on 4 September, 2019
IN THE COURT OF SH. SANDEEP GARG,
ADDITIONAL DISTRICT JUDGE - 01,
NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CS No. 201/17
1. A. Subbiah (deceased)
S/o Late (Sh) Andi Nadar
21-A, South Street,
District Board Colony,
Madurai - 625 002
2. Smt S. Maragatham (deceased)
W/o Sh. A. Subbiah,
21-A, South Street,
District Board Colony,
Madurai - 625 002
Through their daughter :
Ms. A.S. Priscilla
W/o Sh. I.S. Jaya Singh
21-A, New no. 27, South Street,
Singarayar Colony,
Narimedu, Madurai - 625 002
......... Plaintiffs
Versus
1. Union of India
Secretary Ministry of Defence,
Government of India,
New Delhi.
2. The Chief of Army Staff
Army Headquarters,
New Delhi.
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A. Subbiah Vs. Union of India & Ors Page no. 1 of 28
3. Dr. J.S. Suggu
Lt. Col. AMC,
Classified Specialist (Anaesthesia)
166, Ministry Hospital,
Jammu (J&K) ... Defendants
Suit presented on : 17.09.1991
Judgment Pronounced on : 04.09.2019
JUDGMENT
1. The present suit for recovery of Rs. 30,00,000/- has been filed by the plaintiff averring that plaintiff no.1 (since deceased), is father of Capt. A.S. Prabhakar, Commissioner Officer in the Indian Army (deceased), is a teacher and is getting Rs.2,200/- as a salary after deduction of Provident Fund and loan etc. Plaintiff no. 2 is mother of deceased and is a housewife. Deceased Sh. A.S. Prabhakar was working in Indian Army as Captain at the material time. Defendant no. 3 is a doctor working in Military Hospital, Jammu at the relevant time. Plaintiff no.1 had spent all earnings and savings of his life on the education of the deceased and his daughter's education and her marriage.
2. It is averred that the deceased had a brilliant academic career and eminent record in games and sports throughout his educational career. As a student, he won distinction in elocution competition, short story writing etc., he was captain of school Cricket Team, Secretary of the English Literary Association and the President of the Chemistry Club in the school, while he was a student at Sainik School, Amarawathi Nagar. Thereafter, as a Cadet in the Defence Academy at Kadakwasala, he continued to be brilliant and secured 9th CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 2 of 28 position among the 300 Cadets in the passing out parade of the Defence Academy in June, 1984.
3. It is averred that later at the Indian Military Academy, Dehradun, he secured 27 position in June, 1985. His record continued to be bright after he joined the army. He served as Secretary to Officer's Club at Bikaner and was selected as ADC to Governor of Punjab in July, 1989. While serving the army in the young officers' course in November, 1986, he secured second position at Deolali. In the Military Engineering Course, he secured the first position with good record in November 1988. In personal habits, he was gentle, sophisticated and pleasing in manner. Various letters addressed to him by superior officers would speak for themselves of his calibre. Being a sportsman, he possessed robust health and adopted a sportsman like attitude in life. With the above background, he had a great and brilliant career ahead in future in the Indian Army in the service of nation.
4. It is averred that on 28.08.1989, he was admitted in Jammu Military Hospital for under-going surgery of Hernia. Defendant no. 3 was totally callous, negligent in the performance of his duties. He was unqualified as an anesthetist and did not know his job. Due to such circumstances, entirely on account of negligence of defendant no.3 in the hospital, the deceased breathed his last on 28.08.1989. Since the news of the untimely death of their son was benumbing enough to the plaintiffs, whose great hopes about their son were completely dashed by the callous and negligent attitude of the doctors in the organization like the Indian Army, the plaintiffs were crippled beyond words.
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5. It is averred that since the untimely death of their son, the plaintiffs have been representing about the matter with a number of high functionaries in the army and to its superior commander, the President of India. The plaintiffs understand that an enquiry was conducted during which the negligence of the doctor was clearly proved. The death of plaintiffs son was on account of callous and negligent acts / omissions of defendant no. 3 and but for carelessness and for lack of caution on the part of defendant no.3, the plaintiffs son would have lived a normal span of life and reached great heights in his career.
6. It is averred that as a result of death of their son, the plaintiffs have not only suffered loss of financial help at their old age, but also acute mental agony and suffering throughout rest of their lives. Such situation has been brought entirely due to the negligence on the part of Army Hospital, Jammu, particularly that of defendant no. 3. The first and second defendants are also vicariously liable for the negligence committed by defendant no.3. Plaintiff no. 1 had sent a petition dated 14.09.1989 to the President of India seeking to set up an enquiry commission to find out the culprits and for imparting suitable punishment to them.
7. It is averred that the Office of the President of India, vide its letter dated 22.09.1989 acknowledged the petition, but thereafter, no reply was received. Plaintiff no. 1 had also sent a reminder to defendant no. 1 vide his letter dated 13.02.1990 and another reminder dated 03.07,1990, but no satisfactory reply has been received by him. Plaintiff no. 1 had come to know from reliable resources that after an enquiry, it CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 4 of 28 was found that defendant no.3 was guilty of incompetence and negligence and on the basis of enquiry defendant no.2 was taking action about cancellation/ withdrawal of his specialisation as an anesthetist.
8. It is averred that the plaintiffs have lost their only son due to which, they have suffered irreparable and un-calculable injury in their old age, which cannot be compensated in terms of money. The deceased would have had atleast 34 years of service in the army. He was drawing a salary of Rs.3,890/- per month and free mess at the time of his death. He would have at least reached at the post of General, had he been alive. The plaintiffs seek damages to the tune of Rs.30,00,000/- from the defendants.
9. Joint written statement was filed on behalf of defendants no. 1 and 2 wherein it is averred that Late Capt. A.S. Prabhakar had voluntarily come for his surgery to the medical authorities. The surgery was not forced on him. Having being explained and upon understanding the risks of general anesthesia and surgery, the officer had given his written consent for surgery under any mode of anesthesia. The surgery was conducted and general anaesthesia was administered by a well qualified post graduate, classified surgeon and anesthesiologist respectively.
10. It is averred that defendant no. 3 is MD in Anaesthesia having almost 15 years service as a specialist at the time of surgery. The anesthesiologist had no previous record of any professional negligence. On the other hand, he is appreciated for his sincerity and dedication to CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 5 of 28 profession, which could be verified from his confidential dossiers. Doubting his professional capabilities amounts to doubting the credence of Medical University, which had bestowed the MD degree on the officer and also upon the superior medical authorities in the chain. No doubt, he has been performing the duties as graded and classified specialist for over 15 years, out of his total service of approximately 23 years.
11. It is averred that the death of the deceased was purely providential and not due to negligence of anyone. An impartial court of inquiry was conducted by HQ 26 Inf. Div and defendant no. 3 was exonerated of any negligence, as alleged by the plaintiffs. As per records available, the deceased was slightly obese (15% over weight, weight - 80 kg, height 183 cms, age 25 years) and he was indeed accident prone. Officer was operated for left sided inguinal hernia in childhood. He met with an accident in June, 1985 and had sustained head injury while playing hockey in the unit.
12. It is averred that the deceased was in low medical category for approximately one year. He was upgraded in end of May, 1986. He met with a road accident in April, 1987 wherein he had sustained multiple injuries including head injuries. He was in low medical category from July 1987 to January 1988. In May, 1988, he sustained another head injury while playing base ball and was in low medical category upto July, 1988. He reported sick for right sided complete inguinal hernia on 16.08.1989 for which, he was operated on 28.08.1989. The professional calibre of defendant no. 3 has been of above average standard.
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13. It is averred that the deceased suffered cardiac arrest on the operation table at around 11:40 hours and despite most effective management, he could not be revived. All possible resuscitative measures including internal cardiac massage were undertaken. Patient was revived by internal cardiac massage and use of defibrillator. He was managed in intensive care unit after the surgery and his condition had stabilized. However, the deceased developed cardiogenic shock with pulmonary oedema from which he could not be revived and collapsed. He was declared dead at 19:40 hours on 28.08.1989 in the hospital.
14. It is averred that the death was an unfortunate event, but the responsibility for death cannot be pinpointed to anybody's negligence except that providence was not in favour of the officer. Defendant no. 3 has since been approved for his colonel's rank and most probably, he is posted as senior advisor. Since there was no negligence on the part of the doctor concerned, the defendants are not liable to pay any damages, as sought by the plaintiff. Rest of the averments made in the plaint have been denied.
15. Replication to the written statement of defendants no. 1 and 2 was filed by the plaintiff wherein the allegations made in the written statement are denied and the averments made in the plaint are reiterated as affirmed.
16. Separate written statement was filed on behalf of defendant no. 3 wherein preliminary objections have been taken regarding suit being bad on account of mis-joinder of parties, barred by time and Court CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 7 of 28 lacking territorial jurisdiction to entertain and try the present suit. On merits, it is averred that defendant no. 3 passed his MBBS in 1963 and after working at Tata Main Hospital and in Bihar State Health Service, he joined Army Military Corps on deputation in January, 1967 when he was granted permanent commission. Defendant no. 3 underwent short course on anaesthesia and thereafter, two years course for anaesthesia at Armed Forces Medical College, Pune. He passed M.D. (Anaesthesia) in 1975 from Pune University. While in military service, defendant no. 3 had also been detailed to administer anaesthesia in Civil Government Hospitals on a reciprocal basis.
17. It is averred that defendant no.3 has also worked on reciprocal basis at Gaya Medical College Port Trust Hospital, G.P. Pant Hospital and has never lost any case due to anaesthesia. The details of treatment given to deceased are similar to those mentioned in written statement filed by defendants no. 1 and 2. Post mortem was recommended to find out the exact cause of death, but nothing could be ascertained even after postmortem except that deceased died of cardiac arrest. There was no evident cause. There was nothing wrong while anaesthesia was given. Rest of the averments made in the plaint have been denied.
18. Replication to the written statement of defendant no.3 was filed by the plaintiff wherein the averments made in the written statement are denied and the averments made in the plaint are reiterated as affirmed.
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19. Vide order dated 16.01.2006, the following issues were framed :
1. Whether there was negligence on the part of the defendant no.3 in performing operation of the son of the plaintiff on 28.08.1989, if yes, what relief the plaintiff is entitled for? OPP.
2. Whether any independent inquiry was got conducted by the President of India as requested by the plaintiff? OPP.
3. Whether the son of the plaintiff would have attained the seniority of General and would have been able to complete 34 years of service? OPP.
4. Whether the plaintiff is entitled for the compensation claimed and also entitled for interest, as claimed? OPP.
5. Relief.
20. In order to substantiate their case, the plaintiff no.1 (since deceased) himself deposed as PW1 and tendered his evidence by way of affidavit Ex PW1/A. He relied upon the documents :
Certificate dated 13.05.1978 by NCC Ex. PW1/1 ; Certificate of merit dated 25.07.1978 issued by NCC Ex. PW1/2;
Letter dated 14.08.1978 Ex. PW1/3; Certificate dated 08.09.1978 Ex. PW1/4; Certificate dated 24.10.1978 issued by Sainik School Ex. PW1/5;
Certificate issued by NCC Ex. PW1/6; Senior UN Information Test Certificate Ex. PW1/7; Certificate dated 26.09.1979 Ex. PW1/8; NCC Part II Certificate issued by Junior Division Army wing in March 1980 Ex. PW1/9;
Certificate dated 14.05.1980 issued by NCC Ex. PW1/10;
Letter dated 21.08.1980 Ex. PW1/11;
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Letter dated 01.09.1980 Ex. PW1/12;
Letter dated 09.09.1980 Ex. PW1/13;
Letter dated 10.05.1986 Ex. PW1/14;
Special medical examination report Ex.PW1/15;
Letter dated 16.07.1988 Ex. PW1/16;
Letter dated 05.08.1989 Ex. PW1/17;
Individual report on students attending courses of
instructions at College of Military Engineering Pune Ex. PW1/18;
Letter dated 05.07.1989 Ex. PW1/19;
Letter dated 14.08.1989 Ex. PW1/20;
Letter dated 27.08.1989 Ex. PW1/21;
Death certificate Ex. PW1/22;
Representation and request to President of India to
order for enquiry Ex.PW1/23 de-exhibited and given mark A;
Letter dated 15.09.1989 Ex. PW1/24;
Letter dated 03.07.1990 Ex.PW1/25;
Letter dated 16.10.1990 Ex. PW1/26;
Letter dated 16.10.1989 Ex. PW1/27;
Post mortem report / findings issued by 166 Military
Hospital vide their report dated 19.09.1989 Ex. PW1/28 de-exhibited and given mark B; report / findings issued by 166 Military Hospital vide their report dated 19.09.1989 Ex. PW1/29 de- exhibited and given mark C;
Letter dated 22.09.1989 received from office of President acknowledging letter dated 14.09.1989 Ex. PW1/30 de-exhibited and given mark D;
Legal heir certificate Ex. PW1/31;
report dated 30.12.1989 Ex.PW1/32 de-exhibited and
given mark E;
Letter dated 13.02.1990 Ex. PW1/33 de-exhibited and
given mark F;
letter dated 18.04.1990 Ex. PW1/34;
legal notice dated 30.11.1990 Ex. PW1/35 de-
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exhibited and given mark G;
letter dated 19.09.1992 Ex. PW1/36;
Certificate : Battle Physical Efficiency test Ex. PW1/37 and Medical categories certificate Ex.PW1/38.
21. Thereafter, ld counsel for plaintiff closed plaintiff's evidence on 22.07.2010.
22. In order to substantiate their defence, the defendants examined Lt. Col. Narender Singh as DW1 who tendered his evidence by way of affidavit as Ex. DW1/X. He relied upon documents Ex. DW1/1 to Ex. DW1/3. However, the said documents Ex. DW1/1 to Ex DW1/3 were de-exhibited vide order dated 22.12.2011 passed by the Ld. Joint Registrar, High Court of Delhi. Vide order dated 22.12.2011, the defendants evidence was closed.
23. The Court has gone through the written submissions filed by Sh. Pawan Kumar Bahl, Ld. counsel for plaintiff and Ms. Ruby, Ld counsel for all the three defendants and has gone through the record.
ISSUES NO. 1 & 4:
1. Whether there was negligence on the part of the defendant no.3 in performing operation of the son of the plaintiffs on 28.08.1989. If yes, what relief the plaintiff is entitled for? OPP.
4. Whether the plaintiff is entitled for the compensation claimed and also entitled for interest, as claimed? OPP.
24. Issues no. 1 & 4 are taken up together, being intricately CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 11 of 28 connected. It has been emphatically contended on behalf of the plaintiff that defendants no. 1 and 2 are stationed in New Delhi. During his cross examination, DW1 admitted that hospitalization records of Armed Forces Officers in respect of their treatment at military hospitals are maintained by Additional Director General of Mainpower [MP5(b)], Adjutant General Branch, Army Headquarters, New Delhi. Initially, this suit was filed as IPA no. 23 of 1991, in which lack of territorial jurisdiction was pleaded by the defendants. The suit was subsequently numbered as OS 400/94. A transfer application bearing SC no. 441-443/2007 was filed by the plaintiff before the Hon'ble Supreme Court which was dismissed. No issue regarding territorial jurisdiction was framed and no evidence on this aspect has been adduced. In any case, the defendants are estopped from agitating the issue of territorial jurisdiction.
25. It has been emphatically contended on behalf of the plaintiffs that in the insurance claim lodged by the plaintiffs with LIC, the defendants had mentioned 'indirect inguinal hernia one year back' without any supporting documents. Thereupon, LIC had declined the claim of the plaintiffs on the ground that while taking the insurance policy, the deceased had given false statement. However, subsequently, the commanding officer vide his letter dated 15.05.1990, written to the Zonal Manager, LIC stated that on the day of issuance of the policy and even during proficiency test, the deceased was in medical category shape 1.
26. It has been contended on behalf of the plaintiffs that it was during routine medical check up in August, 1989, the unit doctor had detected hernia. Pursuant to the said letter, LIC admitted the claim of the CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 12 of 28 plaintiffs. The plaintiffs had also filed another civil suit no. 283/2004 before Hon'ble High Court of Madras wherein, the plaintiffs have claimed damages for mental and physical harassment caused to them. The present suit pertains to damages on account of medical negligence while conducting surgery of the deceased. Therefore, the present suit is not barred by the doctrine of Res judicata.
27. It has been contended on behalf of the plaintiffs that the contents of documents adduced by the defendants during their evidence are contrary to their pleadings. During his cross examination, DW1 deposed that he cannot identify the handwriting or signatures of the doctors on any of the documents tendered by him. He expressed ignorance about pre-anaesthetic tests required to be conducted before conducting surgery and about the equipment required in the operation theatre. He stated that he cannot say as to whether the medical records of the deceased were seen before conducting his surgery or not. He stated that he cannot tell as to what blood or urine tests were conducted prior to the surgery of the deceased.
28. It has been contended on behalf of the plaintiffs that in the event of death of the patient, the anesthetist is supposed to submit all his medical records in original to the chief doctor. However, the medical records of the deceased shows that notes are written after his death. The documents submitted are copies and not the originals. It appears that records were fabricated subsequently by making interpolations so as to reflect that effective steps were taken to manage the cardiac arrest, but all in vain.
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29. It has been contended on behalf of the plaintiffs that defendant no.3, who had administered anaesthesia to the deceased, did not depose in the Court. The documents were not maintained as per the standard guidelines, as per which, all the pages are required to be numbered, dated and corrections / over writings ought to be signed. A perusal of document which was initially exhibited as Ex. DW1/3 shows that it is mentioned at the top 'death in hospital, cardiac arrest on operation table, confidential'. It is evident that this document was prepared after the death of the deceased and not during his treatment or surgery.
30. It has been contended on behalf of the plaintiff that the documents adduced by the plaintiffs establish that the officials, particularly immediate seniors of the deceased were jealous with him and they were not giving any importance to his life. Though, the deceased had never undergone prior herniorrhaphy. However, in the document which was previously exhibited as Ex. DW1/2, it was mentioned on 16.08.1989 that the deceased had past history of surgery left inguinal region 20 years ago. As per the autopsy report dated 19.09.1989, there is no indication of any old inguinal region surgery.
31. It has been contended on behalf of the plaintiffs that at the time of admission, the deceased did not have any complications of inguinal hernia and therefore, it was not a case of surgical emergency. The record does not reflect that adequate clinical examination and investigations were conducted so as to diagnose inguinal hernia CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 14 of 28 requiring surgery and to rule out other conditions having symptoms similar to that of inguinal hernia. An ultrasound scan ought to have been conducted. A pre-anaesthetic evaluation is mandatory protocol prior to any surgery which include pathological and radiological investigations.
32. It has been contended on behalf of the plaintiffs that no specific consent for administering general anesthesia was obtained. In such cases, regional anesthesia i.e. spinal anesthesia is preferable and more suitable. General anesthesia entails more complications. Defendant no. 3 himself did not administer the injection and infact got it administered by other person. Similarly, instead of monitoring the pulse himself, he engaged his assistants to monitor the pulse and that too with hand. The standing rule of keeping resuscitation equipment and cardiac monitor in the operation theatre during surgery was not followed.
33. It has been contended on behalf of the plaintiffs that recommended deliverable energy in case of open heart defibrillation is 5- 40 joules, whereas shock of 160-180 joules was given four times which is unjustified and unwarranted. Excess energy damages the heart. 100% continuous oxygen was given for more than 8 hours without monitoring blood gases and oxygen concentration, which causes oxygen toxicity. The autopsy report indicates pulmonary oedma. The quantum of IV fluid administered to the deceased establishes that 1300 ml of excess IV fluid was infused without application of mind which led to circulatory overload on the ailing heart.
34. It has been contended on behalf of the plaintiffs that on-call CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 15 of 28 physician is not supposed to prescribe medicine, but the record shows that the on-call pediatrician prescribed medicine which was cardiac depressent. Though, the postmortem was conducted on 28.08.1989, but the organs were forwarded for forensic examination only on 13.12.1989 i.e. after a delay of almost 4 months. Such an inordinate delay in sending the organs is contrary to the norms governing the same. An inference can be drawn that either the defendants did not want to find out the real cause of death of the deceased or they wanted to suppress the real cause of death of the deceased.
35. It has been contended on behalf of the plaintiffs that defendant no. 3 was not supposed to administer anaesthesia without examining the previous medical records and medical history of the deceased. The surgery of deceased was a planned surgery and it was not conducted in emergency situation. Therefore, there was no need for defendant no. 3 to act in haste. Blood grouping of patient is required to be done before conducting surgery and IV lines are supposed to be started. The histopathological report dated 19.09.1989 shows that most probably, the deceased died of cardiogenic shock as a result of cardiac arrest. However, the cause of death is required to be mentioned in unambiguous terms. Therefore, the plaintiffs have been successful in establishing that there was negligence on the part of defendant no. 3 in conducting surgery of their son on 28.08.1989 and consequently, they are entitled to damages.
36. Reliance is placed upon the following journals, judgments and documents :
CS no. 201/2017A. Subbiah Vs. Union of India & Ors Page no. 16 of 28 i. 20th edn. 1977 fifth reprint, 1986 in page 73 of Modi's medical jurisprudence and toxicology ii. The Journal of the Indian Medical Association volume 108, September 2010 - under editorial note iii. 20th edn. 1977 fifth reprint, 1986 in page 437 para 3 of Modi's medical jurisprudence and toxicology iv. 20th edn. 1977 fifth reprint, 1986 in page 433 of Modi's medical jurisprudence and toxicology v. TIMA news letter volume 1 issues June 2012 vi. Supreme Court Reports (2013) II SCR 864 DR vii.Nirod Baran Banerjee Vs. Dy. Commissioner of Hazari Bagh 1980 AIR 1109, 1980 SCR (2) 1043, 1980 SCC (3) 5 dated 14.02.1980 viii. Idhyadhar Vs. Mankikrao & Anr AIR 1999 SC 1441 -
dated 17.03.1999 ix. Syad Akbar Vs. State of Karnataka AIR 1979 SC 1848
- dated 25.07.1979 x. Badat and Co. Vs. East India Trading Co. AIR 1964 SC 538 (547) - dated 10.05.1963 xi. Dhobi Yadav Vs. State of Bihar, 1989 CrLJ (NOC) 193 (Pat) xii.Civil case appeal no. 3541 of 2002 Martin FD Souza Vs. Mohd. Ishfaq - 17.02.2009 xiii.Krishi Utpadan Mandi Samiti Sahaswan Distt Badaun Thr. Secretary Vs. Bipin Kumar & Anr. 2004 (2) SC -
07.01.2004 xiv. Smt Vinitha Ashok vs. Lakshmi Hospital & Ors. 2001 (8) SCC 731 - 25.09.2001 xv. V. Kishan Rao vs. Nikhil Super Specialty Hospital & Anr Civil Appeal no 2641 of 2010 - 08.03.2010 xvi.CPJ June 2008 Gujarat State 267 xvii. The Union of India & Ors Vs. Bertine Jeanne Marie & Otr A.S. No. 596 of 2003 - 09.11.2010 xviii.Birbal Vs. Devilal & Ors, 1982 CrLJ 96 (Raj) xix. Nizam's Institute of Medical Sciences Vs. Prasanth S Dhanaka 2009 (2) CPJ 61 xx. 1968 (1) SC page 1413 xxi. AIR 1971 SC 2439 (2443) CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 17 of 28 xxii. State of Haryana & Ors vs. Smt Santra - 24.04.2000 xxiii.Ms. Ins. Malhotra & Otr Vs. Dr. A. Kriplani & Ors Civil appeal no. 1386 of 2001 - 24.03.2009 xxiv. Dr. Kunal Saha Vs. Dr. Sukumar Mukherjee and others Civil Appeal no. 1727 of 2007 - 07.08.2009
37. Per contra, it has been emphatically contended on behalf of the defendants that though the seat of Union of India is at New Delhi, but the Union of India has its presence throughout India. Admittedly, the alleged negligence on the part of defendant no. 3 had happened while performing surgery at Military Hospital, Jammu. Therefore, the entire cause of action had arisen in the State of Jammu & Kashmir and this court has got no territorial jurisdiction to entertain and try the present suit. Reliance is placed upon judgment delivered by Hon'ble High Court of Delhi in the case of Gupta Sanitary Stores Vs. Union of India and Anr. AIR 1985 Delhi 122 wherein it has been held that suit against government must be filed at the place where cause of action wholly or partly arises.
38. It has been contended on behalf of the defendants that the plaintiffs have concealed material fact of having filed and identical suit before Hon'ble High Court of Madras. This fact is recorded in order dated 10.01.2007 passed in the present suit. During his cross-examination, PW-01 admitted this fact, though, he claimed that the other suit is for damages on account of mental agony caused due to filing of false certificate. As a matter of fact, this suit and the other suit filed before Hon'ble High Court of Madras are identical as they are based on same cause of action. Therefore, the present suit is barred by res judicata.
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39. It has been contended on behalf of the defendants that defendant no. 3 is a duly qualified Senior Anaesthetist who has administered anaesthesia in about 23,000/- cases and he had been promoted to the Colonel's rank. During his cross-examination, PW-01 himself admitted that defendant no. 3 is a qualified doctor. However, the allegation of the plaintiffs regarding job being assigned to the compounder is completely unfounded and plaintiff has failed to adduce any evidence in this regard.
40. It has been contended on behalf of defendants that the plaintiffs have alleged that defendant no. 3 had failed to conduct pre- anaesthetic investigations i.e. test x-ray, lipid profile etc. and the surgery was performed without resuscitation facilities such as cardiac monitor and defibrillator etc. During his cross-examination on this aspect, when PW-01 was asked as to whether he has placed any medical science manual to support his claim, he answered in the negative. Further, in reply to the question as to whether, he had filed any document to establish that pre-anaesthetic investigations were not conducted, PW-01 replied that he had contacted the doctor and inquired about it from him. He came to know about non-performance of pre-anaesthetic investigations from the doctor.
41. It has been contended on behalf of the defendants that when PW-01 was asked as to which doctor, he had contacted, he replied that he had contacted so many doctors and not one. PW-01 further admitted during his cross-examination that he has not placed on record CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 19 of 28 any document to support his claim that pre-anaesthetic investigations were not conducted and cardiac monitor was not used. The plaintiffs case is based on presumptions, assumptions and hearsay evidence.
42. It has been contended on behalf of the defendants that though, all investigations were conducted by defendant no. 3, the deceased did not disclose his past history of head injuries and treatment given for the same. He was not even carrying his Medical Health Record Card. Therefore, defendant no. 3 cannot be blamed for the same. There was nothing wrong in the Anaesthesia given to the deceased. His vital parameters were stable throughout. The surgery was performed under optimal ideal conditions in a standard operation theatre where such surgries have been conducted in routine. Therefore, the allegation of plaintiffs that the said surgery was performed without requisite facilities is devoid of any substance.
43. It has been contended on behalf of the defendants that it is evident from the report dated 18.04.1990 submitted by Discipline and Vigilance Directorate that proper and timely treatment was given to the deceased, but unfortunately, he expired. It is well settled proposition of law governing Medical Negligence that error of judgment does not make the doctor liable. Though, in the suit, compensation of Rs. 30 Lacs is sought, but the plaintiffs have sought to enhance the same in evidence by way of affidavit of PW-01 to Rs. 1,07,20,000/- which is not permissible. The documents relied upon in the written submissions filed by the plaintiffs have not been tendered in evidence and therefore, they cannot be read and relied upon. The plaintiffs have miserably failed to CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 20 of 28 discharge the onus of establishing negligence on the part of defendant no. 3 while conducting surgery of their son. Therefore, this issue deserves to be decided in favour of the defendants and against the plaintiffs.
44. Reliance is placed upon the following judgments :
(i) Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622
(ii) Brahm Prakash Vs. M/s Wraps Hygiene India Ltd RSA No. 316/2006
(iii) Kusum Sharma & Ors Vs. Batra Hospital & Ors 2010 (2) UJ SC 0953
(iv) Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee & Ors 2009 9 SCC 221
(v) Roe and Woolley Vs. Minister of Health (1954) 2 QB 66 FINDING OF ISSUES NO. 1 & 4 :
45. A perusal of the record shows that the entire cause of action pertaining to alleged medical negligence on the part of defendant no. 3 had arisen in Jammu. The mere fact that hospitalization records of officers in respect of their treatment at Military Hospitals are maintained at Army Headquarters and defendants no. 1 & 2 are based at Delhi will not have any bearing on the aspect of cause of action. It has been held by the Hon'ble High Court of Delhi in the case of Gupta Sanitary Stores Vs. Union of India and Anr. AIR 1985 Delhi 122 that suit against government should be filed at a place where cause of action, wholly or in part, arises. Therefore, this court has no territorial jurisdiction to entertain and try the present suit.
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46. Admittedly, the other suit instituted by the plaintiffs before Hon'ble High Court of Madras was not heard and finally decided. Therefore, the present suit is not barred by res judicata. A perusal of the testimony of PW-01 Sh. A. Subbiah shows that documents, Ex. PW 1/1 to Ex. PW 1/15; Ex. PW 1/17 to Ex. PW 1/29; Ex. PW 1/32 to Ex. PW 1/35; Ex. PW 1/37 to Ex. PW 1/42 and Ex. PW 1/45 to Ex. PW 1/49 tendered in evidence and relied upon by the plaintiffs have no bearing on the aspect of negligence on the part of defendant no. 3 while giving treatment and administering anaesthesia to the deceased. The remaining documents are Ex. PW 1/16 i.e. medical examination reports dated 31.12.1987 which do not have any bearing on the alleged negligence in treating and administering anaesthesia in August, 1989 as there is a substantial time gap between the said reports and the period of treatment in question.
47. The documents, Mark-D and Ex. PW 1/31 are the Autopsy Report dated 19.09.1989 (De-exhibited from Ex. PW 1/30 on 13.07.2009) and the Histopathological Examination Report dated 19.09.1989. As per the Autopsy and Histopathological Reports, the deceased suffered a cardiac arrest, which probably resulted into cardiogenic shock ultimately leading to his death. Therefore, both these reports reflect the probable cause of death of the deceased. These reports have a very limited relevance in context of the alleged medical negligence on the part of defendant no. 3 as they only indicate the physical condition of the organs and marks / injuries on the dead body of the deceased. The evidentiary value of these documents is at best CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 22 of 28 corroborative. Similarly, report dated 30.12.1989 given by Forensic Science Laboratory, Ex. PW 1/34 is also relevant only for the purpose of establishing delay on the part of Military Hospital, Jammu in sending the organs. The report dated 18.04.1990 issued by Discipline and Vigilance Directorate, Ex. PW 1/36 rather fortifies the defence of the defendants that there was no negligence on the part of defendant no. 3 while treating and administering Anaesthesia to the deceased. Certificate dated 19.09.1992, Ex. PW 1/43 proves that the medical category of the deceased was upgraded from 06.07.1988 till his death. This certificate does not have any bearing on the aspect of alleged medical negligence on the part of defendant no. 3.
48. The expert opinion given by Dr. Thamaskar of Nagpur, Ex. PW 1/44 cannot be read into evidence as he has not been examined and offered for being cross-examined by the defendants. Therefore, it is clear that the plaintiffs have not tendered and proved any document, which may constitute substantive piece of evidence, in order to establish medical negligence on the part of defendant no. 3 while treating and administering Anaesthesia to the deceased. None of the documents adduced by the plaintiffs is a substantive piece of evidence qua the alleged medical negligence on the part of defendant no. 3.
49. Admittedly, none of the plaintiffs were present in the hospital at the time of treatment and surgery of the deceased. It has been admitted by PW-01 during his cross-examination that the deceased had sustained head injury in June, 1985. He alleged that defendant no.3 had delegated his job to his compounder/un-qualified physician which has CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 23 of 28 not been substantiated. Similarly, the allegations attributing to death of his son pursuant to a conspiracy have also not been substantiated.
50. During his cross examination, PW1 admitted that he has not filed any document to establish that pre-anaesthetic investigations / tests were not got conducted by defendant no. 3 or that cardiac monitor was not used. Further, PW-01 had stated that the source of his information regarding failure to conduct pre-anaesthetic investigations was several doctors, whom he had consulted. Therefore, the allegations of the plaintiffs regarding failure to conduct pre-anaesthetic investigations and omission to use cardiac monitor are hearsay.
51. A perusal of the record shows that the plaintiffs had filed an application U/o 23 Rule 10 A CPC seeking opinion from doctors of AIIMS or Safdarjung Hospital and for adducing additional evidence. The said application was dismissed vide order dated 10.09.2012 which had attained finality. Therefore, there is no evidence of experts / doctors on record to substantiate / establish medical negligence on the part of defendant no. 3.
52. It has been held by the Hon'ble Supreme Court in the case of Jacob Mathew Vs. State of Punjab & Anr (2005) 6 SCC 1 that the doctor has a discretion in choosing treatment which he proposes to give to a patient. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other, the same will not make him / her liable, if the CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 24 of 28 course of action chosen by him is acceptable to the medical profession. Similarly, an error of judgment does not constitute negligence.
53. It is well settled proposition of law that in order to succeed, a plaintiff has to discharge the initial onus cast U/s 101 of the Indian Evidence Act. In the present case, the court holds that the plaintiffs have miserably failed to discharge their onus of establishing negligence on the part of defendant no. 3 in treating and administering Anaesthesia to the deceased. Consequently, they are not entitled to any compensation. Issues no. 1 & 4 are accordingly, decided in favour of the defendants and against the plaintiffs.
ISSUE NO. 2 :
2. Whether any independent inquiry was got conducted by the President of India as requested by the plaintiff? OPP.
54. It has been emphatically contended on behalf of the plaintiffs that since the defendants did not submit the inquiry report, adverse inference may be drawn against them. The plaintiffs had received only a reply dated 18.04.1990, Ex. PW 1/34 given by Discipline and Vigilance Directorate, Army Headquarters wherein it is admitted that cardiac arrest is a known complication of general anaesthesia, though rare.
55. Per contra, it has been contended on behalf of the defendants that an impartial court of inquiry was conducted by HQ.26 Inf. Division during which, defendant no. 3 was exonerated on the allegations of the negligence. Similarly, it has been established from the CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 25 of 28 reply dated 18.04.1990, Ex. PW 1/34 given by Discipline and Vigilance Directorate, Army Headquarters that an independent inquiry was got conducted during which, it was found that there was no negligence on the part of defendant no. 3. Therefore, the defendants have been able to establish that independent inquiries also found that there was no negligence on the part of defendant no. 3 in treating and administering anaesthesia to the deceased.
FINDING OF ISSUE NO. 2 :
56. A perusal of the testimony of PW-01 Sh. A. Subbiah shows that he has relied upon reply dated 18.04.1990, Ex. PW 1/34 given by Discipline and Vigilance Directorate, Army Headquarters. However, the said reply does not indicate that inquiry was got conducted by the President of India. Therefore, the court holds that the plaintiffs have failed to establish that any independent inquiry was got conducted by the President of India upon the request of the plaintiffs. Issue no. 2 is accordingly, decided in favour of the defendants and against the plaintiffs.
ISSUE NO. 3 :
Whether the son of the plaintiff would have attained the seniority of General and would have been able to complete 34 years of service? OPP.
57. It has been contended on behalf of the plaintiffs that the plaintiffs have established that the deceased had outstanding academic record and he was enjoying good health. He secured 2nd position in the CS no. 201/2017 A. Subbiah Vs. Union of India & Ors Page no. 26 of 28 Young Officers course at Nasik in 1986. He was selected as ADC to Governor of Punjab in July, 1989. He was selected for the most advanced course on Gunnery. Therefore, he would have attained seniority and reached the position of General. His life span would have been about 80 years and therefore, he would have been able to complete 34 years of service.
59. Per contra, no arguments on this issue have been advanced on behalf of the defendants.
FINDING OF ISSUE NO. 3:
60. From the documents, Ex. PW 1/1 to Ex. PW 1/20, Ex. PW 1/22, Ex. PW 1/26 to Ex. PW 1/28, Ex. PW 1/41 to Ex. PW 1/43 and Ex. PW 1/45 to Ex. PW 1/48, adduced by the plaintiffs, they have established that the deceased was having good academic, health and service record. Therefore, in the ordinary course, he would have completed his entire service tenure ending with his superannuation. However, no evidence except bald claim of PW-01 has been adduced by the plaintiffs to establish that the deceased would have attained the seniority of General. Therefore, the court holds that the plaintiffs have been successful in establishing that the deceased would have been able to complete 34 years of service in the ordinary course. However, they have failed to establish that the deceased would have attained the seniority of General. This issue is accordingly, partly decided in favour of plaintiffs and against the defendants and partly decided against the plaintiffs and in favour of the defendants.
CS no. 201/2017A. Subbiah Vs. Union of India & Ors Page no. 27 of 28 RELIEF :
61. In view of the findings recorded on issues no 1 & 4, the suit is dismissed. Parties to bear their own costs. Decree sheet be drawn accordingly. Digitally signed by SANDEEP GARG File be consigned to Record Room.
SANDEEP Date:
GARG 2019.09.04
Pronounced in open Court 05:00:49
+0530
on 04.09.2019
(Sandeep Garg)
Additional District Judge-01,
New Delhi District,
Patiala House Courts,
New Delhi
CS no. 201/2017
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