Madras High Court
Manonmaniammal, Manimozhi, Minor ... vs Dr. Duraikannu And Ors. on 28 June, 2005
Equivalent citations: (2005)4MLJ4
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This revision is directed against the order of the Sub Court, Chidambaram, passed in I.A.No.129/2003 in O.S.No. 138/1997, dismissing the application filed under Section Order 1 Rule 10 (2) CPC, declining to implead the Chief Medical Officer, Villupuram and District Collector, Villupuram as Defendants to the suits. The Plaintiffs are the Revision Petitioners.
2. O.S.No.138/1997.
The deceased 1st Plaintiff - Shanmugam Sundaram was bitten by a stray dog on 30.1.1996. From 31.3.1996 to 6.4.1996, he had taken treatment in Government Hospital Villupuram and he was given seven anti-rabi injections continuously. On 8.4.1996, he came to his father-in-law's house at Parangipettai and he developed hiccups and other complications. He was admitted as in-patient in Government Hospital, Parangipettai on 10.4.1996. On 10.4.1996, the Defendant gave injections near the spinal cord of the back side and hip portion of the 1st Plaintiff. Thereafter, the 1st Plaintiff developed complications and his lower limbs were greatly affected. Since his condition became serious, on 11.4.1996 he went into coma stage and he was discharged from the hospital. Father-in-law of the 1st Plaintiff took him to JIPMER Hospital, Pondicherry. The first Plaintiff had taken treatment in JIPMER Hospital in various spells. In JIPMER Hospital, intensive treatment was given to him. Alleging negligence on the part of the 1st Defendant in giving treatment to the 1st Plaintiff when he was admitted as in-patient in Government Hospital, Parangipettai, the Plaintiff has filed the suit, claiming damages of Rs. 6,00,000/-.
3. During the pendency of the suit, the first Plaintiff died without recovering from the illness he suffered. His mother, wife, son and daughter are impleaded as Plaintiffs 2 to 5.
4. Denying medical negligence, the Defendants have filed the Written Statement alleging that father-in-law of the first Plaintiff is a neighbour, just opposite to the Doctors quarters. In spite of intensive treatment, the first Plaintiff's health condition remained almost the same. He was advised to go to Government Headquarters Hospital at Cuddalore. But he was admitted in Krishna Hospital at Cuddalore. The nature of treatment given there is not known to the Defendants. Similarly, after discharge from Krishna Hospital, the first Plaintiff was admitted at JIPMER Hospital. The development of bed-sore and other complications have nothing to do with the injections and treatment he received at Government Hospital, Port Nova. In the Written Statement, the Defendants have further alleged that injection Analgin was not the cause for the alleged problems of the first Plaintiff. In paragraph 7 of the Written Statement, the Defendants have alleged that the Doctor who administered ARV Injection at Villupuram Government Hospital and the Doctor at JIPMER Hospital who treated the first Plaintiff, are also necessary parties to the suit and therefore, the suit is bad for non-joinder of necessary parties.
5. Written statement of the Defendants was filed on 15.3.2000. Issues were framed and the trial commenced. After the examination of witnesses on the Plaintiff side, the Plaintiffs have filed I.A. No. 129/2003 under Order 1 Rule 10(2) CPC for impleading the Chief Medical Officer and the District Collector, Villupuram. In the supporting affidavit, the Plaintiffs have referred to the Written Statement, wherein the Defendants have contended that the Doctor who gave ARV injection and the Doctors at Krishna Hospital and JIPMER Hospital are also necessary parties to the suit. It has been alleged that if the Court comes to the conclusion that the first Plaintiff's suffering and death was only due to administration of ARV injection for dog bite at Government Hospital, Villpuram and not due to Analgin injection given by the first Defendant, for complete and effective adjudication, Chief Medical Officer, Villupuram and District Collector Villupuram are necessary parties and are to be impleaded as Defendants. The Defendants reiterated the earlier allegations in the Written Statement. It is alleged that the treatment given by the first Plaintiff was proper. The petition has been belatedly filed. If the petition is allowed, it would entirely change the cause of action and that the proposed parties cannot be impleaded as parties to the suit.
6. Upon consideration of the contentions of both parties, the learned Subordinate Judge dismissed the application inter-alia on the following grounds :-
(i) that the application has been filed nearly seven years after the filing of the suit;
(ii) trial commenced on 5.10.2001 and the application has been filed after examination of two witnesses and the application has been belatedly filed;
(iii) in the plaint allegations, dog bite and injection given on 31.3.1996 has not been made the cause of action.
(iv) the alleged treatment was in the year 1996. Application has been filed in the year 2003 nearly seven years after the occurrence and the claim is barred by limitation.
7. Aggrieved over the dismissal of the petition to implead the proposed parties, the Plaintiffs have preferred this revision. The learned counsel for the Revision Petitioners has contended that the impleading of Chief Medical Officer and District Collector, Villpuram was initiated in the light of the allegations in the Written Statement. Further, contending that the State of Tamil Nadu is already a party to the suit, it is submitted that the question of limitation would not arise. The learned counsel has urged that for complete and proper and effective adjudication, it is necessary to implead the proposed parties.
8. Opposing the application for impleading the proposed parties, the learned counsel for the Respondents has contended that the application has been belatedly filed. Submitting that the cause of action is entirely different, the learned counsel has contended that if the parties are impleaded, it would change the entire cause of action originally pleaded in the suit. It has been further submitted that under Order 1, Rule 10(5) CPC cause of action arose only from the date of service of summons which is clearly barred by limitation. Submitting that there is no direct nexus between the first Plaintiff and the proposed parties, the learned Additional Government Pleader has alleged that the impugned order does not suffer from serious infirmity warranting interference.
10. Upon consideration of the contentions of both parties, the impugned order, pleadings and other materials on record, the following points arise for consideration in this revision :-
(i) Whether it would be proper to allow the application under Order 1 Rule 10 CPC filed nearly seven years after the occurrence, to implead the District Collector and Chief Medical Officer, Villupuram ?
(ii) Whether the impugned order declining to implead the proposed parties suffer from any material irregularity warranting interference ?
11. It is a very unfortunate case that the first Plaintiff died of complications due to dog bite and subsequent treatment. He was bitten by a stray dog on 30.3.1996. He had series of treatment in various hospitals. For better understanding of the contentious points urged, we may refer to the series of treatment in their chronological order :
Dog Bite : 30.03.1996 Govt. Hospital Villupuram where he was given anti-rabi injection : 31.3.1996 to 6.4.1996 Govt. Hospital Parangipettai : 9.4.1996 to 11.4.1996 Discharged on : 11.4.1996 Treatment at Krishna Hospital : 11.4.1996 JIPMER Hospital : 11.4.1996 to 21.5.1996 -and- From June to September 1996 in different spells The plaint narrates the entire history of the treatment.
12. Cause of action is based on the treatment given at the Government Hospital, Parangipettai by the first Defendant. Cause of action referred to in Paragraph 4 of the Plaintiff reads :
"The cause of action arose for this suit on 9.4.1996 when the Petitioner/Plaintiff took treatment with 1st Respondent/1st Defendant on 10.4.1996, when the 1st Petitioner/1st Plaintiff was admitted as in-patient at Government Hospital, Parangipettai when the 1st Respondent/1st Defendant gave treatment as Medical Officer of that Hospital, that on such treatment the 1st Petitioner/1st Plaintiff became critical, his discharge and his subsequent treatment and the Petitioner's/Plaintiff's stay at Parangipettai ..."
Thus, the main claim is based on the mistreatment in the Government Hospital, Parangipettai. No doubt, by the proposed amendment, the Plaintiff seeks to implead Chief Medical Officer Villupuram and the District Collector, Villupuram representing the State of Tamil Nadu. If the proposed parties are impleaded, the cause of action would be changed to the earlier period 31.3.1996 to 6.4.1996, when the first Plaintiff was given anti-rabi injections in Government Hospital Villupuram. Impleading of the proposed parties would change the entire cause of action.
13. Earlier, the issue involved was whether the first Plaintiff developed complications due to the treatment given at the Government Hospital, Parangipettai. The question involved is whether giving of Analgin and treatment in Government Hospital, Parangipettai led to the complications affecting his lower limbs. The main question involved is whether the complications were due to treatment given at the Government Hospital, Parangiepettai. By impleading the proposed parties, the entire cause of action and the subject matter will be changed. If the proposed parties are to be impleaded, the allegations in the plaint apart from the cause title are also to be amended which would change the entire nature of the suit.
14. True, the Plaintiff is dominus litus in the matter of addition of parties. But the theory of dominus litus cannot be over-stretched to add new parties to change the cause of action and adding further averments which would add few more issues. Incidentally, it is necessary to point out that in the Written Statement in paragraph No. 7, the Defendants have inter-alia alleged that the Doctors at Krishna Hospital and JIPMER Hospital are also necessary parties to the suit and if there is any liability to be fixed, that has to be fixed against them also. Curiously, the Plaintiffs have filed the petition to implead only the Chief Medical Officer and District Collector, Villupuram but not the other doctors of other hospitals. For deciding the real matter in controversy, the proposed parties are neither necessary nor proper parties.
15. That apart, more than one reason could be pointed out for declining to implead the proposed parties. The suit is of the year 1997. Written Statement was filed on 15.3.2000. In paragraph No. 7 of the Written Statement, the Defendants have clearly alleged that the Villupuram Doctor, who administered ARV injection and the Doctors of Krishna Hospital and JIPMER hospital are necessary parties to the suit and if there is any liability to be fixed, that has to be fixed as against the other Doctors also. Even though the Written Statement was filed on 15.3.2000, no steps were taken for impleading those parties. Trial was commenced in 2001. The trial prolonged for a long time. After the witnesses were examined on the Plaintiffs' side, at this stage, nearly two years after the commencement of trial, application under Order 1 Rule 10(2) CPC was filed on 2.1.2003 and the request to implead the proposed parties is highly belated and cannot be countenanced.
16. Claim is of the year 1996. For claiming damages as against the proposed parties, liability is sought to be fixed in the year 2003. Under Order 1, Rule 10(5) CPC, "Subject to the provisions of the (Indian Limitation Act, 1877), Section 22, the proceedings as against any person added as Defendant shall be deemed to have begun only on the service of the summons."
Under Section 21 of the Limitation Act, while adding or substituting a Plaintiff or Defendant, the suit as regards him shall be deemed to have been instituted when he was so made a party. Claim for damages ought to have been made within three years from the time of the treatment. Liability is sought to be fixed in 2003. It would not be proper or legal to implead a person as a Defendant in a suit against whom the claim has become barred by limitation. In this regard, we may point out certain handicap of the Department also. Chief Medical Officer, Villupuram and District Collector Villupuram have no direct nexus with the treatment given to the first Plaintiff. In the supporting affidavit, no where it is indicated as to who was the Doctor who gave the ARV Injection in Government Hospital, Villupuram and who were the Doctors who treated the first Plaintiff between 31.3.1996 and 6.4.1996 in Government Hospital, Villupuram. After lapse of years, case sheets also may not be available in the hospital. In such circumstances, the Plaintiffs are not justified in seeking to implead the Chief Medical Officer and District Collector, Villupuram as Defendants to the suit.
17. Considering the over all facts and circumstances and facts, the learned Subordinate Judge has rightly dismissed the petition declining to implead the proposed parties. The impugned order is well in accordance with the provisions of facts of the case. The impugned order does not suffer from any infirmity or material irregularity warranting interference. This revision has no merits and is bound to fail.
18. For the reasons stated above, the order of the learned Subordinate Judge, Chidambaram passed in I.A. No. 129/2003 in O.S. No. 138/1997, is confirmed and this revision is dismissed. Consequently, CMP No. 16558/2003 is also dismissed. In the circumstances of the case, there is no order as to costs.
19. As the Suit is of the year 1997, the learned Subordinate Judge is directed to expedite the trial and dispose of the suit expeditiously.