Delhi High Court
Poonam Sharma vs Union Of India (Uoi) And Ors. on 30 September, 2002
Equivalent citations: I(2003)ACC194, 2004ACJ80, AIR2003DELHI50, 100(2002)DLT721, 2003(66)DRJ407, [2004(101)FLR165], AIR 2003 DELHI 50, (2002) 100 DLT 721, (2003) 1 TAC 296, (2003) 66 DRJ 407, (2003) 1 ACC 19, (2003) 1 PUN LR 37, (2004) 1 ACJ 80
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. The petitioner is heir and legal representative of one Vinod Kumar Sharma. He met with an accident on 10.12.1992 while allegedly driving in a drunken state. A First Information Report (in short, 'F.I.R.') was lodged on the basis of a telephone call, which is in the following terms :-
"D.D. No. 50B dt. 10.12.92, P.S. Rajouri Garden, New Delhi.
Arrival of telephonic information from P.P. MIG Flats and Departure.
Time, 8.10 P.M. Constable Santosh Kumar No. 1547/W gave an information from P.P. MIG Flats that on the main Najafgarh Road, in front of Shop of Maharaja Band, a two wheeler scooter has met with an accident. Police be sent. As per the procedure, the telephonic information was recorded in the Daily Dairy. Copy of the Daily Dairy has been handed over to S.I. Suhil Kumar who along with Constable Sumer Singh No. 1197/W left for the spot.
Duty Officer."
2. Thereafter the respondent No. 6 together with a Constable visited the site. The said respondent recorded statements of the witnesses whereupon he was taken in custody and sent for medical examination and/or treatment to Deen Dayal Upadhyay Hospital (in short, 'DDU Hospital'), as he suffered head injury and there was more than one inch cut in the head and he was bleeding.
From the report of the doctor, it appears that it was opined therein that the said Vinod Kumar Sharma was under the influence of alcohol and there was gait staggering and wound of one-inch size. The doctor stitched the wound and gave Brufen tablet. Thereafter he was arrested for commission of an offence under Section 185 of the Motor Vehicles Act, 1988 (in short, 'the said Act'). He at about 12.30 p.m. in the night complained of severe headache and was again taken to the same doctor. He was neither hospitalized nor was given any further treatment. Admittedly, in the morning, a cousin of the said Vinod Kumar Sharma visited the police station and obtained bail for him. At about 4.00 p.m. on the same day, as his condition deteriorated, he was again brought back to the DDU Hospital when X-Ray and CAT Scan were taken and thereafter he was referred to Ram Manohar Lohia Hospital (in short, 'RML Hospital'). It appears that before taking the deceased to the RML Hospital, he was taken to a private medical clinic, but when he was brought there he was declared dead.
3. Mr. J.P. Singh, the learned counsel appearing on behalf of the petitioner, would submit that the petitioner is entitled to compensation by way of a public law remedy not only having regard to the medical negligence of the doctors, but also having regard to the fact that the police authorities had also failed to discharge their statutory duties.
The learned counsel would contend that the deceased could not have been declared that he was driving in a drunken stage without making him undergo the medical tests prescribed therefore. It was pointed out that respondent No. 6 was statutorily obliged to follow the legal requirements as provided for in the said Act.
The deceased could not have been detained, the learned counsel would urge, for the period of more than 2 hours.
It is submitted that having regard to the purported findings arrived at that he was under the influence of alcohol, even the Employees' State Insurance Corporation has rejected the claim of the petitioner.
The learned counsel would submit that it was impossible for a person to drive 8 kilometres, especially if he was driving under intoxication. It is submitted that the legal representatives of the victim of a road accident cannot be denied just compensation on that ground.
According to the learned counsel, having regard to the legislative policy as contained in the said Act relating to hit and run cases, the petitioner was entitled to damages @ Rs. 5,76,00/- keeping in view the admitted fact that he was drawing a salary of Rs. 3,000/- per month and at the relevant time he was aged only 30 years.
The learned counsel would contend that the medical negligence on the part of the respondent would be evident from the report of the Committee, which was constituted for that purpose. The learned counsel, in this behalf, would rely upon Medical Negligence, Second Edition by Powers & Harris.
The learned counsel would urge that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India can award damages in a situation of this nature. In support of his plea, the learned counsel relied upon a large number of decisions, which are :-
Spring Meadows Hospital and Anr. v. Harjol Ahluwalia Through K.S. Ahluwalia and Anr. , (1998) 2 SCALE 456 ;
Thirath Ram Saini v. State of Punjab and Ors. , ;
D.K. Basu v. State of West Bengalui , ;
Nilabati Behera (Smt.) Alias Lalita v. State of Orissa and Ors. , ;
Rudul Sah v. State of Bihar and Anr. , ;
P.A. Narayanan v. Union of India and Ors. , ;
Smt. Darshan and Ors. v. Union of India and Ors. , ;
People's Union for Civil Liberties v. Union of India and Anr. , 1997 (1) SCALE 706;
Smt. Shyama Devi and Ors. v. National Capital Territory of Delhi and Ors. , ; and Dr. Tabassum Sultana and Ors. v. State of U.P. and Anr. , 1997 ACJ 1343;
4. Ms. Avnish Ahlawat, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that this Court in exercise of its jurisdiction under Article 226 of the Constitution of Indian cannot convert a writ proceeding into a suit for damages.
The learned counsel would submit that negligence was on the part of the family members of a deceased in apparent inasmuch as he was brought to the DDU Hospital at about 5.00 p.m. on 11.12.1992. At that point of time, it was found that there was no history of bleeding from nose, ears, throat, etc., and only there was a history of vomiting only once.
It was submitted that he was attended to by the doctor on- duty from Surgery Department, namely, Dr. Y.R. Handoo and it was found that he had altered sensorium, inappropriate speech, moving of four limbs on pain, not moving eyes spontaneously and system examination was normal, pulse was 86 per minute. Pupils size was normal and reacting to light. Hypoglycemia and head injury were two possibilities, on examination and they were kept in mind. Blood sugar and X-ray were immediately ordered and I.V. was given to excluse hypoglycemia. The blood sugar was 84 Mg. per cent. After the X-ray, he was shifted to emergency ward for observation and treatment. The wet X-ray film did not reveal any fracture and the absence of any fracture was confirmed by the Radiologist.
It was further submitted that during the course of observation, it was observed that level of consciousness was falling, though the pupils and blood pressure were within the limits, whereupon a CAT Scan was advised at about 7.00 p.m., otherwise clinically no abnormality was detected. The report of CAT Scan revealed left intracerepral haemorrage with ventricular shift. Thus, the immediate decision was taken to shift the patient to Nurological Centre of the RML Hospital.
It was further submitted that as per the procedure prescribed, any patient who is to be transferred to any other hospital he is taken in the DDU Hospital ambulance and a doctor accompanies him to the DDU Hospital where he is to be transferred and it is the duty of the doctor to hand over the patient to the transferred hospital.
The learned counsel would contend that the doctors in the said Hospitals provided the best medical treatment and as such this is not a case where this Court should grant any relief to the petitioner as prayed for. Our attention, in this connection, has been drawn to the report of Shri S.K. Jain, Assistant Commissioner of Police (Vigilance) and it was submitted that a bare perusal of the Enquiry Report would indicate that the petitioner never bothered to take the deceased from the police station to her home despite the fact that a telephone call was given.
The learned counsel further submitted that even Dr. S.K. Khanna, Professor, Department of Forensic Medicine has submitted a report wherein he had mentioned that nothing could have been done even if the patient was admitted when he was brought to the DDU Hospital for the second time. The learned counsel would submit that, in any event, this Court should not go into the aforementioned disputed question of fact. Reliance, in this connection, has been placed on R.M. Tiwari v. Col. Aditya Singh and Ors. , 1995 (1) CRIMES 648; and Haryana Urban Development Authority and Anr. v. Anupama Patnaik ,
5. The fact that an accident had occurred is neither in doubt nor in dispute. In a case of this nature where a person is said to have committed an offence under the provisions of the said Act by driving a vehicle in a drunken stage, certain statutory formalities are required to be complied with. The same are provided in Sections 185, 202, 203 and 204 of the said Act, the relevant portions whereof read thus:--
" 185. Driving by a drunken person or by a person under the influence of drugs. -- Whoever, while driving, or attempting to drive, a motor vehicle--,
(a) Has, in his blood, alcohol in any quantity, howsoever small the quantity may be, or
(b) Is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.
Explanation.-- For the purposes of this section the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle.
202. Power to arrest without warrant. -
(1) A police officer in uniform may arrest without warrant any person who in his presence commits an offence punishable under Section 184 or Section 185 or Section 197.
Provided that any person so arrested in connection with an offence punishable under Section 185 shall, within two hours of his arrest, be subjected to a medical examination referred to in Sections 203 and 204 by a registered medical practitioner failing which he shall be released from custody.
(2) A police officer in uniform may arrest without warrant any person, who has committed an offence under this Act, if such person refuses to give his name and address.
(3) A police officer arresting without warrant the driver of a motor vehicle shall if the circumstances so require take or cause to be taken any steps he may consider proper for the temporary disposal of the vehicle.
203. Breath tests. -
(1) A police officer in uniform or an officer of the Motor Vehicles Department, as may be authorised in this behalf by that Department, may require any person driving or attempting to drive a motor vehicle in a public place to provide one or more specimens of breath for breath for breath test there or nearby, if such police officer or officer has any reasonable cause to suspect him of having committed an offence under Section 185:
Provided that requirement for breath test shall be made (unless, it is made) as soon as reasonably practicable after the commission of such offence.
(2) If a motor vehicle is involved in an accident in a public place and a police officer in uniform has any reasonable cause to suspect that the person who was driving the motor vehicle at the time of the accident, had alcohol in his blood or that he was driving under the influence of a drug referred to in Section 185 he may require the person so driving the motor vehicle, to provide a specimen of his breath for a breath test:-
(a) In the case of a person who is at a hospital as an indoor patient, at the hospital,
(b) In the case of any other person, either at or near the place where the requirement is made, or, if the police officer thinks fit, at a police station specified by the police officer:
Provided that a person shall not be required to provide such a specimen while at a hospital as an indoor patient if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or objects to the provision of a specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient.
(3) If it appears to a police officer in uniform in consequence of a breath test carried out by him on any person under Sub-section (1) or Sub-section (2) that the device by means of which the test has been carried out indicates the presence of alcohol in the person's blood, the police officer may arrest that person without warrant except while that person is at a hospital as an indoor patient.
(4) If a person, required by a police officer under Sub-section (1) to Sub-section (2) to provide a specimen of breath for a breath test, refuses or fails to do so and the police officer has reasonable cause to suspect him of having alcohol in his blood, the police officer may arrest him without warrant except is at a hospital as an indoor patient.
(5) A person arrested under this Section shall while at a police station, be given an opportunity to provide a specimen of breath for a breath test there.
(6) The result of a breath test made in pursuance of the provisions of this section shall be admissible in evidence.
Explanation.--For the purposes of this section, "breath test", means a test for the purpose of obtaining an indication of the presence of alcohol in a person's blood carried out on one or more specimens of breath provided by that person, by means of a device of a type approved by the Central Government, by notification in the Official Gazette, for the purpose of such a test.
204. Laboratory test. -
(1) A person, who has been arrested under Section 203 may, while at a police station, be required by a police officer to provide to such registered medical practitioner as may be produced by such police officer, a specimen of his blood for a laboratory test if,
(a) It appears to the police officer that the device, by means of which breath test was taken in relation to such person, indicates the presence of alcohol in the blood of such person, or
(b) Such person, when given the opportunity to submit to a breath test, has refused, omitted or failed to do so:
Provided that where the person required to provide such specimen is a female and the registered medical practitioner produced by such police officer is a male medical practitioner, the specimen shall be taken only in the presence of a female, whether a medical practitioner or not.
(2) A person while at a hospital as an indoor patient may be required by police officer to provide at the hospital a specimen of his blood for a laboratory test:-
(a) If it appears to the police officer that the device by means of which test is carried out in relation to the breath of such person indicates the presence of alcohol in the blood of such person, or
(b) If the person having been required, whether at the hospital or elsewhere, to provide a specimen of breath for a breath test, has refused, omitted or failed to do so and a police officer has reasonable cause to suspect him of having alcohol in his blood:
Provided that a person shall not be required to provide a specimen of his blood for a laboratory test under this sub-section if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or object to the provision of such specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient.
(3) The result of a laboratory test made in pursuance of this section shall be admissible in evidence.
Explanation.--For the purposes of this section, "laboratory test" means the analysis of a specimen of blood made at a laboratory established, maintained or recognized or a State Government."
6. It is not in dispute that the aforementioned requirements of law had not been complied with. The respondent No.6, the doctor and others arrived at the conclusion that the deceased was driving in a drunken stage only because he was smelling alcohol and no test requisite therefore was conducted. Even no breath test was taken. Such tests were required to be conducted within the period of 2 hours. It is also not in dispute that the deceased was sent to the C.M.O. of the DDU Hospital by respondent No.6 with the following note:-
"D.D. No. 50B dt. 10.12.92, P.S. Rajouri Garden, New Delhi.
To The C.M.O. D.D.U. Hospital, New Delhi.
Sir, It is submitted that Vinod Sharma S/O Banwari Dass R/O RZB-52, Anoop Nagar, Jeevan Park has sustained injury on the back side of head while he fell down from his Scooter while driving in a drunken State. Your are requested to kindly examine him medically and opine. He is being send along with Ct. Sumer Singh 1197/W. Sd/-
(Sushil Kumar) S.I. P.S. Rajouri Garden.
10.12.92"
7. The injury Sheet dated 11.12.1992 reads thus:-
"D.D. No. 65B dt. 11.12.92, P.S. Rajouri Garden, New Delhi.
Injury Sheet In connection with the Govt. Duty, it is submitted that accused Vinod Kumar S/o Banarsi Dass R/O RZB-52, Anoop Nagar, Jundal Park, Uttam Nagar, Delhi who was arrested Under Section 185 Motor Vehicle Act is in the lock-up and is being sent for treatment to Din Dayal Uppadhaya Hospital under Custody of Constable Sumer Singh 1197/W who has suddenly developed problem. The medical report in respect of him be given, who was opined earlier to be under the influence of liquor with simple Blunt Injury against MLC No. E-90372.
Sd/-
Manage Ram, Duty Officer P.S. Rajouri Garden, 11.12.92."
8. It is also not in dispute that the doctor of the Hospital diagnosed that there was a cut on the scalp nearly one inch size. The cut was stitched and Brufen was administered to the deceased. He thereafter again was taken to the lock up in the police station. The police authorities again when you victim complained of severe headache sent him to the DDU Hospital for the second time. What type of treatment was given to the victim will appear from the report of the Enquiry Committee, which is as follows:-
"Patient visited second time in the DDU Hospital with complaint of service headache. The Doctors on duty on 10.12.92. night (9 P.M. to 9 A.M.), Dr. A.K. Mongia, in charge Casualty denied having seen the patient as per his statement (Annexure II) and there is no entry about the patient's visit on the page (OPD Card) where MLC was recorded (MLC No. E9072 on first page). On questioning further, Dr. Mongia admitted that he has seen the patient and patient have not new development and prescribed same treatment."
9. It is, therefore, evident that had the deceased been given proper treatment his life could have been saved. It is really a matter of surprise that even before the said Enquiry Committee, which was headed by three eminent doctors, all the requisite documents had not been produced.
On the other hand, the report of Dr. S.K. Khanna was filed in this Court after filing of this Writ petition. He evidently tried to shield the doctors of the DDU Hospital. The said report of Dr. Khanna does not inspire confidence. It is really a matter of great regret that even a doctor of his stature without trying to find out as to what extent due care and caution had not been taken in the matter of administration of medical treatment to the deceased tried to find fault with the patient and his relatives. If despite X-ray and despite his physical appearance he was treated to be normal even according to the doctors, it is not expected from his family members to think otherwise.
The said report is also contrary to the authorities on the subject.
10. We may also notice Section 53 and 54 of the Criminal Procedure Code, which read thus:-
"53. Examination of accused by medical practitioner at the request of police officer. -
(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonable necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
Examination.--In this section and in Section 53, "registered medical practitioner" means a medical practitioner who possesses any recognized medical qualification as defined in Clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register.
54. Examination of arrested person by medical practitioner at the request of the arrested person. -- When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice."
11. In Medical Negligence, Second Edition by Powers & Harris , on heard injuries, it has been stated:-
"26.2. It is not surprising that from the enormous numbers of patients who are seen in Accident and Emergency departments and admitted to hospital following head injuries a certain number of claims of negligence should arise. Each year between 200 and 300 per 100,000 of the population are admitted to hospital because of head injury (Anderson and Mclaurin 1980; (Jennett and McMillan 1981), i.e. something between 100,000 and 150,000 Four to five times that number of patients are seen in Accident and Emergency departments (Jennet and Teasdale 1981), a figure of about 500,000. Most of the patients admitted to hospital (85 per cent) will have suffered a mild head injury, with a short period of unconsciousness, and on admission will be talking and obeying commands (Miller and Jones 1985). A small proportion (5 percent have suffered a severe injury and are unconscious at the time of admission to hospital. About half of these patients will develop intracranial haematomas or acute brain swelling which will require operative decompression (Miller et al 1981). Clearly, selection of patients must be made in the Accident and Emergency Department for admission to the ward. In this large number of patients the possibility of error is increased by relatively small number who may need specialized surgical treatment very rapidly.
26.4. In order to assist casualty' officers and other junior staff in Accident and Emergency Departments with these decisions a group of neurosurgeons met in 1984 and produced a set of guidelines (British Medical Journal 1984.). These guidelines have been used as a basis for instructions given by Regional Neurosurgical units to their colleagues in District Hospitals, in an attempt to prevent avoidable mortality and morbidity.
Criteria for skull X-ray after recent head injury Clinical judgment is necessary but the following criteria are helpful:
(1) Loss of consciousness or amnesia at any time.
(2) Neurological symptoms or signs (including headache/vomiting).
(3) Cerebrospinal fluid or blood from the nose or ear.
(4) Suspected penetrating injury.
(5) Scalp bruising or deep laceration (to bone).
(6) Difficultly in assessing the patient (i.e. alcohol intoxication, epilepsy, children).
Criteria for admission of adults to hospital (1) Confusion or any other depression of the level of consciousness at the time of examination.
(2) Skull fracture.
(3) Neurological symptoms or signs.
(4) Difficulty in assessing the patient, eg. Alcohol, epilepsy.
(5) Other medical conditions, eg. haemophilia.
(6) Lack of a responsible adult to supervise the patient, or other social problems.
Brief amnesia after trauma with full recovery is not sufficient indication for admission.
Relatives or friends of patients sent home should receive written advice about charges that would require the patient to be returned urgently to hospital.
Criteria for consultation with the neurosurgical unit about patients with recent head injury (1) Fractured skull with any of the following : confusion or more impairment of consciousness, one or more epileptic fits or any other neurological symptoms or sings.
(2) Coma continuing after resuscitation even if no skull fracture.
(3) Deterioration in level of consciousness.
(4) Confusion or other neurological disturbance persisting for more than eight hours, even if there is no skull fracture.
(5) Depressed fracture of the skull vault.
(6) Suspected fracture of the base of the skull (CSF rhinorrhoea or otorrhoea, bilateral orbital haematoma, mastoid haematoma or evidence of a penetrating type of injury such as a spike or gunshot.) 26.6. A young man and his male companion had taken a great deal of drink during the course of an evening. While walking home he tried to jump over a wall and fell heavily on the other side striking his head and apparently losing consciousness for a short time and suffering a laceration of his scalp. He was then able to walk to the Casualty department of a nearby hospital supported by his friend. The department was busy and the friend was abusive to the sister in charge and said that if they had to wait any longer they would leave. Eventually a hard-pressed house surgeon sutured the scalp laceration and does not appear to have regarded the man's condition as being due to anything other than alcohol. His friend took him home but they were given no instructions, so he said, or any card indicating that he should be returned to the hospital if his condition deteriorated. His wife was evidently accustomed to him returning in a drunken state and put him to bed. During the night he vomited and then became unrousable and eventually towards noon of the next day he was seen by a general practitioner and returned to the hospital. Two hours later a large extradural haematoma was evacuated by the general surgeon on call for emergencies, as the hospital was a considerable distance from a neurosurgical centre. The patient never recovered consciousness and died a week later. The case was settled for a considerable amount on the ground that no attempt had been made to persuade the patient to stay in hospital and no instructions had been given about measures to be taken if his condition deteriorated. Following the altercation with the nursing staff when they first arrived at the hospital the friend seems to have been excluded when the deceased was seen by the doctor. This was serious error on the part of the staff as the doctor's attitude to the patient would have been quite different if he had had some details of the accident when he struck his head. As it was it appears that the doctor was under the impresion that the man was drunk and had suffered only a trivial laceration of the scalp. However, it was his duty to discover all he could about the circumstances of the accident and he failed to do this.
26.7. Of the very large numbers of patients with head injuries seen in Accident and Emergency departments the great majority as previously indicated recover without treatment, although they may suffer post-traumatic syndromes of various types which are not our present interest. Of the severe head injuries between 40 and 50 per cent die, mostly within the first 24 hours. The interest in the progressive intracranial haematomas -- the extradural haematomas - is that the initial brain injury may be insignificant just as the injury itself may be relatively minor. If the development of the haematoma can be recognized early the patient can make a satisfactory recovery. Delay leads to increasing cerebral compression and eventually to irreversible brain damage (Valtonen and Jennett 1977). ....."
The matter was to be considered by the doctors from this angle.
12. Negligence is not susceptible to any precise definition. It is a careless conduct, although there may not be any duty to take care. Negligence also refers to a breach of legal duty to take care.
In Lochgelly Iron and Coal Co. v. M. Mullan , (1934) AC 1 Lord Wright points out, "Negligence means more than heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing".
The essential components of negligence are as follows:-
(a) the existence of a duty to take care, which is owed by the defendant to the complainant;
(b) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
(c) damage which is both casually connected with such breach and recognised by the law, has been occasioned to the complainant.
In Winfield and Jalowicz on tort (13th Ed.) by W.V. H. Rogers at p. 3 , it is stated:-
"tortious liability arises from breach of a duty primarily fixed by law, this duty is towards persons generally and its breach is redressible by an action for unliquidated damages".
In Grant v. Australian Knitting Mills Ltd. , (1936) AC 85 Lord Wright while illustrating the need for existence of duty of care stated:-
"All that is necessary to a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care to be deducted. It is, however, essential in English law that the duty should injured by another's act gives in itself no cause of action if the act is intentional, so long as the other party is merely exercising a legal right; if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists."
13. In a case of head injury, it is elementary that an extra care is required to be taken. Such extra care is required to be taken, particularly in the medico-legal cases. In a medico- legal case, the doctors as also the police authorities are under statutory obligation not only to see that injuries suffered by a person who has been brought to the hospital be properly taken care of. Every doctor at the government hospital having regard to the paramount importance of preservation of human life is statutory obliged to extend his services with due expertise.
14. We may also notice that whenever a member of the medical profession is approached and if he finds that whatever assistance he could give is not sufficient to save the life of the patient, but some better assistance is necessary, it is the duty of the medical man so approached to provide primary medical aid to the patient and then to refer the patient to the hospital where the expertise facilities required for the treatment are available. The practice of the doctors and certain government institutions to refuse even the primary medical aid to the patient and referring them to other hospitals simply because they are medico-legal cases is depreciated by the Apex Court. ( See Pt. Parmanand Katara v. Union of India and Ors. , ).
15. The test of reasonable care is to be judged by the skilled man exercising and professing to have that special skill ( See Bolam v. Friern Hospital Management Committee , (1957) 2 All ER 118). The said test is applicable also to the hospital authorities. The Government as also the hospital authorities are bound to provide professional, qualified, competent and special skilled staff for a unit.
16. In the instant case, it has been shown that few basic requirement of taking X-ray or CAT Scan had not been complied with. If a Radiologist was not available which even according to the Committee should have been available 24 hours a day at the said Hospital, the patient should have been referred to some other hospital then and there. The person suffering from head injuries are entitled to receive skilled treatment in view of the medical authorities, as noticed hereinbefore.
17. It is not a case where an error had occurred in clinical judgment. With a few hours, the patient was brought back complaining severe headache. Despite that no further treatment was given and he again was asked to take Brufen only.
As noticed from the Report of the Committee, even the Doctor tried to suppress the fact that he had been approached, but on repeated questioning he accepted the said fact.
In a situation of this nature, in our opinion, it may not be correct to contend that this Court has no jurisdiction in a writ proceeding to look into the grievance of the petitioner and to grant her appropriate relief.
18. However, the matter now stands concluded by the decisions of the Apex Court in Chairman, Railway Board and Ors. v. Chandrima Das (Mrs.) and Ors., (2002) 2 SCC 465; and Tamil Nadu Electricity Board v. Sumathi and Ors.,
19. In Chairman, Railway Board's case (Supra) , the Apex Court laid down the parameters for grant of a compensation by way of public law remedies.
20. In Tamil Nadu Electricity Board's case (Supra) , the Apex Court held that where there is negligence on the face of the matter and the body or authority concerned was exercising power in discharge of a public duty and there has been a violation of Article 21 of the Constitution of India, there would be no bar to proceeding under Article 226 of the Constitution of India.
21. A citizen of India is entitled to preservation of his life not only at the hands of the police authorities, but also at the hands of the public authorities, which would include hospital authorities having regard to the extended scope of Article 21 of the Constitution of India.
22. In M/s. Spring Meadows Hospital's case (Supra) , the doctrine of Resipsa loquitur was applied holding:-
"9.... Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonably skill of a competent doctor."
10. ... Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of Resipsa loquitur can be applied."
23. In Thirath Ram Saini' case (Supra) , in a case of illegal confinement, compensation was granted.
24. In D.K. Basu's case (Supra) , the Apex Court held that when there is a violation of human rights or principles underlining Article 21 of the Constitution, compensation can be granted. It laid down the guidelines as regard rights of an accused and/or prisoner. In the instant case also, the said guidelines have not been followed. The rights of the deceased were not safeguarded. Having regard to the fact and circumstances of this case, he could have been released on personal bond, particularly when he was injured. He was entitled to be released within two hours if the tests specified under the Act had not been taken. There is nothing on record to show that any inspection memo was prepared and the major or minor injuries had been recorded, which was signed by the arrestee and the police officer keeping the arrestee. There is also nothing on record to show that copy of the same was provided to the arrestee. In D.K. Basu's case (Supra) , it was held:-
"38. The requirements, referred to above flow from Article 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.
As regards claim for compensation in public law, the law has been laid down in the following terms:-
"44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalizing the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen".
25. In Nilabati Behera's case (Supra) , which has been relied upon in D.K. Basu's case (Supra) , the Apex Court in no uncertain terms held that prisoners and under-trials have also right under Article 21 of the Constitution of India. It was observed:-
"In view of the decisions of this Court in Rudul Sah v. State of Bihar , , Sebastian M. Hongray v. Union of India, , Sebastian M. Hongray v. Union of India, (1984) 3 SCC 82 : 1984 SCC (Cri) 407 : (1984) 3 SCR 544 (II), Bhim Singh v. State of J&K, 1984 Supp. SCC 504 : 1985 SCC (Cri) 60, Bhim Singh v. State of J&K, , Saheli:
A Women's Resources Centre v. Commissioner of Police, Delhi Police Headquarters, and State of Maharashtra v. Ravikant S. Patil, the liability of the State of Orissa in the present case to pay the compensation cannot be doubted and was rightly not disputed by the learned Additional Solicitor General. It would, however, be appropriate to spell out, clearly the principle on which the liability of the State arise in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightaway that award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defense in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind, which also indicates the basis on which compensation is awarded in such proceedings.
We shall now refer to the earlier decision of this Court as well as some other decisions before further discussion of this principle."
26. In P.A. Narayanan's case (Supra) , compensation was directed to be granted when loss of life arose due to dereliction of duty by government servant.
27. The doctrine of Resipsa loquitur was also applied by a Division Bench of this Court in Smt Darshan's case (Supra) in the following terms:-
"9. It deprived him of his fundamental right under Article 21 of the Constitution of India. The scope and ambit of Article 21 wide and far reaching. It would, undoubtedly, cover a case where the State or its instrumentality failed to discharge its duty of care cast upon it, resulting in deprivation of life or limb of a person. Accordingly, Article 21 of the Constitution is attracted and the petitioners are entitled to invoke Article 226 to claim monetary compensation as such a remedy is available in public law, based on strict liability for breach of fundamental rights."
28. Yet again in People's Union for Civil Liberties's case (Supra) , B.P. Jeevan Reddy, J., referring to D.K. Basu's case (Supra) and other cases held that in such matters international covenant of civil and political rights should be read in our statues.
29. This Court in Smt. Shyama Devi's case (Supra) granted compensation holding:-
"5. In the instant case the heavy duty of clearly upon the State since an explosive device was kept in the malkhana. As the device was not defused this duty of care was clearly breached by the State and its concerned officials. In such like cases the Courts expects strict and high standard of care form them. When there is a failure to perform duty which results in physical injury, deprivation of life or loss of property, Article 21 of the Constitution is attracted and the aggrieved party is entitled to invoke Article 226 to claim monetary or pecuniary compensation as such a remedy is available in public law based on strict liability for breach of fundamental right. As held in Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors. , acts as a shield against deprivation of life or personal liberty. Personal liberty and life have to be given emplaned meaning. Though Article 21 is couched in negative terms, it also has a positive content. It contains a person's right to life and liberty. Concepts of life and liberty were purposely not defined in the Constitution so that expanded meaning could be given in accordance with the march of time. Dereliction of duty on the part of the servants of the State resulting in loss of precious life would amount to violation of Article 21 of the Constitution and the State will be vicariously liable for their acts. In P.A. narayanan v. Union of India and Ors. , , the Supreme Court in an appeal arising from a writ petition held that dereliction of duty which results in loss of life renders the guarantee under Article 21 of the Constitution illusory. In that case the wife of the appellant lost her life while traveling in the first class railway compartment at the hands of dacoits. It was found that the incident exhibited negligence of the Railway employees in the performance of their duties. The Supreme Court in the circumstances of that case, asked the Railways to pay a sum of Rs. 2 lakhs as compensation to the appellant for the death of his wife. Therefore, it is too late in the day to contend that compensation for the tortuous acts of the functionaries and servants of the State cannot be awarded in a writ petition. The myth was convincingly exploded in Nilabati Behera (Smt) @ Lalita Behera (through the Supreme Court Legal Aid Committee) v. State and Ors. , , which was based upon the principles laid down in Bhagalpur Blinding cases: Khatri (II) v. State of Bihar , (1981) FSCC 627; Khatri (IV) v. State of Bihar, ; and Union Carbid Corpn. v. Union of India, . In Nilabati Behera's case (supra) the Supreme Court held that in a case of violation of fundamental rights by the State and its instrumentalities or servants the Court can direct the State to pay monetary or pecuniary compensation to the victim. It also held that the principle of a sovereign immunity was inapplicable in such cases; a proceedings under Article 32 of 226 of the Constitution for award of compensation is a public law remedy as distinct from private law remedy; and the aggrieved party cannot be relegated to a civil suit. The observations of the Supreme Court in this regard are as follows:
"Advertising to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortuous act of the State as that remedy in private law indeed in available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the Courts exercising writ jurisdiction. The primary source of the pubic law proceedings stem from the prerogative writs and the Courts have, therefore, to evolve 'new tools' to give relief in public law by moulding it according to the according to the situation with a view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in 1249 under the title 'Freedom under the law' Lord Denning in his own style warned:
'No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom ....preventing the abuse of power it not. Just as the pick and shovel is no longer suitable for the winning a coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to-date machinery, by declarations, injunctions and actions for negligence. This is not the task of Parliament, the Court must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country."
30. In Dr. Tabassum Sultan's case (Supra) , when a woman was forcibly operated on tubectomy under Government sponsored scheme, it was held that she was entitled to compensation for violation of right under Article 21 of the Constitution of India.
31. In Smt. Charanjit Kaur v. Union of India and Ors., the Apex Court while observing that the petitioner's husband died while in service in mysterious circumstances and his death is attributable to and aggravated by the military service and the responsibility of his death was prima facie traceable to the act of criminal omissions and commissions on the part of the concerned authorities, it was held that the petitioner is entitled to suitable compensation.
32. As the expression 'Life or Personal Liberty' includes the Right to Live with Human Dignity, ever arrest would mean infringement of life and liberty of any citizen and, thus, would include within itself guarantees against torture or custodial violence meted out against any arrestee, any assaults by State or its functionaries, thenceforth any custodial detention would amount to deprivation of life and liberty of a person or any citizen. Where the life and liberty of any or every citizen has/have been violated, each and every citizen is or are entitled to monetary compensation under Public Law for violation of Fundamental Rights and in addition to claims or reliefs available under the law of the country.
33. In Haryana Urban Development Authority's case (Supra) , upon which Ms.Ahlawat relied upon, the Apex Court was not dealing with claim of compensation by way of a public law remedy where Fundamental Right under Article 21 was violated. In that case, the claim was a simple claim for money wherein several disputed questions of fact were involved. Each party was alleging that the other party was guilty in the violation of allotment and the matter was not covered under Statutory position and in that situation, it was held that a writ petition was not maintainable.
34. In R.M. Tiwari's case (Supra) , a claim for compensation was made where the dispute was a private one. It was observed:-
"8. ...This is a disputed question of fact which can be adjudicated upon by holding a regular trial. In the instant case, the foundation of the alleged house trespass is the doing of an illegal act, forcibly and without legal authority, as against the property of the petitioner. The alleged illegality and t he wrongfulness of the acts must be established by proof."
It was held that factum of mala fide in a case of that nature could not be said to have been established. It was observed that the petitioners claim of compensation is factually controversial in the sense that a Civil Court may or may not uphold his case.
In the aforementioned situation, it was observed that the affidavits filed could not be treated to be evidence and appreciated.
The said decision, therefore, will have no application in the instant case.
35. Keeping in view the facts and circumstances of this case, we are of the opinion that it is a fit case where the petitioner has been able to establish that there has been a violation of the deceased's Fundamental Right under Article 21 of the Constitution of India and, thus, damages in public law remedy can be awarded.
Having regard to the facts and circumstances of this case, we are of the opinion that the respondent should pay a sum of Rs. 2 lacs to the petitioner herein with the liberty to her to file an appropriate suit for damages, if she is so advised.
This writ petition is allowed to the aforementioned extent. The respondent should also bear the cost of this writ petition, which is quantified at Rs. 5,000/-.