Himachal Pradesh High Court
State Of H.P. And Others vs Dinesh Chauhan And Others on 29 March, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
R.F.A. No. 5 of 2005.
Reserved on : 19.3.2018 Date of decision: 29.03.2018.
State of H.P. and others ...Appellants
Versus
Dinesh Chauhan and others. ...Respondents.
______________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 Yes For the appellants : Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Addl. Advocate Generals, with Mr. Bhupinder Thakur, Deputy Advocate General.
For the respondents : Mr. Raman Sethi, Advocate, for respondent No.1.
Mr. R.K. Bawa, Senior Advocate, with Mr. Ajay Kumar Sharma, Advocate, for respondent No.2.
Respondent No.3 already exparte.
Tarlok Singh Chauhan, Judge The State has filed this first appeal against the judgment and decree dated 5.1.2001 passed by learned District Judge, Solan (for short 'trial Court') in Civil Suit No. 8/1 of 1997 whereby it awarded an amount of `2,25,000/- as damages to the plaintiff/respondent No.1 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 2 on account of death of Sandhya and on the principle of vicarious .
liability this amount was directed to be paid by the appellants.
2. Brief facts of the case as set out in the plaint are that Sandhya (deceased) was working as Instructor at Angan Bari Teachers Training Centre, Theog and her marriage was solemnized on 11.5.1995. Immediately after her marriage, she conceived pregnancy and since November, 1995 she was on medical leave. On 25.4.1996 she was admitted in District Hospital, Solan as an emergency case. Defendant No.6 Dr. R.P. Sahani was in the OPD and got her admitted as she was bleeding and labour pain had started. Dr.Sahani handed over the case to Dr. Kamlesh Sharma, defendant No.5, as it related to the department of Gynaecology. At about 6.30 it was realized that Gynaecologist i.e. Dr. Maya Ahuja, defendant No.4 being specialist should be called. As a result, she was sent for and came at 9.00 p.m. After examining the deceased, defendant No.4 allegedly left the hospital. According to the plaintiff, the condition of Smt. Sandhya deteriorated as the bleeding went on unabated. This caused anxious moments for PW-2 being her father.
He went to defendant No.4 at her residence and asked her to further examine the patient, but the defendant No.4 did not come to the hospital. According to the plaintiff, defendant No.4 only came at 9.00 a.m. on the following day i.e. 26.4.1996 and got ultrasound test of Smt. Sandhya conducted and in the said test it was found that fetus was dead and dead child was delivered. It was because of the profuse and continuous bleeding that the deceased ultimately had to refer to IGMC, Shimla, but even then the defendant No.4 commanded to retain the patient. The said defendant No.4 is alleged to have not ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 3 attended upon the patient properly and neglected to look after her .
according to the professional ethics.
3. It was further averred that from 9.00 p.m. on 25.4.1996 to 3.30 a.m. on 26.4.1996, the defendant No.4 left the patient to her own fate despite knowing her serious and deteriorating condition and it was on account of non-serious attitude of defendant No.4 towards the patient that she ultimately died. The plaintiff maintained that had the defendant No.4 being a Gynaecologist attended to the patient promptly and properly she would not have died. It was on these allegations that the plaintiff, who is the husband of the deceased, filed the suit for damages wherein the defendants No. 1 to 3 i.e. State of Himachal Pradesh, through Secretary (Health), Director Health and Chief Medical Officer, Solan, were impleaded as parties with the allegation that the said defendants were vicariously liable for the death of Sandhya.
4. The defendants No.1 to 3 filed joint written statement wherein it was averred that defendant No.4 was very much alive to the medical treatment of the deceased Sandhya and therefore, there was no lapse, laxity or misconduct on her part in rendering treatment to the deceased. It was further averred that despite giving best medical treatment, the deceased died due to post partum hemorrhage
5. The defendant No.4 Dr. Maya Ahuja filed a separate written statement wherein she averred that she never came to the hospital at 9.00 p.m. on 25.4.1996 as alleged and further denied having been given any treatment to the patient at that time. She further averred that first call given to her to attend upon the patient was at 2.45 a.m. on 26.4.1996 and she immediately came to the ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 4 hospital at 3.30 a.m. on the same date i.e. 26.4.1996 and examined, .
treated and ensured all possible medication to the patient. Defendant No.4 further maintained that she left the hospital at 5.00 p.m. on 25.4.1996 and resumed her duty on the following day i.e. 26.4.1996 at 9.00 a.m. According to her, it was defendant No.5 Dr. Kamlesh, who was on duty on the intervening night of 25th and 26th April, 1996 and, therefore, it was her duty to attend upon the patient on the intervening night. She further averred that right from 9.00 a.m. on 26.4.1996 she was in the OPD as she was on duty there to examine the patients. The condition of the patient at the time she left OPD was normal. She admitted that the blood group 'O negative', which was required to be transfused to Sandhya, was not available in the hospital. She further admitted that the patient was referred to IGMC, Shimla, but lateron could not be shifted because of deterioration in her health. Lastly, it was averred that defendant No.4 was not in any manner negligent or careless in rendering medical treatment to the deceased.
6. The defendants No. 5 and 6 filed their written statement wherein they supported the stand of defendant No.4.
7. On the pleadings of the parties, the learned trial Court framed the following issues:
1. Whether Smt. Sandhya wife of plaintiff died on 26.4.1996 in District Hospital, Solan due to the negligent conduct of defendant No.4 by not properly treating and attending Smt. Sandhya Devi, as alleged? OPP
2. If issue No.1 is proved, whether defendant No.4 committed breach of the duty in not attending Smt. Sandhya properly, as alleged? OPP ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 5
3. Whether Smt. Sandhya at the time of delivery died due to negligence of defendant No.4?OPP .
4. If issues No.1 to 3 are proved, whether the plaintiff is entitled to damages, if so, to what extent and from whom? OPP(Recast on 6.9.1999)
5. Whether legal and valid notice under Section 80 CPC has been served? OPP
6. Whether the suit is malicious and frivolous as alleged? OPD-4.
7. Whether the suit is not maintainable as alleged?
OPD-4.
8. Relief.
8. After recording the evidence and evaluating the same, the learned trial Court decreed the suit by awarding damages of `2,25,000/- and the said amount was held to be recoverable only from defendants No. 1 to 3.
9. It is in this backdrop that the defendant No.1 i.e. State of Himachal Pradesh has filed the instant appeal on the ground that the findings recorded by the learned trial Court are perverse and based upon surmises and conjectures and, therefore, deserves to be set-
aside. It is further argued by learned Additional Advocate General that the learned trial Court has not even considered the pleadings of the plaintiff which were wholly different and therefore could not be made basis for awarding compensation, more particularly, when it is settled law that when no amount of evidence for which there is no foundation led in the pleadings could be looked into by the trial Court.
10. On the other hand, Mr. Raman Sethi, Advocate assisted by Ms. Parminder Kaur, Advocate, would vehemently argue this is different case where res ipsa loquitur could have been applied as a ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 6 young lady has lost her life only on account of the sheer negligence of .
defendants No. 4 to 6, more particularly, defendant No.4 and, therefore, the judgment and decree as passed by learned trial Court needs to be upheld.
I have heard learned counsel for the parties and have gone through the records of the case carefully.
11. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right;
distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 7
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) .
PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was r reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 8 under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts .
found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
12. What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 9
13. What is 'perversity' recently came up for consideration before .
the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 10 facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there .
was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-
appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 11 assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the .
event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
'103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
r (a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30:
(S.R.Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of perversity."::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 12
14. Admittedly, this is a first appeal and the jurisdiction of this Court while .
hearing the same is very wide like the learned trial Court and it is open to the defendants to attack all findings on fact and/or on law in the first appeal and would have to be decided on the basis of following exposition of law as propounded by the Hon'ble Supreme Court in Shasidhar and others versus Ashwini Uma Mathad and another, (2015) 11 SCC 269, wherein it was observed as under:-
"10. The powers of the first appellate Court, while deciding the first appeal under Section 96 read with Order XLI Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra.
11. As far back in 1969, the learned Judge - V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, reminded the first appellate Court of its duty as to how the first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned judge held as under: (SCC OnLine Ker paras 1-3) "1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court.
3.Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation." (Emphasis supplied)
12. This Court in a number of cases while affirming and then reiterating the aforesaid principle has laid down the scope and ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 13 powers of the first appellate Court under Section 96 of the Code. We consider it apposite to refer to some of the decisions.
.
13. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, this Court held as under: (SCC pp. 188-89, para
15)
"15..........the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court......while reversing a r finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
The above view has been followed by a three-Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
14. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court stated as under: (SCC p. 244, para 3) "3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
15. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code this Court observed as follows: (SCC p.303, para 2) "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion........."
16. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words:(SCC pp. 530-31, paras 3-5) ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 14 "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees.
.
Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open r for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
17. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174. This Court has recently taken the same view on similar facts arising in Vinod Kumar vs. Gangadhar, 2014(12) Scale 171."
15. Adverting to the facts, it would be necessary to first refer to the pleadings in the suit. It is not in dispute that the suit has been filed on the basis of tortuous liability based on the plea of negligence of defendants No. 4 to 6, particularly, defendant No.4. It is more than settled that where ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 15 negligence or contributory negligence is charged, full details must be given .
of the acts on which the party pleading relies as constituting negligence.
(Refer:Prafulla Ranjan Sarkar vs. Hindusthan Building Society Ltd., AIR 1960 Calcutta 214).
16. Now, therefore, it would be necessary to advert to the pleadings of negligence set out in the suit. From a complete reading of the plaint, it would be noticed that the plea of negligence is contained in paras 3 and 4 of the plaint wherein it is stated that after admission of Sandhya in the hospital on 25.4.1996 at about 5.30 p.m. the doctor on duty told the parents of Sandhya that she will be attended upon by Gynaecologist /specialist and a person/official of District Hospital, solan was sent to call defendant No.4 to attend late Sandhya. However, the defendant No.4 only came to the hospital at about 9.00 p.m. and told the parents of Sandhya that she was normal and there was nothing to worry about it and accordingly Sandhya was shifted to maternity room as she was suffering from labour pains. After giving some instructions to nurses, defendant No.4 went to her residence and did not come back even on calling and in the meanwhile Sandhya's condition had become critical. The defendant No.4 was so carelessness and negligent in attending Sandhya that she only came on the next day and referred Sandhya for ultra sound which was conducted on 26.4.1996 at 9.30 a.m. and by that time her condition was all the more critical. After that Sandhya was again brought to maternity room where she delivered a dead child and her condition thereafter became serious and was referred to IGMC, Shimla.
However, before she could be taken to IGMC, Shimla, defendant No.4 had again taken her to the maternity ward and started her examination and in the meanwhile, she died in District Hospital, Solan on 26.4.1996. It is further alleged that Sandhya had died due to carelessness of defendant No.4 ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 16 because had she examined Sandhya well in time and given proper .
treatment, her life could have been saved. It is further averred that Sandhya had died due to breach of duty on the part of defendant No.4 as even despite emergency, defendant No.4 did not attend upon Sandhya, as a result whereof she died.
17. Now, adverting to the written statement filed by defendant No.4, it would be noticed that she has tried to controvert all allegations set out in the plaint. She admitted that Sandhya was admitted in the hospital on 25.4.1996 at about 6.30 p.m. and not 5.00 p.m. as was alleged by the plaintiff. It was further averred that when she was brought to the hospital, then Dr. R.P. Sahni was on duty, who admitted her to the hospital and recorded his note that Sandhya was pregnant and was a bleeding case and she was accordingly put under the care of Dr. Kamlesh Sharma, who started the treatment. This defendant denied having come to the hospital at 9.00 p.m. on 25.4.1996 and further allegation of the plaintiff that she told the parents of Sandhya and gave certain instructions, were totally denied by her.
Since her duty was off at 5.00 p.m. on 25.4.1996, she left the hospital to resume her duty on the next day i.e. 26.4.1996 at 9.00 a.m. However, in the intervening night of 25.4.1996 and 26.4.1996 at 2.45 a.m. Dr. Kamlesh Sharma recorded that the patient should be shown to Gynaecologist and it was then at 3.30 a.m. on 26.4.1996 that defendant No.4 was summoned from the residence and she immediately reached the hospital without any loss of time and advised treatment to the patient. The patient was given all possible medical treatment i.e. glucose through intravenous and blood transfusion and was given all other medicines available with the hospital that were required before and after delivery. She was also presented for ultra sound and the report was that fetus was dead. This ultra sound test was ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 17 done at about 9.00 a.m. on 26.4.1996 when the patient was quite normal .
and her condition was neither critical nor serious. It was then that defendant No.4 went to Out Door Patient (OPD) at 9.00 a.m. because her duty was there to examine out door patients and at that time the pulse condition of the patient was quite normal. Thereafter she remained under the care of Dr. Kamlesh Sharma, who was first on call duty. The consent of the present guardian i.e. father of Sandhya was taken as the plaintiff was not there to look after his wife and the father of Sandhya consented to the delivery by her daughter at any risk. Thus, it was with the consent of father of Sandhya that delivery took place and the same was normal. The parents of Sandhya had already been told previously that they should keep the blood ready which may be required after delivery as whatever blood was available in the hospital had been transfused to the patient. After delivery Sandhya suffered from postpartum haemorrhage and other complications, even then the mother and father of Sandhya could not make any arrangement of blood.
The death of Sandhya was the direct result of postpartum haemorrhage and for no other reasons and, therefore, there was no negligence on the part of defendant No.4. Since the postpartum haemorrhage trouble had arisen after the delivery, the parents of deceased who were there were told to take the patient to IGMC, Shimla, but she died of the above said trouble in the hospital. However, before that all necessary medical treatment was given by defendant No.4.
18. The plaintiff did not file any replication to the written statement of defendant No.4.
19. Now, adverting to the evidence led by the plaintiff. PW-1 Dinesh Chauhan, is the husband of deceased Sandhya, but admittedly he was not there in the hospital at the relevant time and, therefore, his statement being ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 18 based upon hear say is not admissible in evidence. However, the plaintiff .
has examined Bhagwan Singh as PW-2, who happens to be the father of deceased Sandhya, who had in fact got her admitted in the hospital.
20. PW-2 deposed that his daughter had been admitted by Dr. Sahani and at that time she remained normal for some time, however, thereafter her condition deteriorated because of profuse bleeding. After that he was informed in the hospital that there is a lady doctor specialist and she would be coming at 9 O'clock. She came and assured him that Sandhya's condition would be all right and thereafter she left. He thereafter tried to contact her over telephone but could not do so and was informed that she would be available only in the morning and he was asked to arrange for two bottles of blood. Defendant No.4 came at 9.30 a.m. and ordered for an ultra sound. After that the treatment continued and at about 12 O'clock his daughter Sandhya was ordered to be referred to Shimla, but when he consulted Gynaecologist i.e. defendant No.4 she refused to refer her and in between 12.30 - 1.00 p.m. Sandhya died. In case defendant No.4 would have referred Sandhya at night, then hopefully his daughter Sandhya would have survived.
21. In cross-examination by defendants No. 1, 3, 5 and 6, the witness stated that on 26.4.1996 by 10.00 a.m. he was convinced that medical treatment being given to his daughter was not proper, however, he did not deem it proper to make a complaint to the CMO as he was not permitted to go inside nor the situation was appropriate for doing so. He did not know whether the patient had been given all of blood by that time, which they had arranged for, or not. He denied that the doctor had asked him to arrange for more blood. He stated that he discussed with my son-in-law about the statement which was required to be given to the Court. He had ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 19 accompanied his son-in-law and narrated the entire incident to the lawyer.
.
He admitted that the glucose had been administered to his daughter, but specifically stated that blood had not been transfused. One boy had donated blood in the hospital in his presence and his name was duly entered in the records. He denied the suggestion that excessive bleeding led to the death of his daughter as he could not arrange for the blood. He further denied the suggestion that the treatment as given by the doctor was right and proper and stated that his daughter died due to the negligence on the part of the doctor.
22. In cross-examination by defendant No.4, this witness stated that he had filed a written complaint to the CMO about the negligence on her part that had led to the death of his daughter. He did not consider it necessary to have the post mortem conducted. He further stated that when the complaint was moved to the CMO, he had assured that the inquiry would be got conducted, but he was not associated in the inquiry. He did not complain against Maya Ahuja i.e. defendant No.4 and stated that he had gone to call her twice i.e. at 4.00 p.m. and 7.00 a.m. on 26.4.1996. Her residence was below the Co-operative office. He stated that he did not know about the condition of child when the ultra sound was conducted. He denied the suggestion that defendant No. 4 was present there from 4 O'clock to 9 O'clock. Volunteered to state that she had come at 9.30 and Dr. Kamlesh had given treatment in her absence. At 7.00 a.m. defendant No. 4 informed him to arrange for blood. He went to Kandaghat at 8 O'clock and brought along a boy for donating blood, but could not re-collect his name. He had met the boy at 8.30 a.m. and both of them had come back by taxi, but he did not remember the registration number of the taxi. He had hired the taxi from Solan and paid Rs.400/- for to and fro journey. He met the boy in the Bazaar ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 20 at Kandaghat and boy's father was a lawyer. He did not remember the name .
of boy or his father. He had never visited their residence, rather he stated that he knew the name of the boy at that time but by now, he had forgotten it. He denied the suggestion that Sandhya did not die of negligence or mistake on the part of the doctors, but admitted the suggestion that death was caused due to postpartum haemorrhage.
23. Now adverting to the evidence of the defendants. Dr. H.K. Premi, Professor of Obstetrics and Gynaecology, IGMC, Shimla was examined as DW-1 by defendant No.4, who in his examination-in-chief stated that he was Professor of Obsteritics and Gynaecology for the last three months. According to him, haemorrhage during pregnancy is responsible for 25 to 60% of maternal deaths occurring during pregnancy and labour and out of this post partum haemorrhage (Atonic) type is the most common. This type of haemorrhage is leading cause of maternal mortality in India as well as in our State. He stated that he had examined the records of the present case that was presented to him and on the basis of such record, he was of the opinion that fetal death in this case must have occurred because of retroplacental clot formation alongwith separation of the placenta. This type of haemorrhage to cause foetus death should be to the tune of 2.5 litres or more and or 1/3rd of the placenta should have separated to produce the death of the foetus and this retroplacental haemorrhage in turn can explain the post partum haemorrhage (Atonic) which the patient had and which eventually resulted in a death. According to him, such a massive haemorrhage it is mandatory first to replace the fluids in the form of ringers lacted, normal saline, dextro saline to maintain the renal and cerebral perfusion. Blood has to be given after the cessation of the bleeding to improve the oxygen carrying capacity of the patient. But transfusing the ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 21 patient while she is profusely bleeding will be a futile exercise. He further .
stated that when the patient is in the state of labour pain and shock and further bleeding profusely in a particular hospital while under the treatment of a Gynaecologist, it is not advisable to refer her to any institution having advanced or better medical facilities. The blood group O negative is highly scarce and rarely available.
24. On being cross-examined by defendants No. 1 to 3, 5 and 6, he categorically admitted that after going through the records that was made available to him, he was of the opinion that the death of Sandhya occurred not because of any negligence or lapse on the part of the doctor or the mode of treatment adopted by them and further stated that in India, the major reason for such haemorrhage and the consequential death is the anemic state with which the patient actually suffered. The anemic pregnancy in India is 40 to 90%. The routine antenatal check up by the Gynaecologist avoids such like complications and consequential deaths occurring thereof.
25. In cross-examination by the plaintiff, the witness categorically admitted that he had not seen the original record of the patient i.e. Sandhya deceased and the same were not brought before him. At that stage the Court deferred the statement of this witness and on being re-called, specifically stated that he had not been asked by the Civil Hospital to give any opinion and further no record has been made available to him.
26. DW-2 H.B. Kashyap, Chief Pharmacist, D.H.Solan, only produced the record as was sought for.
27. Defendant No.4 Maya Ahuja appeared as DW-3, stated that she had been working in Civil Hospital, Solan as Gynae Specialist for a period of five years and had during this period conducted more than 1000 cases of delivery. Before that she had been working as Registrar in George Medical ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 22 College, Lucknow. She had seen the original file regarding Sandhya serial .
No. 1252 of Civil Hospital, Solan, who according to her was admitted in the hospital by Medical Officer on duty Dr. Sahani on 25.4.1996 at 6.30 p.m. After admission, she was being treated by Dr. Kamlesh Sharma, who was on duty for that day. On the next day i.e. 26.4.1996 at 2.45 a.m. Dr. Kamlesh Sharma had called her to give special opinion regarding the said patient, upon which she immediately rushed to the spot within 15-20 minutes. On reaching the hospital, she examined the patient and on the basis of physical findings concluded that the patient was in labour pains. The condition of the foetus was not made out by the physical finding so the treatment was given to enhance the labour and even ultra sound was advised. The condition of the patient and foetus was explained to the attendant and risk involved was also explained in details and signatures taken. She proved Ext. DA, Ext.DB and Ext.DC which were the opinion and advice given by her. She further stated that ultra sound test was not available even in emergency during the night time. She advised the ultra sound examination of the patient which was conducted at 10 .00 a.m. on 26.4.1996. On receipt of the ultra sound report, it was revealed that the foetus was dead and there was a retroplacental clot that was present. As the case was of a serious nature and therefore, as a precautionary measure, she got the consent of the father of the deceased on form Ext.DD. On such consent being given, further treatment was carried out. At 12.30 p.m., she asked the attendants of the deceased to arrange blood which was of O negative which is rarely available and was not available in the hospital at the relevant time. The statement of the mother of the deceased Ext.DE was taken which was in her own hand and duly signed by her in her presence whereby she expressed her inability to arrange for the blood at that time. The patient delivered a dead male foetus at 12.45 ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 23 p.m., the placenta deliver was normal. However, the uterus was filled with .
clots and the patient was having severe post partum haemorrhage but the bleeding could not be controlled and bimanual uterine massage was done, bitadine pack was put in the uterus to control the bleeding. Injection methergin 4-5 AMP and injection prostidin two Amp. was given. Intera venous lomodex was running and one unit of blood was also run. Despite all these measures, patient could not be revived. This treatment was given vide Ext.DF. According to this witness, this was the best and maximum possible treatment that could be given by her to the patient. One unit of blood was supplied at 12. P.m. by the Blood Bank of Civil Hospital. The witness reiterated that the attendants of the patient could not make available the blood despite having been asked to arrange the same in advance. She further stated that the father of the deceased never brought any person to her for blood donation and further stated that 20-60 percent of patient of maternal death are due to the post partum haemorrhage. She stated that ultra sound revealed that there was retroplacental clot formation and death of the foetus. To cause the death of foetus the size of retroplacental must have been of substantial size i.e. loss of 1-2 litres of blood in the uterus and this blood in the uterus prevents the uterus from contraction of muscles of uterus meaning to atony and that leads to post partum haemorrhage. Before the report of ultra sound the adequate management of patient had already started with I.v. line blood that had been given to the patient. The treatment was given by her in the hospital and was more than sufficient, but the attendants of the deceased failed to make available any blood. She further clarified that even if the blood was made available it would not have mattered much. She further stated that since the patient was already in labour pain and therefore it was not advisable to her for medical reasons to ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 24 shift the patient to Shimla hospital or PGI, Chandigarh, more so, when the .
patient had been bleeding profusely as there was all possibilities of the patient collapsing on the way. She stated that it was wrong on the part of the plaintiff to state that she had been summoned between 9.00 p.m. on 25.4.1996 to 2.00 a.m. on 26.4.1996. She stated that Dr. Kamlesh Sharma had examined this case at 2.45 a.m. on 26.4.1996 and she was there in the hospital at 3.30 a.m. Lastly she stated that cause of death of Sandhya was because of post partum haemorrhage and not on account of any act of any negligence on her part.
28. On being cross-examined by the plaintiff, the witness stated that in general practice in medical treatment serious patient, are always attended first. She denied the suggestion that she came to know at about 9.00 a.m. in the morning of 26.4.1996 that foetus had died in the uterus. She further denied the suggestion that she left the patient unattended and gone to the OPD at 9.00 a.m. on 26.4.1996. She further denied that there is no facility to treat patients like Sandhya in Civil Hospital, Solan. She clarified that prescription slip mark 'A' was not initialed by her and further stated that she could not say by whom the same was signed. She admitted her signature on Ext.DG and admitted that as per Ex. PG the patient was referred by her to Kamla Nehru Hospital, Shimla because of non-availability of blood. At that time the patient started collapsing, therefore, the treatment was started with the consent of her attendants. She further clarified that blood group O negative is a rare blood and was not available in the hospital. She did not refer the patient to IGMC, Shimla because this blood group O negative is/was not available there also, but admitted that she had not sought any information with regard to this from IGMC, Shimla. But clarified that she was knowing it as a Doctor that generally this blood group O negative was not ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 25 available there also. She stated that the patient Sandhya was bleeding and .
was in labour pain. She was an anemic and her condition was not critical or serious at that time. She denied the suggestion that father of Sandhya Sh.
Bhagwan Singh had approached her at about 8.00 p.m. and 9.00 p.m. on 25.4.1996 and she further denied that in response to this call, she had come to the hospital and after imparting instructions to nursing staff had left the hospital. She further denied the suggestion that after imparting instruction, she was again given a call by the father of deceased Sandhya but had not come to attend the patient. She admitted that Sandhya remained under her treatment and medication from 3.30 a.m. to 1.00 p.m. on 26.4.1996. She denied the suggestion that despite the death of foetus and clotting having occurred in uterus, she did not care about Sandhya and failed to attend her by remaining busy with the treatment of outdoor patients.
29. In response to the court question, this witness stated that she had visited the patient from 3.30 a.m. to 1.00 p.m. on 26.4.1996 approximately 10-12 times. After 12.00 p.m. till her death, she remained with the patient at her bed side. She gave a call to the Surgeon Dr. S.R. Sharma, Dr. Ashok Handa, Anaethist and Physician A. K.Arora, who came and helped her in reviving the patient.
30. On resumption of cross-examination, she admitted that any call given to the Specialist or other doctors, is recorded by the concerned doctor giving the call, but the call given to the aforesaid doctors was not recorded by her because she was busy attending the patient whose condition was deteriorating drastically. She denied that entire prescription and diagnosis of the patient was written by her after the patient had already died. She clarified that the reference regarding the calling of aforesaid doctors could not be noted down in the medical record after the death because the file had ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 26 already gone to the CMO. She stated that the death certificate was not .
issued by the doctor attending the patient and is given by the Medical Superintendent. She further stated that the dead body of the patient was handed over by nursing staff to the relatives. The regular night duty of doctor remains from 9.00 p.m. to 9.00 a.m. She stated that her visiting time was not mentioned in the record. She denied the suggestion that it was incumbent upon the doctor to mention the time on the description of every visit. She denied the suggestion that the death of Sandhya occurred because she came late in response to the call given to her to attend the patient and thereafter remained negligent in giving her medical treatment. She further denied that non-availability of blood group O negative was the cause of death of the patient and clarified that cause of her death was post partum haemorrhage. She lastly stated that the death occurred because bleeding in the uterus itself which led to the excessive bleeding after the delivery of dead foetus.
31. No evidence was led by other defendants i.e. 1 to 3, 5 and 6.
32. At this stage, Mr. Raman Sethi, learned counsel for respondent No.1 would argue that this is a fit case where the doctrine of res ipsa loquitur is applicable and, therefore, the plaintiff is in no obligation to further prove the negligence as the same is writ large. I am afraid that such plea cannot be accepted. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or commission which would result in harm or injury to the patient. Even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 27 he cannot be penalized for losing a case provided he appeared in it and .
made his submissions. (Refer: Martin F. D'SOUZA vs. Mohd. Ishfaq (2009) 3 SCC 1).
33. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law require. (Refer: Indian Medical Association vs. V.P. Shantha and others (1995) 6 SCC 651).
34. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to to an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-
dose of medicine to his patient. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason - whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 28 can a physician successfully administer the life-saving dose of medicine.
.
Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society. (Refer Jacob Mathew vs. State of Punjab and another (2005) 6 SCC 1).
35. Negligence in civil law is understood to be an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not
36. Medical negligence has been lucidly and elaborately explained by the Hon'ble Supreme Court in Jacob Mathew's case (supra) wherein it was observed as under:
Negligence by professionals "18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 29 cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of .
100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v.
J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid, Para 8.03)
19. An oftquoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair J. in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586 in the following words:
"Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill . A man need not possess the highest expert skill... It is well established law that it is sufficient if he exercises the ordinary skill ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 30 of an ordinary competent man exercising that particular art." (Charlesworth & Percy, ibid, Para 8.02).
.
21. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):-
"35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed r different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
The abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence (ibid, para 8.110).
23. The decision of House of Lords in Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 (HL) by a Bench consisting of five Law Lords has been accepted as having settled the law on the point by holding that it is not enough to show that there is a body of competent professional opinion which considers that decision of the defendant professional was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 31 responsible body of medical opinion would have accepted it as proper. Lord Scarman who recorded the leading speech .
with which other four Lords agreed quoted the following words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 at
217), observing that the words cannot be bettered:
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary r care...."
Lord Scarman added:
"A doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence."
His Lordship further added that :
"[A] judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred."
24. The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 32 adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, .
when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used.
25. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.
Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
26. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 33 productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery .
has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
30. The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. Human body and medical science both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.
31. The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. Several relevant considerations in this regard are found mentioned by Alan Merry and Alexander McCall Smith in their work "Errors, Medicine and the Law" (Cambridge University Press, 2001). There is a marked tendency to look for a human actor to blame for an untoward event a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. To draw a distinction between the blameworthy and the blameless, the notion of mens rea has to be elaborately understood. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. Human body and its working is nothing less than a highly complex machine. Coupled with the complexities of ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 34 medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor, .
cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how in real life the doctor functions.
The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine.
32. At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are: (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation the person holding the 'smoking gun'.
41. Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. (1969) 1 SCR 206 was a case under Fatal Accidents Act, 1855. It does not make a reference to any other decided case. The duties which a doctor owes to his patients came up for consideration. The Court held that a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. The ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 35 doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is .
relatively ampler in cases of emergency. In this case, the death of patient was caused due to shock resulting from reduction of the fracture attempted by doctor without taking the elementary caution of giving anaesthetic to the patient. The doctor was held guilty of negligence and liability for damages in civil law. We hasten to add that criminal negligence or liability under criminal law was not an issue before the Court as it did not arise and hence was not considered.
45. M/s Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is again a case of liability for negligence by a medical professional in civil law. It was held that an error of judgment is not necessarily negligence. The Court referred to the decision in Whitehouse & Jorden, [1981] 1 ALL ER 267, and cited with approval the following statement of law contained in the opinion of Lord Fraser determining when an error of judgment can be termed as negligence:-
"The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence."
48. We sum up our conclusions as under:-
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 36(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To .
infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those r precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree.
::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 37Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but .
cannot form the basis for prosecution.
(6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor r should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence."
37. The basic principle relating to medical negligence is known as the Bolam Rule as laid down in Bolam vs. Friern Hospital (1957) 1 WLR 582 : (1957) 2 All ER 118 and the same has been approved by the Hon'ble Supreme Court in Jacob Mathew's case.
Fixing negligence is the standard of the ordinary skilled doctor exercising and professing to have that special skill, but a doctor need not possess the highest expert skill.
38. Despite the aforesaid principles, difficulties have been faced by the Courts in the application of those general principles to specific cases. The Courts have recognised that law, like medicine, is an inexact science. However, the Courts have recognised that (i) Judges are not experts in medical science, rather they are laymen and, therefore, this itself often difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 38 on testimonies of other doctors which may not necessarily in all cases .
be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge; and (ii) a balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counterproductive and serve society no good.
They inhibit the free exercise of judgment by a professional in a particular situation.
39. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. There is a tendency of confuse a reasonable person with an error-free person. An error of judgment may or may not be negligent. It depends on the nature of the error.
Also, now what is reasonable and what is unreasonable is a matter on which even experts may disagree. Also, they may disagree on what is a high level of care and what is a low level of care. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation, or operates on the wrong part of the body, ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 39 and he would be also criminally liable if he operates on someone for .
removing an organ for illegitimate trade.
40. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
41. The higher the acuteness in an emergency and the higher the complication, the more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and has to choose the lesser evil. The doctor is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case but a doctor cannot be penalized if he adopts the former procedure, even if it results in a failure.
42. There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers some serious harm, the doctor should not be held liable. Science advances by experimentation, but experiments sometimes end in failure. However, in such cases, it is advisable for the doctor to explain the situation to the patient and take his written consent.
::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 4043. Apart from the above, as held in Jacob Mathew's case .
(supra), negligence in the context of medical profession necessary calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from the one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows, a practice acceptable to the medical profession of that day, he/she cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the doctor followed.
44. Now, adverting to the judgment rendered by the learned trial Court, it would be seen that the said Court has been swayed more by emotions than by reasons. The learned Court below has failed to take into consideration the pleadings with respect to the negligence and thereafter ignored the evidence available on record, which in no manner establishes the negligence on the part of the defendants, more particularly defendant No.4.
45. The plaintiff has failed to establish the plea of negligence on the part of any of the defendants either in the pleadings or in the evidence so led, therefore, there are no reasons for the trial Court to have drawn a conclusion by infusing its own concepts of morality and so called professional ethics and professional aptitude and thereby decreed the suit by holding the defendant No.4 to be negligent.
::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 4146. Undoubtedly, this is an unfortunate case where Sandhya .
died in the hospital, but her death cannot be attributed to any laxity or negligence on the part of the doctors, attending to her, more particularly defendant No.4.
47. The plaintiff has led no evidence to show that in what manner defendant No.4 has not acted with standard of care, whereas defendant No.4 has led sufficient evidence to show that she acted in accordance with the general and approved practice. In fact the only allegations set-out against defendant No.4 appears to be that she did not attend the patient promptly on 25.4.1996 and thereafter did not attend her after 9.00 a.m. on 26.4.1996. However, both these allegations are belied from the pleadings as also the evidence led on record.
48. As observed by the Hon'ble Supreme Court, no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake and a single failure may cost him/her dear in his/her career.
49. Apart from the above, it is the responsibility of the government hospital to ensure that there is always a doctor on duty who is available round the clock and the doctor on duty is not only expected but is duty bound to constantly monitor the patient round-the-clock. But then there is no rule which requires a particular doctor be it even a specialist to work round the clock for 24 hours. The doctors have the fixed duty time and work in shifts. It is only when there is an emergency that the specialist in the concerned field is called upon to attend upon the patient. In the instant case, admittedly, defendant No.4 had rendered duty from 9.00 a.m. to ::: Downloaded on - 31/03/2018 22:57:48 :::HCHP 42 5.00 p.m. on 25.4.1996 and thereafter as per the rules and practice .
after completing her shift, it was the shift of Dr. Kamlesh Sharma, who after facing difficulty in treating the patient had called upon defendant No.4 to attend upon the patient at 2.45 a.m. and it is not in dispute that defendant No.4 in fact came and attended the patient at 3.30 a.m. on 26.4.1996 and only after treating her, she left for her residence. Not only this, as per the duty roster, she again reported at 9.00 a.m. on 26.4.1996 and thereafter attended the patient.
50. Lastly even defendants No. 1 to 3 could not have been held vicariously liable, that too, observing that there have been mal-
administration of the hospital or that they have been non-serious attitude and indifferent work culture aggravated by the negligent act performed by defendant No.4.
51. In view of the aforesaid discussion, I find merit in this appeal and the same is accordingly allowed. The judgment and decree dated 5.1.2001 passed by learned District Judge, Solan in Civil Suit No. 8/1 of 1997 is set-aside and resultantly the suit filed by the plaintiff is ordered to be dismissed. The pending application(s) if any, also stands disposed of, leaving the parties to bear their own costs.
March 29, 2018. (Tarlok Singh Chauhan)
(GR) Judge
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