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1 - 7 of 7 (1.11 seconds)Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005
20. The law on the subject has been elaborately discussed by
the Supreme Court in the case of Jacob Mathew vs. State
of Punjab, (2005) 6 SCC page 1. I may quote the relevant
observations made in the said judgment by the Supreme
Court;
Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20 February, 1996
In Achutrao Haribhau Khodwa and Ors. v. State of
Maharashtra and Ors. (1996) 2 SCC 634 the Court
noticed that in the very nature of medical profession,
skills differs from doctor to doctor and more than one
alternative course of treatment are available, all
admissible. Negligence cannot be attributed to a doctor
so long as he is performing his duties to the best of his
ability and with due care and caution. Merely because
the doctor chooses one course of action in preference to
the other one available, he would not be liable if the
course of action chosen by him was acceptable to the
medical profession. It was a case where a mop was left
inside the lady patient's abdomen during an operation.
Peritonitis developed which led to a second surgery being
performed on her, but she could not survive. Liability for
negligence was fastened on the surgeon because no
valid explanation was forthcoming for the mop having
been left inside the abdomen of the lady. The doctrine of
res ipsa loquitur was held applicable 'in a case like this'.
K. S. Nanji And Company vs Jatashankar Dossa And Others on 22 March, 1961
There are
many exceptions to this proposition. The burden also rests on
a person who has a negative assertion to make. The amount of
evidence required to shift the burden, however, depends on
the circumstances of each case. The Apex Court in its decision
in the case of K. S. Nanji and Co. v. Jatashankar Dossa and
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C/FA/944/2017 JUDGMENT
Ors., reported in AIR 1961 SC 1474 had pointed out that there
is an essential distinction between the phrase, burden of proof,
as a matter of law and pleading and as a matter of adducing
evidence. Their Lordships have stated that under Section 101
of the Evidence Act, the burden in the former sense is upon the
party who comes to Court to get a decision on the existence of
certain facts which he asserts and that burden is constant
throughout but the burden of proof in the sense of adducing
evidence shifts from time to time having regard to the
evidence adduced by one party or the other or the
presumption of fact or law raised in favour of one or the other.
State Of Haryana & Ors vs Smt. Santra on 24 April, 2000
In State of Haryana and Ors. v. Smt. Santra, (2000)
5 SCC 182 also Bolam's test has been approved. This
case too refers to liability for compensation under civil
law for failure of sterilisation operation performed by a
surgeon. We are not dealing with that situation in the
case before us and, therefore, leave it to be dealt within
an appropriate case.
Section 101 in The Indian Evidence Act, 1872 [Entire Act]
M/S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia Through, K.S. ... on 25 March, 1998
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
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C/FA/944/2017 JUDGMENT
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:-
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