Topic: Achutrao Haribhau Khodwa vs State of Maharashtra

Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors
BENCH: KIRPAL B.N. (J), BHARUCHA S.P. (J) - CITATION: 1996 SCC  (2) 634, JT 1996 (2), 624 1996 SCALE  (2)328 - Supreme Court of India - DATE OF JUDGMENT:    20/02/1996

J U D G M E N T Kirpal, J.

The appellants are aggrieved by the judgment of    the Aurangabad Bench of the Bombay High Court which has reversed a decree for Rs.36,000/- passed by the Civil Judge, Second Division, Aurangabad, as damages on account of the death of one Chandrikabai who was the wife of appellant no.1 and the mother of appellant nos. 2 to 5, after she had undergone a sterilization operation at the Civil Hospital, Aurangabad.

The case of the appellants before the trial court was that the deceased Chandrikabai    was admitted in the Civil Hospital, Aurangabad on 10th July, 1963, for delivery of a child. This maternity hospital    is attached to the Medical College at Aurangabad and respondent no.2 was working in the department of Obstetrics and Gynecology as a doctor and it is she who attended on Chandrikabai. Respondent no.3 was the Medical Officer    of the    said hospital while respondent no.4 was the    Dean of Medical College, Aurangabad. Chandrikabai delivered a male child    on 10th July, 1963. As she had got herself admitted to this hospital with a view to undergo a sterilization operation after the    delivery, the    said operation was performed by respondent no.2 on 13th July, 1963. Soon thereafter Chandrikabai developed high fever and also had acute pain which was abnormal after such a simple operation. Her    condition deteriorated    further and on 15th July, 1963 appellant no.1 approached respondent no.3 and one Dr. Divan, PW-2, who was a well-known surgeon and    was attached to the hospital, but was not directly connected with the Gynecological department. At    the insistence of appellant no.1 Dr. Divan examined Chandrikabai on 15th July, 1963, and seeing her condition, he is alleged to    have suggested that    the sterilization operation which had been performed should be re-opened. This suggestion was not acted upon by respondent nos.2 and 3 and the condition of Chandrikabai became very serious. On 19th July, 1963, Dr. Divan, on being called    once again, re-opened the wound of the earlier operation in order to ascertain the true cause of the    seriousness of the ailment and to find out the cause of the worsening condition of Chandrikabai. According to the appellants, respondent    nos. 2    and 3 assisted Dr. Divan in this Operation.    Dr. Divan, as a result of    the second operation, found that a mop (towel) had been left inside the body of Chandrikabai    when sterilization operation    was performed on her. It was found that there was collection of pus and    the same was drained out by Dr. Divan. Thereafter, the abdomen was closed    and the second operation completed. Even, thereafter the condition of Chandrikabai did    not improve and ultimately she expired on 24th July 1963.

Alleging that Chandrikabai was working as a teacher in a government school and her salary augmented the total income of the family,    it was    pleaded that the death of Chandrikabai was caused due to the negligence of respondent no.2 who had performed    the sterilization operation on 13th July 1963, as well    as the    irresponsible    behavior of respondent no.3. The    appellants also alleged that    the hospital lacked    adequate medical aid and proper care    and there was gross dereliction of duty on the part of    the officers of the Government Civil Hospital which directly resulted in the death    of Chandrikabai    and, therefore, the appellants were entitled to    recover damages from    the Government of Maharashtra (respondent    no.1)    as well as respondent nos.2 to 4. The appellants claimed total damages of Rs.1,75,00O/-. It may here be noticed that the suit was commenced with    the appellants' filing application    for permission to sue in form pauperis and, on the same being allowed, the same was    converted to Special Civil Suit no.5 of 1965.

Respondents 1 and 4 filed a common written statement contending that    the appellants' suit    was false. It    was denied that there was    any negligence in the performance of the sterilization operation on 13th July 1963, at the hands of respondent no. 2. In fact the case of the respondents was that after the sterilization operation on 13th July, 1963, the condition of Chandrikabai had improved. All allegations of negligence etc. were specifically denied.    In addition thereto, respondents    2 and    3 filed separate written statements in which they also denied any negligence on their part. Respondent no.2 denied having left any mop in    the abdomen of Chandrikabai and, in the alternative, pleaded that even if such a mop was left inside the body, the same could not have, either    directly or remotely,    caused    the death. Respondent no.3 also denied the recovery of the mop from the abdomen and generally supported the case of the other respondents.

In view of the pleadings of the parties the Civil Judge framed as many as II issues which are as follows:

1. Do plaintiffs    prove that the defendant    no.2    performed the operation    without due care, attention and caution and    in the most negligent manner?
2. Do plaintiffs prove that a mop was left in the    abdomen    of the deceased Chandrikabai during the first operation,    and if    so, do plaintiffs further    prove    that it was so left as    a result of negligence, lack    of care and insufficient diligence    in the operation    performed by defendant no.2?
3. Do plaintiffs prove that as a result of    the mop remaining inside the body of Chandrikabai during the first operation by defendant no.2, a severe pain was    caused    to her deteriorating her    health and that the said mop disturbed the internal organism of the body and resulted ultimately    in    the death of Chandrikabai on 24th July 1963."
4. Do plaintiff's prove that the defendants no.2 and 3 did not take proper care of Chandrikabai in the post operation stage as per details stated in para 7 of the plaint. 5 Do plaintiff's    prove that the defendant no.4 also did not take any proper and necessary steps when he was instructed about the pain received by Chandrikabai?
6. Do they prove    that there was mismanagement and careless behavior in the hospital and negligence by defendant no.3 in the removal of the same as stated in last part of para 7 and that it aggravated the situation resulting in the death of Chandrikabai?
7. Do the plaintiffs prove that the death of Chanbdrikabai was caused due to failure of duty on the part of hospital authorities and their dereliction of duty and hence all defendants are liable for the same?
8. Do plaintiffs prove the various details of    compensation as stated in para 9 of the plaint?
9. To what amount    are plaintiffs entitled on account of damages?
10. What order about the recovery of the court fees?
11. What decree and order?
In support    of their case the appellants, apart    from examining appellant no.1 and his mother-in-law, also relied upon the evidence of Dr. Divan PW-2. In addition thereto the appellants also examined, on commission, Dr. Ajinkya who was a Gynecologist    and Obstetrician of Bombay. According to Dr. Divan, after the sterilization    operation Chandrikabai    had suffered from post operative peritonitis. This was due to a mop which had remained    inside the peritonial cavity for a number of days and inflammatory condition had reached a stage from which recovery was very difficult. After    the removal of the mop Dr. Divan said that he saw the condition of the    intestine which    continued to remain paralysed. The treatment of peritonitis was started from 15th July, 1963 and in    his opinion the death of the patient was due to the complications following    the leaving of the mop inside the abdomen. The other expert witness Dr. Ajinkya also came to the same conclusion, though his statement was recorded without his having the benefit of seeing the case papers. On behalf    of the    respondents, apart from themselves,    two experts, namely, Dr. Marwa, Professor of Surgery, Medical College, Aurangabad and Dr.B.V. Purandare, a leading Obstetrician and Gynecologist of Bombay were examined. The trial court did not rely upon    the evidence of the experts examined by the respondents    because it came to    the conclusion that    the original documents and case papers had been filed late, some relevant entries had also    been tampered with and it was only the typed papers, which were copies of the tampered documents, which were supplied to the respondents' expert witnesses for their opinion. The trial court, while accepting and relying on    the evidence of Dr. Divan, also observed that the effort of respondents 2 and 3 was to throw the blame on Dr. Divan. According to them, they had prohibited    Dr. Divan from performing    the second operation and the said    respondents even denied that a mop was recovered from the    abdomen of Chandrikabai. The trial court decided all the    issues, except    issues 5 and 6, in favour of the appellants and passed a decree for Rs.36,000/- against respondent nos. 1 to    3, but the suit against respondent no.4 was dismissed.

The State    as well    as the    respondents 2    and 3 filed appeals to the High Court. In    a marathon judgment of over 300 pages the High Court discussed all the evidence    and firstly came to the conclusion that, in law, the Government could not be held liable for    tortious act committed in a hospital maintained by it. Thereafter, it held that though there was no justification for the delay in the authorities' concerned in supplying the case papers to the appellants, no prejudice had been caused. The High Court did observe that there were some erasure marks and rubbing off of the entries in the    original case papers, but held that    it was    not possible to infer therefrom that the registers had    been tampered with and that    there was no material    before    the trial court to hold that the case papers were tampered with by respondents    2 to 4. The High Court also noticed that the opinion of the experts was conflicting. Whereas according to Dr. Divan and Dr. Ajinkya, Chandrikabai had peritonitis even before the second operation on 19th July, 1963, and she died because    of the same, according to Dr.    Purandare, Chandrikabai was only suffering from acute gastic disorder till 19th July, 1963,    and it was necessary for the doctors to have    waited after removal of the pus on that day and the second operation was possibly    not necessary. Dr. Purandare deposed that in the absence of a post mortem examination the exact and correct cause of death could not be determined though, by looking at    the case papers, the cause of death was peritonitis with    septicaemia following    the second operation. The    opinion of Dr. Marwa was also to the same effect. The High Court    while accepting the evidence of Dr. Purandare came    to the conclusion that    it was difficult to hold that anything that was done during the sterilization operation, or thereafter, had definitely caused the death of Chandrikabai. While,    holding    that respondent no.2    had definitely been    negligent in    leaving    a mop    inside    the abdomen of Chandrikabai, it held that    the appellants    had failed to prove that the negligence of leaving the mop inside the abdomen had caused the death of Chandrikabai. It, therefore, concluded that none    of the respondents could be held liable for negligence. It, accordingly,    allowed    the appeals and dismissed the suit.

Two questions which arise    for consideration in    this appeal are whether the    State of Maharashtra can be    held liable for any negligence of its employees and secondly whether the respondents or any one of them acted negligently in the discharge of their duties.

Decisions of this Court now leave no scope for arguing that the State cannot    be held to be variously liable if it is found that the death of Chandrikabi was caused due to negligence on the part of its employees.

In State of Rajasthan Vs. Mst. Vidhyawati and Anr. (AIR 1962 SC    933) the question arose with regard to the various liability of the State of Rajasthan. In that case a vehicle owned by the State of Rajasthan, which was being driven by its driver, met with an accident which resulted in the death of one person. The death was caused due to the negligence of the driver. The two contentions of the State of Rajasthan were that under Article 300 of the Constitution, the State would not be liable, as the corresponding Indian State would not have been liable if the case had arisen    before    the Constitution came into force.    Secondly, it was contended that the jeep which was driven rashly and negligently was being maintained by the State in exercise of its sovereign powers and was not a part of any commercial activity of the State. Rejecting the said contention this Court held that "the State should be as much liable for tort in respect of a tortious act committed by its servant    within the scope of his employment    and functioning as such, as any other employer. "This    question again came up for consideration in Kasturi Lal Ralia Ram    Jain Vs. The State of Uttar Pradesh. (AIR 1965 SC 1039) and which    has been referred to by the High Court in the present    case while coming to    the conclusion that    the State of Maharashtra cannot be held to be variously liable. In Kasturi Lal's    case gold had been seized and the same had been    kept in a malkhana.    The appellant demanded the return of this gold but the same was not returned.    It appeared    that the same had    been misappropriated by the person in-charge of the malkhana. The respondents therein claimed that it was not    a case of negligence by the Police officers and even if negligence was proved the State could not be held to be liable for the said loss. While holding that there was negligence on the part of the police officers, this Court denied relief by observing that the powers which were exercised by the police officers could be properly characterized as sovereign    powers    and, therefore, the    claim could not be sustained.    This Court distinguished the decision in Vidhyawati's case    by observing:

"In dealing with    such cases, it must be borne in mind that when the State pleads immunity    against claims for    damages resulting from injury caused by negligent acts of its servants,    the area or employment referable to sovereign powers must be strictly determined. Before such a plea is upheld, the Court must    always    find that the impugned act was committed in the course of an    undertaking or employment which is referable to the exercise of sovereign power, or to    the exercise    of delegated sovereign power...."
Explaining the    distinction between the two types of cases, it was also observed as follows;

"It is not difficult to realize the significance and    importance of making such    a distinction particularly at the present time when, in pursuit of their welfare ideal, the Government of the States as well as the Government of India naturally    and legitimately enter into many    commercial and other undertakings and activities which have no    relation with the traditional concept of governmental activities in which the exercise of sovereign power is involved. It is necessary    to limit the    area of these affairs of the State in relation    to the exercise of sovereign powers,    so that    if acts are committed    by Government employees    in relation to other activities    which may be conveniently described as nongovernmental or non-sovereign, citizens who have a cause of action for damages should not be precluded from making their claim against the State, That is the basis on which the area    of the    State    immunity against such claims must be limited; and this is exactly what has been done by this Court in its decision in the case of State of Rajasthan."
Two recent decisions where the State    has been held to be variously liable on account of the negligent acts of its employees are those of N. Nagendra Rao and Company Vs. State of Andhra Pradesh (1994 (6)    SCC 205) and    State of Maharashtra & Ors. Vs.    Kanchanmala Vijay Singh Shrike & Ors. (    JT 1995    SC 155). In Nagendra Rao's case some goods had been conficated pursuant    to an    order passed under Section 6 A of the Essential Commodities Act, 1955. The said order was annulled but due to the negligence of the officers concerned goods were not found to be of the same quality and quantity which    were there at the time of its confiscation. The owners of the goods refused to take delivery and filed a suit    claiming value    of the goods by way of compensation. The High Court of Andhra Pradesh held that the State was not variously liable for negligence of its    officers in charge of their statutory duties. Negativing    this,    this Court while allowing the appeal observed at page 235 as follows:

"In Welfare State, functions of the State are    not only defence of the country or administration of justice or maintaining    law and order but extends to regulating and controlling the    activities of people in    almost every    sphere, educational, commercial, social, economic,    political and even marital.    The demarcating line between sovereign and non sovereign    powers    for which no rational basis survives has largely disappeared. Therefore,    barring functions such as administration of justice, maintenance of    law and order and    repression of crime etc. which are    among the primary and inalienable functions    of a constitutional government, the State cannot claim any immunity.
The determination    of    various liability    of the State    being linked with negligence    of its officer, if they can    be sued personally for which there is no death of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rational for    the proposition that even    if the officer is liable the State    cannot be sued. The liability    of    the    officer personally was not doubted even in Viscount Canterbury. But the Crown was held    immune    on doctrine of sovereign    immunity. Since the doctrine has become outdated and sovereignty now    vests    in the people, the State cannot claim any immunity    and if a suit is maintainable against the    officer personally, than there is no reason to    hold    that it would    not be maintainable against the State."
A similar view has been taken    in Kanchanmala Vijaysingh's case (supra) where, dealing with a claim for compensation arising as a result of an accident with a jeep belonging to the State, it was observed as follows:

"Traditionally, before court directed    payment of    tort compensation, the    claimant had to establish the fault of the person causing injury or damage.    But of late, it    shall appear from different    judicial pronouncements that the    fault is being    read as because of    someone's negligence or carelessness. Same    is the approach and attitude of the courts while judging the various liability of the employer for negligence of the employee.    Negligence is the omission to do something    which a reasonable man is expected to do or a prudent    man is    expected not to do. Whether in    the facts and circumstances of a particular case, the person    causing injury    to the other was negligence or not has to be    examined on    the materials produced before the Court. It is the rule that an    employer, though guilty of    no fault himself, is liable for    the damage done by the fault or negligence of his servant acting in    the course    of his employment. In some case, it can be found that an employee was doing an authorised act in an unauthorised but not    a prohibited way. The employer shall be liable    for such act, because such employee was acting within the scope    of his employment and in so acting done something negligent or wrongful. A master is    liable    even for acts which he has    not authorised provided they are so connected with acts which he    has been so authorised. On the other    hand, if the act of the servant is not even remotely connected within the scope of employment and is an independent act, the    master    shall    not be responsible because the servant is not acting    in the    course    of his employment but has gone outside."
The High Court has observed that the government cannot be held    liable in tort for tortious acts committed in a hospital maintained by it because    it considered    that maintaining and    running a hospital was an exercise of the State's    sovereign power. We    do not think that    this conclusion is correct. Running a hospital is a welfare activity undertaken by the government but it    is not an exclusive function or activity of the government so as to be classified as one which could    be regarded as being in exercise of its sovereign power. In    Kasturi    Lal's    case itself, in the    passage which has been quoted hereinabove, this Court noticed that in pursuit of the welfare ideal the government may    enter    into    many commercial and other activities which have no relation    to the traditional concept of governmental activity in exercise    of sovereign power. Just as running of passenger buses for the benefit of general public    is not    a sovereign function, similarly the running of a hospital,    where the members of    the general public can come for treatment, cannot    also be regarded as being an activity having a sovereign character. This being so, the    State would be variously liable for    the damages which may become payable on account of negligence of its doctors or other employees.

Before considering whether the    respondents in    the present case could be    held to    be negligent,    it will be useful to see as to what can be regarded as negligence on the part of a doctor. The test with regard to the negligence of a doctor was laid down in Bolam Vs. Friern Hospital Management Committee ( [1957]    1 WLR 582 ). It was to the effect that a doctor is not guilty of negligence if he acted in accordance with a practice    accepted as proper by a responsible body of medicalmen skilled in that particular art. This principle in Bolam's case has been accepted by the House of Lords in England as    applicable to diagnosis and treatment. (See    Sidaway Vs. Board of    Governors of Bethlem Roval Hospital    ( [1985] A.C. 871 at 881 ) Dealing with the question of negligence, the High Court of Australia in Rogers Vs. Whitaker (    [1993] 109 A.L.R. has held that the question is not whether the doctor's    conduct accords with the practice of a medical profession or some part of it, but whether it conforms to    the standard    of reasonable    care demanded by the law. That is    a question for the court to decide and the duty of deciding it cannot be delegated to any profession or group in    the community. It would, therefore, appear that the Australian High Court has taken a somewhat different view than the principle enunciated in Bolam's case.    This Court has    had an occasion to go into this question in the case of Dr.Laxman Balkrishan Joshi Vs. Dr. Trimbak Bapu Godbole and Anr. (AIR 1969    SC 128 ). In that case the High Court had held that the death of the son of the    claimant was    due to    the shock resulting    from reduction of the patient's fracture attempted by the doctor without    taking the    elementary caution    of giving anaesthetic. In    this context,    with reference to the duties of the    doctors    to the patient this    court,    in appeal, observed as follows:

"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 whether 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 requires.
The above    principle was again applied by this court in the case of A.S. Mittal and Ors. vs. State of U.P. and Ors. (AIR 1989 SC 1570). In that case irreparable damage had been done to    the eyes of some of the patients who were operated upon at    an eye    camp.    Though    this Court refrained    from deciding, in that particular case, whether the doctors were negligent, it observed    "A mistake by a medical practitioner which no reasonably competent and a careful practitioner would have committed is a negligent one." The Court also took note that the    law recognizes    the dangers which are inherent in surgical operations and that mistakes will occur, on occasions, despite the exercise of reasonable skill and care. The Court further quoted Street on Torts (1983) (7th Edn.) wherein it was stated that the doctrine of res ipso loquitur was    attracted: "....Where an unexplained accident occurs    from a    thing    under the control of    the defendant, and    medical or other expert evidence shows that such accidents    would not happen if proper care were used, there is at least evidence of negligence for a jury." The latest case to which reference can be made is that of Indian Medical Association Vs. V.P. Shantha and Ors. (1995) 6 SCC

651). The question which arose in this case was whether the Consumer Protection Act, 1986, applied    to medical practitioners, hospitals and nursing homes. It was held in this case that medical practitioners were not immune from a claim for damages on the ground of negligence. The Court also approved    a passage from Jackson &    Powell    on Professional Negligence    and held that "the approach of the Courts is to require that professional men should possess a certain minimum    degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as    well as in contract to exercise reasonable care in giving advice or performing services."

The skill    of medical practitioners differs from doctor to doctor. The very nature of    the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the    course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.

In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such    a case an action in torts would be maintainable. As held in    Laxman's case    (supra)    by this Court a medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor.

In the present case the facts speak for    themselves. Negligence is writ large. The facts as found    by both the courts, in a nutshell, are that Chandrikabai was admitted to the government    hospital where she delivered a child on 10th July, 1963. She had a sterilization operation on 13th July, 1963. This operation is not known to be serious in nature and in fact was performed under local anesthesia. Complications arose thereafter which resulted in a second operation being performed on her on 19th July, 1963. She did not survive for long and died on 24th July, 1963. Both Dr. Divan and Dr. Purandare have stated that the cause of death was peritonitis. In a case like this the doctrine of res ipso loquitur clearly applies. Chandrikabai had had a minor operation on 13th July, 1963 and due to the negligence of respondent no.2 a    mop (towel) was left    inside    her peritonial cavity. It is true that in a number of cases when foreign bodies are left inside the body of a human being either deliberately, as    in the    case of    orthopaedic operations, or    accidentally no harm may befall the patient, but it    also happens that complications can arise when the doctor acts without due care    and caution and leaves a foreign    body    inside    the patient after performing an operation and it suppurates. The formation of pus leaves no doubt that the mop left in the abdomen caused it, and it was the pus formation that caused all the    subsequent difficulties. There is no escape from    the conclusion that the negligence    in leaving the mop in Chandrikabai's abdomen during the first operation led, ultimately, to her death. But for    the fact that a mop was left inside the body, the second operation on 19th July, 1963 would not have taken place. It is the leaving of that mop inside the abdomen of Chandrikabai which led to the development of peritonitis leading to her death.    She was admitted to the hospital, on 10th July, 1963 for a simple case of delivery followed by a sterilization operation. But even after a normal delivery she did    not come out of the hospital    alive. Under these circumstances, and in the absence of any valid explanation by the    respondents which would satisfy the court that there was no    negligence on their part, we have no hesitation in holding    that    Chandrikabai died due to negligence of respondent nos. 2 and 3.

Even if it be assumed that it is the second operation performed by Dr. Divan which led to the peritonitis, as has been deposed to by Dr. Purandare, the fact still remains that but for the leaving of the mop inside the peritonial cavity, it would not have been necessary to have the second operation. Assuming even that the second operation was done negligently or    that there was lack of adequate care after the operation which led to peritonitis, the fact remains that Dr. Divan was an employee of respondent no.1 and the State must be held to be variously liable for the negligent acts of    its employees    working in the said hospital.    The claim of the appellants cannot be defeated merely because it may not    have been conclusively proved    as to    which of the doctors employed by the State in the hospital or other staff acted negligently which caused    the death of Chandrikabai. Once death by negligence in the hospital is established, as in the    case here, the State would be liable to pay    the damages. In our opinion, therefore, the High Court clearly fell in    error in reversing the judgment of the trial court and in dismissing the appellants' suit.

For the aforesaid reasons, this appeal is allowed, the judgment of the High Court of    Bombay under appeal is set aside and the judgment    and decree of the trial court is restored. The appellants will    also be    entitled to costs throughout.