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1996(2) SUPREME 751
SUPREME COURT OF INDIA
S.P. Bharucha and B.N. Kirpal, JJ.
Achutrao Haribhau Khodwa & Ors. -Appellants
versus
State of Maharashtra & Ors. -Respondents
Civil Appeal No. 3318 of 1979
Decided on 20-2-1996
Counsel for the Parties :
For the Appellant : S.V. Deshpande, Advocate.
For the Respondents : Ms. J.S. Wad, Mr. S.M. Jadhav, D.M. Nargolkar and B.Y. Kulkarni, Advocates.
Held : Decisions of this Court now leave no scope for arguing that the State cannot be held to be vicariously liable if it is found that the death of Chandrikabai was caused due to negligence on the part of its employees. (Para 9)
Held further : 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. (Para 13)
(ii) Law of Tort-Negligence on the part of doctor-Meaning explained-Liability in Tort as well as in contract if reasonable care in giving advice or performing services is not exercised. (Para 15)
Held : 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 patitent 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. (Para 16)
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. (Para 17)
(iii) Suit in forma paupris for damages-Death of patient alleged to be due to negligence in performance of sterilisation operation-A mop (Towel) recovered when operated would later re-opened-Whether negligence is wit at large ? (Yes)-High Court reversed trial Court s grant of Rs. 36,000 as compensation on the ground that appellant had failed to prove that the negligence of leaving the mop (Towel) inside the abdomen had caused the death of Chandrikabai-Whether correct ? (No)
Held : 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 sterilisation 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. (Para 18)
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. (Para 19)
Held finally : For the aforesaid reason, this appeal is allowed, the judgment of the High Court of Bombay under appeal is set aside the judgment and decree of the trial court is restored. The appellants will also be entitled to costs throughout. (Para 20)
JUDGMENT
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 sterilisation operation at the Civil Hospital, Aurangabad.
2. 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 Gyanecology as doctor and it is she who attented 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 10 July, 1963. As she had got herself admitted to this hospital with a view to undergo a sterilisation 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 Gynaecological 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 sterilisation 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 sterilisation 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.
3. 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 sterilisation operation on 13th July 1963, as well as the irresponsible behaviour 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. 1,75,000/-. It may here be noticed that the suit was commenced with the appellants filing application for permission to sue in forma pauperis and, on the same being allowed, the same was converted to Special Civil Suit no.5 of 1965.
4. 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 sterilisation operation on 13th July 1963, at the hands of respondent no.2. In fact the case of the respond
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