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1998 Supreme(Bom) 251
IN THE HIGH COURT OF BOMBAY
Dr. Pratibha Upasani, J.
Venkatesh Iyer ..... Plaintiff.
Versus
Bombay Hospital Trust others.... Defendants.
Suit No. 714 of 1992, decided on 23/24 29-4-1998.
Advocates appeared :
Mihir Desai with Ms. Adenwala, for the plaintiff.
Ketan Parikh with Gautam Mehta i/b. Kanga Co., for defendant Nos. 1 and 2.
D.V. Merchant with Snehal Shah and V.R. Maniar i/b. Dhru Co., for defendant No. 3.
Headnote:Order I, Rule 9-Limitation Act, 1963, Article 113-Compensation suit from medical practitioner-Misfeasance or malfeasance is point of starting limitation-Result of injury at that time-Filing of suit after result of injury after 5 years-Time barred.-Article 36 of the Indian Limitation Act, 1908 (now corresponding Article 113 of the Limitation Act, 1963) limitation runs not from the date of misfeasance or malfeasance, but from the time the injury results.
Order XXXIX, Rules 1 and 2, Order XXXIII, Rules 1 and 9-Bombay Hospital sued for negligence Suit for Rs. 46 lacs-Forma pauperis Contention-Suppression of income by plaintiff-In fact he is not entitled to be treated as pauper-Held-Suppression of facts being proved he shall be non-suited for litigation-As per decision of Supreme Court AIR 1994 SC 853.-Observing thus, the Supreme Court in this case set aside the decree, holding that it was vitiated by fraud. Relying upon this judgment of the Supreme Court Advocate Mr. Merchant and Advocate Mr. Parkh argued that the plaintiff had inherited property of his father, he had some quantity of gold, which had come to his share, he held shares worth Rs. 12,000/- but that all this was withheld by him and not disclosed by him in of the Plaint, and in the Schedule of Properties, which and that, in fact, all these facts were categorically denied and that, by suppressing these vital facts and by withholding these vital information, the plaintiff has played fraud upon the Court, whereby he gained and succeeded in avoiding payment of the Court Fees and the loss was caused to the Exchequer. It was further argued that during the course of cross-examination, the plaintiff got exposed and all these facts have come on record including his income from the Teaching Centre. It is, therefore, prayed by the defendants that such a plaintiff should not be allowed to go on with the suit without making him to pay the court-fee as per the provisions of the Court Fees Act, by depauperising him.
DR. PRATIBHA UPASANI, J.:---The plaintiff, Mr. Venkatesh Iyer has filed his suit against Bombay Hospital Trust through its Medical Director and Superintendent (defendant Nos. 1 and 2) and Dr. Arvind Kulkarni, erstwhile Head of Department of the Radiation Therapy of Bombay Hospital, claiming a sum of Rs. 47,00,000/- as damages for allegedly treating the plaintiff with negligence. The break up of the claim for special and general damages as given in the particulars of the claim at Annexure II to the plaint and in the prayers is as follows :
Rs. 2 lakhs for medical expenses and Rs. 10 lakhs for future surgery. (These are the claims under the head of Special Damages). Rs. 15 lakhs for loss of future earnings and Rs. 20 lakhs for loss of amenities, mental and physical shock and torture, totalling to Rs. 47 lakhs. Interest is claimed on this amount at the rate of 18% per annum from the date of filing of the suit till payment or realisation.
2.The case of the plaintiff as revealed from the plaint is as follows :
The plaintiff was a healthy person studying in college and also was interested in activities like Karate. He was aspiring to do Hotel Management Course at Bombay.
3.In or about the first week of January 1985, the plaintiff started suffering from fever and complete loss of appetite. There was also growth of a boil near the lower side of his abdomen. The plaintiff was feeling weak. His family doctor Dr. Shah treated him for Malaria but found no improvement. The plaintiff was then hospitalised in Shroff Nursing Home at Borivali where he remained as an indoor patient for a period from 15-1-1985 to 20-1-1985. However, there was no marked improvement. He was then advised to get admitted in a larger hospital for diagnosis and treatment.
4.The plaintiff was, therefore, referred to Bombay Hospital where he got admitted on 21-1-1985. CT Scan, Bone Marrow biopsy, X-Rays, Blood test, Urine and Stool tests, biopsy and other related tests were carried out on the basis of which late Dr. Asha Veer diagnosed the plaintiff as suffering from Hodgkins Lymphoma (Cancer of Lymph Glands) in stage 1-A which is a completely curable stage.
5.The plaintiff was initially treated with 1 course of ABVD Chemotherapy by late Dr. Asha Veer and thereafter she referred him to Dr. Arvind Kulkarni, Radiotherapist of Bombay Hospital for giving radiation to the plaintiff. Dr. Arvind Kulkarni gave the plaintiff radiation treatment in the left lower inguinial region. This treatment lasted from 6-2-1985 to 28-2-1985 during which period, he was given 4000 rads of radiation.
6.After this course of radiation treatment, the plaintiff was discharged from the hospital in the last week of February 1985. He was, however, asked to visit the Hospital every fortnight for Chemotherapy. The plaintiff continued the treatment of Chemotherapy as prescribed. He was informed that his cancer was cured and the treatment being given to him was recuperative and preventive. At the time of his discharge, the plaintiff's appetite had returned to normal and his fever had also gone. His boil near the lower side of the abdomen had already been removed and there was no further growth or recurrence.
7.While the plaintiff was about to take the 10th course of Chemotherapy treatment, he developed a swelling in the left leg. At this time he did not have any fever, loss of appetite, boil or weakness or any other symptom. However, since the swelling was not reducing, he decided to get himself checked by Dr. Asha Veer. She examined him. CT Scan was carried out and thereafter Dr. Veer referred him to Dr. Kulkarni. Dr. Kulkarni examined him but did not carry out any further tests like biopsy, bone marrow biopsy etc. It is, therefore, the contention of the plaintiff in the plaint that Dr. Arvind Kulkarni (defendant No. 3) came to a premature conclusion that the plaintiff had a recurrence of cancer.
8.The plaintiff was again admitted to Bombay Hospital and during the period 7-9-1985 to 5-10-1985, given
