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2011 Supreme(Bom) 1041
2012(1) ALL MR 510
Bombay High Court
ROSHAN DALVI
Padam Chandra Singhi & Ors.
Vs
P.B. Desai & Ors.
Suit No. 1101 of 1989
Decided on : 2/9/2011
Headnote:(A) Contract Act , 1872---Sections 2(h), 7, 8 and 9---In a case of a contract between patient and surgeon performance can be seen by all acts done for the performance of surgery, surgery itself and consequent payment for surgery---Acceptance is seen by the consideration sought to be charged for his fees. (Paras 91 and 95)
(B) Evidence Act , 1872---Section 106---Proof of fact---Person who alleges particular fact to his knowledge has to prove that fact . (Para 46)
(C) Torts---Medical negligence---Breach of contract of a personal nature more so by a professional involves violations of human rights and is the most acute and profound in case of doctors---Their breach by non-performance would result also in fatality---It would result in considerable mental distress and may lead to other mental problems including depression arising from such distress and agony---Such damages cannot be computed upon the precise monetary loss alone---Extent of damages for breach of contract of professional services agreed and failed to be rendered and for consequent mental agony, distress and anguish would be analogous to the damages which are grantable for similar effects upon a tort.. (Paras 152 , 157 , 163 and 164)
1. Plaintiff No.1 is the husband of the original Plaintiff No.2 who suffered from cancer and was consequently admitted to the hospital of Defendants 3 to 7 being the Trustees of Bombay Hospital Trust. Plaintiff Nos.2(a) and 2(b) are the heirs of the original Plaintiff No.2 who has since expired. Defendant No.1 was the Honorary Surgeon attached to Bombay Hospital (BH) and was the head of the department of Oncology. Defendant No.2 was the Honorary Assistant Surgeon who assisted Defendant No.1. The Defendant No. 3 was the Houseman in charge of the CT Scan department in BH.
2. The Plaintiffs’ case is that the original Plaintiff No.2 suffered from cancer since July 1977. She was under the treatment of one Dr. J.C. Paymaster in BH up to 1988 when Dr. Paymaster retired from BH. She initially had breast cancer. She was operated upon for breast cancer in 1977. She thereafter suffered lung cancer in 1984. She was given the treatment of chemotherapy also under Dr. Paymaster in Mumbai. She was also treated for cancer in New York, USA in 1985. She was given hormonal therapy and chemotherapy treatment by certain two Doctors in New York, USA. It is the Plaintiffs’ case that she was declared to be an inoperable case of cancer. In about 1987 she suffered cervical cancer. After receiving the aforesaid treatments she returned to Bombay. She had vaginal bleeding. Defendant No.2, who initially assisted Dr. Paymaster, knew her case. He advised her to be immediately hospitalized.
3. It is the Plaintiffs’ case that Plaintiff No.1 then served as IAS Officer with the Government of Rajasthan. He admitted her to BH in first class. He desired the services of Defendant No.1 who had then stepped into shoes of Dr. Paymaster and was the head of Oncology department. He was informed that Defendant No.1 would separately charge his fees as per the schedule of BH and that other Doctors attached to Defendant No.1 will assist Defendant No.1 and will also charge fees according to the schedule of BH. The original Plaintiffs accepted and agreed to those terms. The Plaintiffs claim that consequently a valid contract was entered into between BH and the original Plaintiffs being Plaintiff No.1 and the original Plaintiff No.2.
4. Accordingly the original Plaintiff No.2 was admitted to BH. Defendant No.1 examined her and advised Exploratory Laprotomy. Certain investigations and tests were conducted upon his instructions.
5. It is the case of the Plaintiffs that it was agreed between Defendant No.1 and the then Plaintiffs that Defendant No.1 will himself operate upon Plaintiff No.2. The original Plaintiff No.2 was admitted on 8th December 1987. Defendant No.1 advised Exploratory Laprotomy on 17th December 1987. The date of operation was fixed on 22nd December 1987 by Defendant No.1. It is the case of the Plaintiffs that it was made clear that only Defendant No.1 should operate and that Rajasthan Government would pay the necessary fees. It is their case that consent was given by original Plaintiff No.2 for the surgery to be performed by Defendant No.1. It is the Plaintiffs’ case that but for the agreement and understanding between the then Plaintiffs and Defendant No.1 she would not have consented to the operation.
6. The Plaintiffs accordingly contend that there was an agreement between the then Plaintiffs and Defendant No.1 in consideration of the fees to be charged by Defendant No.1 for performing the surgery upon the original Plaintiff No.2 and for all post operation treatment thereafter. The Plaintiffs contend that the original Plaintiff No.2 gave her consent on 17th December 1987 in the name of Defendant No.1 for the surgery to be performed upon her by Defendant No.1.
7. It is the Plaintiffs’ case that despite the contract between the then Plaintiffs and Defendant No.1, Defendant No.1 failed and neglected to operate upon the original Plaintiff No.2 and accordingly committed a breach of the contract by nonperformance.
8. It is the case of the Plaintiffs that th
