The main legal point established in the judgment is the application of the principles of medical negligence as defined in the Bolam case and Jacob Mathew case to determine the liability of a professional, in this case, a doctor, for medical negligence.

JUDGMENT :

1. Through the medium of present writ petition, the petitioners besides seeking direction to the respondents to pay compensation to the tune of Rs.20.00 lacs to them against the death of Sh. Jai Kumar S/o Rajinder Parkash, who died due to negligence of respondent No.8, seek issuance of a writ of mandamus directing respondent Nos. 4 to 7 to register a case and investigate the matter and arrest respondent No.8 for his criminal negligence causing death of deceased Jai Kumar.

2. The facts leading to the filing of present petition, as projected by the petitioners in the writ petition, are that the husband of petitioner No.1, father of petitioner No.2 and son of petitioner Nos. 3 and 4, namely Jai Kumar was detected with Gallbladder stone and was admitted to Government Hospital Sarwal on 09.01.2013. On 10th January, 2013, said Jai Kumar was operated upon for removal of stone by laser procedure by respondent No.8, who was then posted as Consultant Surgery in Sub District Government Hospital, Sarwal. According to the petitioners, while conducting surgery, respondent No.8 cut the CBD (Common bile duct) of the deceased Jai Kumar, which was not required. This resulted in serious problem to said Jai Kumar. On 19.01.2013, said Jai Kumar was referred by respondent No.8 to Medical College Hospital, Jammu where he was admitted in Emergency. During hospitalization in Government Medical College, Jammu, said Jai Kumar remained under the treatment of Dr. Sanjay Gupta and various tests were conducted. On 22.01.2013, deceased Jai Kumar was discharged from Government Medical College, Jammu and as per the petitioners, Dr. Sanjay Gupta, who was attending the deceased, advised to go to a private Nursing Home being run by Dr. Anil Singh at Pathankote on the pretext that the laparoscopic system in the Government Medical College was not functioning properly.

3. The deceased was taken home and the family members of the deceased consulted Dr. Manoj, who was posted in Government Hospital at Gandhi Nagar, Jammu, who advised to get the said Jai Kumar admitted in Government Hospital, Gandhi Nagar, Jammu for further tests and treatment. Said Jai kumar remained admitted in Government Hospital, Gandhi Nagar w.e.f. 23.01.2013 to 11.02.2013 and thereafter discharged from hospital. On 14.02.2013, said Jai Kumar died at home. According to the petitioners, deceased Jai Kumar died because of criminal negligence of respondent No.8 and accordingly, the matter was reported to Police but no action was taken. Thereafter a complaint was filed before the learned Chief Judicial Magistrate, Jammu, who directed the Station House Officer, Police Station, Bakshi Nagar to investigate the matter in light of the guidelines laid down in AIR 2005 SC 3180. Thereafter an application came to be filed before the Chief Judicial Magistrate, Jammu seeking a direction to the SHO to file status report. Even application for initiating contempt proceedings against the SHO was filed but all in vain. All this compelled the petitioners to approach this Court to seek necessary action against respondent No.8 as also to seek a direction to the respondents to pay compensation to the petitioners for losing bread earner of their life due to the negligence of respondent No.8, who was working under the control of Government of J&K.

4. On being put on notice, respondent Nos.1 to 3 have filed their reply. Respondent No.8 also filed his objections. It is submitted by respondent Nos. 1 to 3 that on the request of Medical Superintendent, Government Hospital, Sarwal, Jammu vide letter No.SHJ/1871 dated 16.02.2013 to conduct an independent enquiry into alleged negligence during operation on 10.01.2013 by respondent No.8 and subsequent death of the deceased Jai Kumar on 14.02.2013, an Inquiry Committee was constituted by respondent No.2 vide order No.DHSJ/5100/3762-68 dated 01.03.2013. The Inquiry Committee after going through the all available records as well as after recording the statements of various