The State is liable for negligence leading to medical malpractice infringing fundamental rights, mandating compensation under Article 21.

1. In these two writ petitions under Art.226 of the Constitution, the petitioners have prayed for directions on the respondents to pay compensation for the damage caused to their eyes at the Dr. B.R. Ambedkar Memorial Hospital at Hapania, in West Tripura.

2. The relevant facts as stated in the writ petitions are that the two petitioners in Civil Rule No. 514 of 1996 were admitted in the hospital on 17.6.1996 and their left eyes were operated by the Medical Officers of the said hospital on 18.6.1996 and they were discharged from the said hospital on 21.6.1996. The petitioner No. 1 in Civil Rule No. 557 of 1996 was admitted in the hospital on 18.6.1996 and his left eye was operated on 19.6.1996 by the Medical Officer and he was discharged on 21.6.1996. The petitioner No. 2 in Civil Rule No. 557 of 1996 was admitted in the hospital on 11.6.1996 and her left eye was operated on 12.6.1996 and she was discharged from hospital on 24.6.1996. The petitioner No. 3 in Civil Rule No. 557 of 1996 was admitted on 12.6.1996, her left eye was operated on 13.6.1996 and she was discharged from the hospital on 26.6.1996. The petitioners have alleged in the two writ petitions that their left eyes which were operated upon were damaged due to infection at the hospital. They have claimed compensation of Rs.2,00,000 each for violation of their fundamental right to life guaranteed under Art.21 of the Constitution of India .

3. At the hearing, Mr. A.K. Bhowmick, learned counsel for the petitioners submitted that the Government of Tripura constituted a committee for investigating into the causes of infection and a report dated 3.7.1996 was submitted by the said committee which would show that it is on account of lapses on the part of the authorities that infection was caused to the eyes of the different patients including the petitioners. He further submitted that the Government constituted another committee which also enquired into the causes of the eye infection of different patients and the said committee submitted a report dated 25.7.1996 in which it was stated that the infection was a result of contamination in the O.T. (Operation Theatre). Mr. Bhowmick vehemently argues that since the eyes of the petitioners were damaged due to lapses of the authorities, the State of Tripura was liable to compensate the petitioners by way of damages. He cited the decision of the Supreme Court in N. Nagenfra Rao & Co. v. State of Andhra Pradesh, AIR 1994 SC 2663 and the decision of Madras High Court in Headmistress, Government Girls High School v. Mahalakshmi , 1999 ACJ 1228 (Mad.), in support of his submission that the State was liable for the negligence of its officers to a citizen who had suffered on account of negligence of such officers. Mr. Bhowmick also relied on the decision of the Karnataka High Court in Pushpaleela v. State of Karnataka, AIR 1999 Kar. 119, in which the court directed the respondents to pay compensation of Rs.75,000 for the loss of one eye in operation held in an Eye Camp. Mr. Bhowmick argued that in the present case the right to life of the petitioners guaranteed under Art.21 of the Constitution has been affected by the State of Tripura and its officers and State of Tripura is liable to pay compensation to the petitioners.

4. In reply, Mr. U.B. Saha, learned Senior Government Advocate, referred to the averment in paras 8, 9 and 10 of the counter - affidavit and the averments in paras 4, 5, 6, 7, 8, 10 and 11 of the additional affidavit filed by the respondent Nos. 1 and 2 and submitted that the petitioners came to the hospital with their l