IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

RSA No. 136 of 2017 Reserved on: 01.12.2023 Decided on: 4th December, 2023 The Secretary(Health) and others. .......Appellants Versus Anshika Kumari and another. ...Respondents Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting?1 Yes For the appellants: Ms. Sharmila Patial and Mr.

Navlesh Verma, Addl. AGs For th e respondents: Mr. Neel Kamal Sharma for respondent No.1.

Ms. Shruti Sharma, Advocate, vice Mr. C.S. Thakur, Advocate for respondent No.2.

Tarlok Singh Chauhan, Judge The defendants/appellants after having lost before both the courts below have filed the instant petition.

The parties shall be referred to as the plaintiff and defendants, respectively.

1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

2. Briefly stated the facts of the case are that the plaintiff (minor) was born out of wedlock of Mukesh Kumar and Smt. Neelam. On 14.3.2003, mother of the plainti.ff Neelam was brought to the Zonal Hospital, Hamirpur for the delivery. The proforma respondent Dr. B.D. Dhiman Gynecologist, Zonal Hospital H.P checked her and opined that the delivery was 10 days over than the due date. S he was a complicated case with High Blood pressure. Srhe was admitted in the hospital at Hamirpur for delivery. On 15.3.2003 at about 7.15 P.M, Smt. Neelam gave birth to a child with some complications i.e retained placenta but later on unfortunately died. The plaintiff subseq uently alleged death of her mother Smt. Neelam on account of gross negligence on the part of the doctors and staff nurses including proforma respondent (herein) of the Zonal Hospital, Hamirpur. The plaintiff through her father filed a Civil suit for damages to the tune of Rs. 5,00,000/-.

3. The appellants contested the suit by filing written statement wherein it is specifically contended that there was no negligence on the part of gynecologist or the other doctors and staff nurses of the Zonal Hospital Hamirpur and the patient died natural death because of shock due to vaginal bleeding.

4. The learned trial Court after framing issues and recording evidence decreed the suit of the plaintiff by awarding damages to the tune of Rs. 2,60,000/-alongwith interest of 6% per annum from the date of filing of the suit till the realization of the amount. .

5. Aggrieved by the judgment and decree passed by the learned trial Court, the defendants files an appeal before the learned District Judge, Hamirpur, who vide his judgment and dismissed the appeal with cost s and upheld the judgment and decree passed by the trialr Court.

6. Being aggrieved by the judgments and decrees rendered by the both the Courts below, the defendants have filed the instant appeal.

7 . On 12.4.2013, the appeal was admitted on the following substantial questions of law:

1. Whether learned courts below have failed to appreciate i the law of negligence vis-a-vs the vicarious liabilities of the State in law of Torts?

2. Whether the judgment and decree dated 7.4.2012 passed by the learned Civil Judge (Senior Divison), Hamirpur in Civil Suit No. 126/2007 and dated 8.6.2015 passed by the learned District Judge Hamirpur in Civil Appeal No. 123/2012 stand vitiated by mis-appreciating facts and the law on record.

3. Whether the learned courts below have misread and misconstrued the evidence on record?

8. It would be noticed that substantial questions No. 2 and 3 are practically the same and as regards the question No.1, same essentially will have to be determined alongwith questions No. 2 and 3. Therefore, all these questions being intrinsically interconnected and interconnected ar.e being taken up together for consideration and would be answered by common reasoning.

9. In order to appreciate the contentions as raised in questions No. 2 and 3, one wo uld essentially have to refer to the plaint to find out ars to what exactly is the negligence attributable to the defendants. For this purpose, it would necessary to ref