IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.724 of 2007 1. THE STATE OF BIHAR 2. THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA NOW AS THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA 3. THE DIRECTOR-IN-CHIEF, HEALTH SERVICES, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA 4. THE JOINT DIRECTOR, HEALTH SERVICES, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA 5. THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA NOW AS THE PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA 6. THE COMMISSIONER-CUM-SECRETARY, FOOD SUPPLY AND COMMERCE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 7. THE DISTRICT MAGISTRATE, BHAGALPUR … RESPONDENT … APPELLANTS Versus REKHA SINHA, WIDEO OF LATE MADHURENDRA KUMAR SINHA, C/O HARINANDAN PRASAD VERMA, JANKI BALLABH SHASTRI PATH (NORTH OF CHATURBHUJ MANDIR), POLICE STATINO- MUZAFFARPUR, BIHAR with CWJC No.2533 of 2006 1. KAMESHWAR PRASAD SINHA SON OF LATE JAGADAMBI PRASAD 2. SMT. SHUSHILA SINHA WIFE OF SHRI KAMESHWAR PRASAD SINHA BOTH THE RESIDENT OF MOHALLA-HARSH NAGAR, MITHANPURA, P.O.-RAMANA P.S. MITHANPURA, MUZAFFARPUR, DISTRICT- MUZAFFARPUR (BIHAR). .. PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE SECRETARY-CUM-COMMISSIONER DEPARTMENT OF FOOD AND CIVIL SUPPLIES, GOVT. OF BIHAR, OLD SECRETARIATE, PATNA 3. THE JOINT SECRETARY, DEPARTMENT OF FOOD AND CIVIL SUPPLIES, GOVT OF BIHAR, OLD SECRETARAITE, PATNA 4. THE DISTRICT MAGISTRATE, BHAGALPUR, DISTRICT-BHAGALPUR 5. THE SUB-DIVISIONAL OFFICER (CIVIL), BHAGALPUR DISTRICT- BHAGALPUR 6. THE DISTRICT SUPPLY OFFICER BHAGALPUR, DISTRICT- BHGALPUR 7. THE DIRECTOR-IN-CHIEF, HEALTH SERVICES, HEALTH DEPARTMENT , GOVT. OF BIHAR, NEW SECRETARIATE, PATNA 9. THE SECRETARY, FINANCE DEPARTMENT, GOVT. OF BIHAR, OLD SECRETARIATE, PATNA 10. REKHA SINHA, W/O LATE MADHURENDRA KUMAR SINHA, C/O SHRI HARINANDAN PD. VERMA, JANKI BALLABH SHASTRIPATH (NORTH OF CHATURBHUJ MANDIR) MUZAFFARPUR … RESPONDENTS ----------- 2 In L.P.A. No. 724 of 2007 For the Appellant Mrs. Niwedita Nirvikar (G.P.III),Advocate For the respondent :-Mr. Anand Kumar Ojha, Advocate :- Mr. Nityanand Mishra, Advocate In C.W.J.C. No. 2533 of 2006 For the petitioner :- Mr. Nityanand Mishra, Advocate For the State :- Mr. Mayank Rukhaiyar, Ast. Counsel to G.A. III For the private respondent :- Mr. Anand Kr. Ojha, Advocate 7 21.06.2011 The present L.P.A. No. 724 of 2007 arises out of order dated 16.05.2007 passed in C.W.J.C. No. 2533 of 2006 which was filed by one Rekha Sinha, widow of Late Madhurendra Kumar Sinha questioning memo no.2044 (14) dated 17.09.2005 wherein the government has turned down his request for sanction of medical advance for the treatment accorded by the Health Department. The case of the respondent before the learned Single Judge was that her husband was working in Food and Supply Department, Government of Bihar, who was suffering from Blood cancer and was treated in Patna Medical College and Hospital, Patna for eight months and referred to C.M.C. Vellore on 14.04.2005. It was prayed in the writ petition that full payment of the claims supported by the vouchers/bills of Patna Medical College and Hospital, Patna and that of CMC, Vellore along 3 with other claims like journey expenses along with companion and other expenses including compensation for the negligence in treatment to her husband by the Doctor at P.M.C.H should be made. The Writ Petition no.2533 of 2006 was filed by the father-in-law of the present respondent seeking relief of reimbursement of the entire medical claims incurred during the medical treatment of his son, who was suffering from blood cancer and died on 21.08.2005. The said writ petition is tagged with the present L.P.A. Both the matters have been heard together. The writ petition filed by respondent no.5 was opposed by the State stating that there was no negligence on the part of the doctor who attended the husband of the respondent as they tried their level best to provide best treatment to her husband and at her request the patient was referred to C.M.C., Vellore but the patient was died subsequently on 21.08.2005. It has also been contended that the medical reimbursement to the extent of Rs.5,00,000/- has already been paid fully to the daughter-in-law of the present respondent, 4 hence, neither there be any grievance for the respondent to non-payment of medical expenditure nor to seek any compensation for negligence on the part of the doctor. It has also been contended that the writ court cannot go into the question of negligence on the part of the doctor in treating the patient as it is a pure question of fact which can be proved by leading evidence but the respondent has chosen a wrong forum for claiming the compensation by filing a writ petition under Article 226 of the Constitution of India. The learned Single Judge after having heard the matter in extenso, set aside the order passed by the Finance Department with a direction to make full payment of the claims of the petitioner which is supported by vouchers/bill of the Patna Medical College and Hospital and that of CMC, Vellore along with other claims like journey expenses and companion including other expenses as per the establishment procedure. It was also directed by the learned Single Judge that the interest at the rate of 12 per cent per annum from the date the amount becomes due till the date of actual payment shall also be paid. It has also 5 been observed by the learned Single Judge that in view of the gross negligence shown by the consultant oncologist of P.M.C.H. the petitioner shall also be entitled for further amount of Rs.5,00,000/- with interest at the same rate. During the course of argument learned counsel appearing for the State submitted that the amount of Rs.5,67,439/- has already been paid to the present respondent. So far as the direction of the learned Single Judge with regard to payment of Rs.5,00,000/- towards the compensation for the negligence on the part of the doctor at P.M.C.H., the learned Government Pleader has argued that any negligence on the part of the doctor is a pure question of fact which can be proved by leading evidence, and therefore, the respondent has to approach the appropriate forum for claiming the compensation. Learned counsel for the respondent has submitted that father-in-law has claimed the said amount as expenditure on his own pocket, and hence, there was a dispute between the father-in-law and daughter-in-law. So far as other claim of the respondent is concerned, as 6 the State has already paid some lump-sum amount, we do not want to interfere with the order passed by the learned Single Judge. So far as C.W.J.C. No. 2533 of 2006 is concerned, which is filed by the father-in-law for claiming medical reimbursement, we are of the opinion that if the petitioner in C.W.J.C. No. 2533 of 2006 have any dispute with regard to medical reimbursement of the daughter- in- law he may avail the alternative remedy available to him before the appropriate forum. We are also of the opinion that as the learned Single Judge had awarded the compensation of Rs.5,00,000/- for negligence on the part of the doctor at P.M.C.H. which is a pure question of fact which can be proved by leading evidence, the same has to be gone into before the appropriate forum. Under the above circumstances, we set aside the order of learned Single Judge with regard to awarding the compensation of Rs.5,00,000/- for the negligence on the part of the doctor at P.M.C.H. and give liberty to the respondent to avail the alternative remedy available to her under law, if so desires, for claiming compensation. 7 With the above observation, the L.P.A. is accordingly allowed. As we give liberty to the respondent to avail the alternative remedy available under law before appropriate forum, the writ petition is dismissed. Ashwini (T.Meena Kumari,J.) (Akhilesh Chandra, J.)