IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. RFA No.232 of 2001. Judgment reserved on:14.03.2008 Date of Decision: April 04, 2008 State of H.P. & Ors. …Appellants. Versus Shyam Singh …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting?1 Yes For the appellants : Mr A.K.Bansal, Addl.A.G. For the respondent : Mr Onkar Jairath, Advocate. Kuldip Singh, Judge. This appeal has been directed against the judgment, decree dated 4.6.2001 passed by learned District Judge, Hamirpur in Civil Suit No.9 of 1998 decreeing the suit of the respondent / plaintiff for a sum of Rs.3,00,000 along with 9% interest per annum w.e.f. 15.1.1998 if the decretal amount was not paid on or before 31.7.2001. 2. The facts, in brief, are that respondent filed a suit as indigent person for recovery of Rs.5 lacs against appellants / defendants. In the plaint it has been pleaded that on 7.1.1994 the respondent was bitten by a stray dog and, therefore, he was given treatment for dog bite at District 1 Whether reporters of Local Papers are allowed to see the Judgment? Yes …2… Hospital, Hamirpur vide OPD slip No.2144 dated 7.1.1994, the treatment continued up to 12.1.1994. It has been further alleged though the respondent was administered anti rabies treatment by the doctor / staff of the hospital but because of faulty, negligent and wrong treatment at District hospital, Hamirpur the respondent lost sensation and movement of the trunk muscles and of lower limbs. He also lost bowel / bladder control with the result that respondent became paralytic. 3. The medical experts of District Hospital, Hamirpur were repeatedly telling the respondent that he would improve but ultimately the respondent was taken to Christian Medical College / Hospital, Ludhiana where he remained admitted from 26.1.1994 to 14.2.1994 for treatment. The respondent on getting treatment had shown very little improvement of trunk muscles and of sensation but no improvement of bowel / bladder control. 4. The parents of the respondent had spent huge amount on his treatment but all in vain. Now, respondent is completely bed ridden with no movement of lower limbs and control over bowel and bladder motion. The respondent is in paralytic state and a permanent disable person. The staff and doctors of District Hospital, Hamirpur are responsible for the misery of the respondent. 5. The respondent was a brilliant student and had passed middle standard examination in December 1993 in 1st Division. He passed matriculation examination in March 1996 as private candidate in 1st Division. The respondent is not showing any further sign of recovery despite best and continuous treatment. The respondent has lost all hopes and he remains under constant mental tension. The respondent …3… every time requires one or more attendants. The respondent has claimed Rs.5 lacs compensation from appellants under different heads along with interest at the rate of 18% per annum. The learned District Judge allowed the respondent to file the suit as indigent person. 6. The suit was contested by the appellants by filing written statement. It has been admitted that respondent visited the hospital on 7.1.1994 as a dog bite case and vide OPD slip No.2144 dated 7.1.1994 the respondent was administered injection ARV 5 CC subcutaneously on 7, 8, 10, 11 and 12.1.1994. It has also been admitted that respondent was given anti rabies treatment at District Hospital, Hamirpur. There was no fault or negligence in the treatment. The respondent did not complain any problem during his visits in the hospital up to 12.1.1994. He never reported back at District Hospital, Hamirpur after 12.1.1994. The staff, who administered the injections, is fully trained and competent for the job. It has been pleaded that the vaccines may induce neuroparalytic reaction after sixth or seventh injections in 1: 10000 vaccines. The complication which the respondent has suffered is a known complication of the vaccine and was not caused by the negligence in treatment. 7. The respondent filed replication to the written statement of appellants and in the replication he has reiterated his stand which was taken by him in the plaint. On the pleadings of the parties, following issues were framed:- i) Whether the plaintiff is entitled for recovery of Rs.5,00,000/- from the defendants? OPP ii) Relief. …4… The learned District Judge decreed the suit as noticed above. Hence, this appeal. 8. I have heard Mr.A.K.Bansal, learned Additional Advocate General, for the appellants, Mr.Onkar Jairath, learned counsel for the respondent and gone through the record. On behalf of the appellants it has been submitted that the learned District Judge has erred in decreeing the suit of the respondent. The treatment which was given to the respondent was correct. The doctor and staff of District Hospital, Hamirpur who attended the respondent were qualified and were not negligent in giving treatment. The side effect of the medicine injected to the respondent for treatment is rare but is known in the medical science. The appellants cannot be blamed for side effect of the medicine. The pleaded case of the parties and the evidence on record has not been properly appreciated by the learned District Judge in decreeing the suit. The learned counsel appearing for the respondent has supported the impugned judgment, decree and has submitted that admittedly respondent was treated at District Hospital, Hamirpur. The respondent was given faulty treatment at District Hospital, Hamirpur. The respondent is a layman and, therefore, doctors and staff at District Hospital, Hamirpur were expected to take due care at the time of treatment of the respondent and to apprise him the possible side effect of the vaccine and consequences thereof. He has submitted that respondent had complained weakness in the legs after initial injections and that was the time the doctors at Hamirpur should have taken care of the respondent as an expert. He has submitted that the doctors acted …5… negligently and did not take precautionary steps by giving supporting treatment to the respondent and respondent became paralytic due to the negligence of the doctor who attended the respondent at Hamirpur. The learned District Judge has rightly decreed the suit. 9. In order to appreciate the respective contentions of the learned counsel for the parties, it is necessary to refer to the evidence led by the parties. PW-1 Joginder Singh is the father of respondent. He has stated that respondent is his son and is paraplegic below waist. In the year 1994 he was bitten by a dog. He was treated at Government Hospital, Hamirpur. He was given injections of dog bite which caused reaction. He became paraplegic. He was taken to Ludhiana for treatment. There he remained indoor patient for 22 days. There was very little improvement. The doctors at that place told that respondent became paraplegic due to injections of dog bite given to him. Thereafter, the respondent was treated at Chandigarh, Ambala, Vishakhapattnam but there was no improvement in his condition. He had spent about Rs.7 lacs on his treatment. The respondent was quite good in his studies but he could not continue his studies because he became paraplegic. He passed matriculation examination as private candidate by securing 70% marks. The respondent thereafter could not continue his studies. The respondent cannot do anything since he is paraplegic and he is dependant on others. He has engaged a person to look after respondent at Rs.1800 per month. The respondent is not fit for marriage. The injections were given to respondent by Dr.D.N.Sharma at District Hospital, Hamirpur who later on died in road accident. The disability certificate of respondent is Ext.PB. In cross examination, he has stated …6… that 5 injections were injected to the respondent. The respondent was taken to Ludhiana after 15 days of the last injection. He has denied that doctor told that neuro paralytic reaction could be caused due to injections though it is rare. After 12.1.1994, the respondent was taken to District Hospital on 25.1.1994. On that date he was advised to take the respondent to PGI Chandigarh or CMC Ludhiana. On that date the hospital was closed due to holiday. He met Dr.Galoda who gave oral advice to him for taking respondent to PGI Chandigarh or Ludhiana. The respondent had complained of paraplegia 10/12 days after the last injection, before that he was hale and hearty. 10. PW-2 Kuldeep Chand, Work Supervisor, Municipal Committee Hamirpur has stated that death of Dr.D.N.Sharma is not recorded in the death register of the year 1995-96. PW-3 Karamjeet Singh, Junior Assistant, Zonal Hospital, Hamirpur has proved disability certificate Ext.PB of respondent. He has also stated from record that in the anti rabies vaccination register from 15.9.1993 to the year 1996 on 7.1.1994 the name of respondent has been recorded and he was given anti rabies injections on 7, 8, 10, 11 and 12. PW-4 Kanshi Ram has stated that respondent is the son of Joginder. He was bitten by dog and thereafter he cannot move out. He is looking after the respondent since 1994 and he was earlier paid Rs.1000 per month and now he is being paid Rs.1800 per month. The respondent of his own cannot do anything. 11. PW-5 Dr.Suman Sharma has stated that she was the Chairperson of Medical Board constituted to assess the disability of respondent. On medical examination of respondent, his disability was assessed to the extent of 50% qua his legs and copy of disability …7… certificate is Ext.PB. PW-6 Dr.Sunil Kumar Singh, officiating Medical Superintendent, Christian Medical College / Hospital, Ludhiana has stated that he was posted as officiating Medical Superintendent of CMC Ludhiana. Shyam Singh remained under treatment in Christian Medical College / Hospital, Ludhiana. He has brought the record of his treatment, a copy of which is Ext.PW-6/A. He has lost his sensation and muscle power qua his lower half below waist. He has no control of bladder and bowel. This problem has arisen on account of anti rabies vaccine. In cross examination, he has stated that he had not treated Shyam Singh. The anti rabies injection may induce neuro paralytic reaction in one case out of ten thousand cases. He has stated that he cannot say after how many injections, which were injected to respondent, paralysis is caused. Neuro paralysis takes time of about three months from the date of administration of anti rabies vaccine. 12. The respondent was examined on commission and he has stated that in January 1994 he was bitten by a dog, he was taken to Hamirpur hospital by his uncle (Taya). He was given first injection of dog bite on 7.1.1994 and in fact he was administered five injections in all. The OPD slip is Ext.PW-5/A. When injections were administered to him he used to suffer weakness in his legs. He made complaint to the person who used to give injections. The last injection was given to him on 12.1.1994 and after 5/7 days during night he felt pain in the waist and back. In the morning, when he tried to get up he noticed that his lower portion is not working and his movement was stopped. He lost control on his bladder and bowel. He was taken to Government hospital, Hamirpur and Dr.Galoda on duty told him that the hospital was closed due to …8… holiday and he advised him for treatment somewhere else. On this, he was taken to CMC Ludhiana where he was treated from 26.1.1994 to 14.2.1994, but there was not much improvement. He could not continue with his studies and his future has been ruined. He secured first division in 8th and matric. He passed matric as private candidate. He has proved certificates Ext.PW-5/B and Ext.PW-5/C. The doctor and employees of District hospital Hamirpur are responsible for his present condition as they acted negligently. Kanshi Ram has been engaged on payment for his look after. Ext.PB is his disability certificate. In cross examination, he has stated that he met Dr.Galoda on or about 25th of the month. He has denied that no negligence was committed during his treatment. 13. DW-1 Dr.D.R.Sharma, Zonal Hospital, Hamirpur has stated that he is Post Graduate in internal medicine and is working as doctor since 1983. He is medical specialist. He has stated that respondent was given treatment of dog bite at Zonal Hospital, Hamirpur. He is conversant with the treatment of dog bite cases. The dog bite vaccine sometimes causes minor side effects and sometimes major attack like neuro paralysis. This is an immunological phenomena and is bound to occur irrespective of quality, quantity and method of administering vaccine. He has seen prescription Ext.PW-5/A. There is nothing wrong in the prescription regarding the dose of vaccine administered to the respondent. The prescription slip was prepared by Dr.D.N.Sharma, who is no more. 14. The admitted case of the respondent is that he was bitten by stray dog and he was treated at District hospital, Hamirpur vide OPD slip No.2144 dated 7.1.1994 Ext.PW-5/A. It is also not in dispute that …9… respondent was given anti rabies injections on 7, 8, 10, 11 and 12 January, 1994 on the basis of prescription slip Ext.PW-5/A. It is not the case of the respondent that he was not bitten by rabied dog. The question is whether the doctor was negligent in prescribing anti rabies injection vide Ext.PW-5/A on the basis of which respondent was administered ARV 5 CC injections. The connected question whether disability suffered by the respondent on account of paraparesis is attributable to the negligence of the doctor who prescribed injections and of the para medical staff who administered the injections. The Supreme Court in State of Punjab versus Shiv Ram and others, (2005) 7 SCC 1, the Apex Court, in Paragraphs 6 and 7, has observed as follows:- “Very recently, this Court has dealt with the issues of medical negligence and laid down principles on which the liability of a medical professional is determined generally and in the field of criminal law in particular. Reference may be had to Jacob Mathew v. State of Punjab. The Court has approved the test as laid down in Bolam v. Friern Hospital Management Committee popularly known as Bolam’s test, in its applicability to India. The relevant principles culled out from the case of Jacob Mathew read as under: (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.Singh), referred to hereinabove, holds …10… good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage.’ (2) … A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence… (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch …11… which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.” This Court has further held in Jacob Mathew case: “33. Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated (see Black’s Law Dictionary, 7th Edn.). Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence.” 15. Therefore, keeping in view the law laid down by the Supreme Court in State of Punjab versus Shiv Ram and others (supra), it is to be seen whether the respondent has proved the negligence of the doctor in prescribing the medicine to him and of para medical staff in administering ARV 5 CC injections to the respondent. The respondent was bitten by dog on 7.1.1994 and he approached the District Hospital, Hamirpur on 7.1.1994. Dr.D.N.Sharma attended respondent and prescribed him ARV 5 CC injections vide Ext.PW-5/A and those injections were administered to respondent on 7, 8, 10, 11 and 12 January, 1994 as per statement of respondent who was examined on commission read with statement of PW-3 Karamjeet Singh, Junior Assistant Zonal Hospital, Hamirpur. Dr.D.N.Sharma has died as stated by PW-1 Joginder Singh and DW-1 Dr.D.R.Sharma. PW-1 Joginder …12… Singh, father of the respondent, as well as respondent in their statements have not stated that the respondent was not bitten by rabied dog nor they have stated that medicine in the form of injections prescribed by Dr.D.N.Sharma for treatment of respondent was not the right, correct or acceptable medicine for treatment of rabied dog bite case. They have also not stated that correct dose was not prescribed by the doctor for the treatment of the respondent nor it is the case of the respondent that the doctor was not qualified and was not having the expertise to treat the respondent nor they have stated that person who actually administered the injections was not qualified and did not have requisite expertise. The quality of medicine has also not been assailed. 16. The respondent in his statement has stated that he was administered first injection on 7.1.1994. He used to feel weakness at the time of walking in his legs. He disclosed this fact to the person who administered injections to him. The last injection was given to him on 12.1.1994 and after five days he felt pain in his waist and back during sleep and in the morning he could not walk. The respondent has not stated that when he felt weakness in his legs he met the concerned doctor. PW-1 Joginder Singh has not stated that when respondent was being administered injections he complained any weakness in his legs. He has rather stated that respondent complained of paralysis after 10 – 12 days of the last injection and before that the respondent even could play. 17. PW-6 Dr.Sunil Kumar Singh, officiating Medical Superintendent, Christian Medical College / Hospital, Ludhiana has stated that Shyam Singh remained under treatment in Christian Medical …13… College / Hospital, Ludhiana. He has proved on record discharge summary Ext.PW-6/A of Shyam Singh respondent. In his cross examination, he has stated that he had not treated Shyam Singh. He has also stated that he has knowledge about anti rabies vaccine which may induce neuro paralytic reaction in one case out of ten thousand cases. He could not say after how many injections of the vaccine administered to the respondent caused paralysis. He has stated that neuro paralysis takes time of about three months from the date of administration of anti rabies vaccine. 18. DW-1 Dr.D.R.Sharma, after seeing Ext.PW-5/A has stated that there is nothing wrong in the prescription regarding the dose of vaccine administered to the respondent. Dr.D.R.Sharma is medical specialist. He has stated that vaccine sometimes causes minor side effects and sometimes major attack like neuro paralysis. Dr.D.N.Sharma was a qualified doctor and it cannot be said he did not have requisite expertise in treating rabied dog bite cases. Therefore, it cannot be said that Dr.D.N.Sharma negligently prescribed ARV 5 CC injections to respondent for rabied dog bite treatment. PW-6 and DW-1, doctors, have not stated that treatment given by Dr.D.N.Sharma to respondent was wrong. The cumulative effect of statements of PW-6 and DW-1 is that vaccine administered to the respondent is well known medicine for treatment of rabied dog bite case. Therefore, no fault can be found when Dr.D.N.Sharma prescribed five ARV 5 CC injections to respondent for treatment. PW-6 and DW-1 have stated that sometimes the vaccine in question causes neuro paralysis. In other words, in medical field side effect of the vaccine in question is well known. The respondent has not …14… pleaded in the plaint that the doctor at the time of prescribing ARV 5 CC injections did not tell him that in some cases the side effect of these injections is neuro paralysis. It is well known that once rabies set in, it results into hydrophobia which is fatal. In a rabied dog bite case, the option with the doctor is limited, the victim is to be treated with anti rabies vaccine before hydrophobia sets in. Therefore, Dr.D.N.Sharma has committed no wrong, negligence in prescribing ARV 5 CC injections to the respondent. It is bad luck of the respondent that after entire course of ARV 5 CC injections were administered to him, it caused side effect and he became paralytic. In State of Punjab versus Shiv Ram and others (supra), the Hon’ble Supreme Court has noticed the principle culled out from the case of Jacob Mathew that a simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. The respondent and his father have not stated that ARV 5 CC injections prescribed by Dr.D.N.Sharma for treatment of respondent was not acceptable treatment in the medical field on the day ARV 5 CC injections were prescribed by Dr.D.N.Sharma to the respondent. The cause of action for claiming compensation arises on account of negligence of the doctor at the time of treatment and not the ultimate consequence. The ultimate result may be due to natural causes or otherwise known in medical field in some cases due to …15… reaction etc. which is unavoidable in the treatment available on the day. This will not give right to claim compensation. It cannot be said that Dr.D.N.Sharma or the appellants were negligent in prescribing ARV 5 CC injections, five in number, to the respondent. It has also not been proved that person who actually administered the ARV 5 CC injections to the respondent was not qualified or was not having requisite expertise in administering injections. 19. The learned counsel for the respondent, faced with this situation, has submitted that the doctors at District Hospital, Hamirpur were negligent in not giving supporting treatment to the respondent when he complained of weakness in his legs. According to the learned counsel for the respondent, the doctor, being an expert person, should have understood the cause of weakness and resultant side effect after administration of injections to the respondent. The respondent