IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSAs No.212 of 2003 & 197 of 2004 Reserved on : June 29, 2011 Date of decision : July 4, 2011 1. RSA No.212/2003 Dr. Reeta Bharwal versus Krishan Singh and others. 2. RSA No.197/2004 State of H.P. and another versus Krishan Singh and others. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the appellant(s) : Mr. Dilip Sharma, Advocate, in RSA No.212 of 2003. Mr. Rajesh Mandhotra, Deputy Advocate General, in RSA No.197 of 2004. For the Respondents : Mr. Dhruv Shaunak, Advocate, for respondents No.1 to 5, in both the appeals. Mr. Dilip Sharma, Advocate, for Dr. Reeta Bharwal. Mr. Ramakant Sharma, Advocate, for Dr. (Mrs.) Archana Gupta. Mr. Rajesh Mandhotra, Deputy Advocate General, for the State. Deepak Gupta, Judge These two appeals are being disposed of by a common judgment, since they arise out of one Civil Suit. 2. Both the appeals were admitted on the following substantial questions of law: Whether reporters of the local papers may be allowed to see the judgment? Yes. …2… 1. Whether the learned first Appellate Court failed to appreciate that the suit of the plaintiff was beyond the period of limitation and therefore not maintainable? 2. Whether the findings recorded by the learned trial Court as affirmed by the first Appellate Court are dehors the evidence on record? 3. The plaintiffs are the husband and children of late Smt. Sunita Devi. They filed a Civil Suit claiming that they are poor persons and that on 25th January, 1994, Smt. Sunita Devi was admitted in the Zonal Hospital, Nahan, as she was in the family way. It was alleged that she was not looked after in the hospital and that she died due to the gross negligence of Dr. Reeta Bharwal (defendant No.2) and Dr. (Mrs.) Archana Gupta (defendant No.4). 4. The case of the plaintiffs is that on 5th February, 1994 at around 9 p.m., Smt. Sunita Devi developed labour pains and gave birth to a child at 10 p.m. No Gynecologist was present and the delivery was got done by the nurses in the absence of the specialist doctors. Plaintiff No.1, the husband of deceased Sunita Devi apprised the staff present in the hospital, including defendant No.3 Dr. (Mrs.) Archana Gupta, about the critical condition of his wife. Defendant No.3 sent a message to Dr. Reeta Bharwal, but Dr. Reeta Bharwal did not come despite the fact that repeated …3… messages were sent to her and consequently Smt. Sunita Devi died in the morning. The plaintiffs issued notice to the State under Section 80 of the Code of Civil Procedure but to no avail and, therefore, the suit. 5. The State of Himachal Pradesh in its written statement has taken the ground that the suit was time barred. The fact that Smt. Sunita Devi died on the morning of 6th February, 1994 is not denied. 6. Dr. (Mrs.) Archana Gupta was added as defendant lateron and in her written statement she shifted the entire burden on Dr. Reeta Bharwal. It would be pertinent to refer to paras-5 and 6 of her written statement, which read as follows: “5. That in reply to para No.7 of the plaint, it is respectfully submitted that late Smt. Sunita Devi gave birth to a child and she was attended by the replying defendant as a first called doctor on duty. It is further respectfully submitted that the late Smt. Sunita Devi was under the treatment of respondent/defendant No.2. The replying respondent/defendant sent many calls through the attendants to the respondent/defendant No.2 to come to the Labour room and examine the patient and give her treatment as an Expert of the gynecology. But she directed the replying defendant to give certain medicines to the patient, but never visited even once the Labour room to see the condition of late Smt. Sunita and give her specialised treatment. 6. That para No.8 of the plaint, as stated, is not admitted to be correct, hence denied. It is correct that the defendant/respondent No.2 was apprised through telephone about the condition of the patient and also hospital ambulance was sent to bring her but she never …4… came to the Labour room to examine the condition of the patient. She passed the instructions to the replying defendant to arrange for blood start I.V. fluid etc. The replying respondent, in accordance with the instructions made all arrangements but despite the instructions the respondent/ defendant No.2 she never visited the labour room. She was fully apprised by the replying defendant/respondent that all arrangements had/have been made according to the instructions of defendant No.2. Consequently, the replying defendant has never been negligent in the performance of her duties.” 7. A bare perusal of the written statement filed by Dr. (Mrs.) Archana Gupta shows that she was the attending doctor and she sent many calls to defendant No.2 Dr. Reeta Bharwal to visit the hospital and attend to Smt. Sunita Devi. 8. After framing the issues, the parties were called upon to lead evidence. It would be pertinent to mention that a petition, being Civil Revision No.56 of 2000, was filed by Dr. Reeta Bharwal in this Court, in which it was stated that she and her husband being outsiders, she was being falsely implicated in the case by the Chief Medical Officer, Nahan and the other doctors at Nahan. Her case basically was that the suit had been filed by the plaintiff in connivance with the other doctors at the Zonal Hospital Nahan. It would also be pertinent to mention that in said revision petition, this Court, in view of the allegations made by Dr. Reeta Bharwal, came to the conclusion that the other defendants were supporting …5… the plaintiffs and, therefore, directed that the evidence of these defendants be recorded first and only thereafter Dr. Reeta Bharwal be called upon to lead her evidence. 9. The other defendants led evidence but Dr. Reeta Bharwal did not appear in the witness box. The learned trial Court came to the conclusion that the death of deceased Smt. Sunita Devi took place due to the acts of omissions and negligence on the part of Dr. Reeta Bharwal, who being Gynecologist did not come to attend Smt. Sunita Devi, despite the fact that repeated calls were made to her. He held the State vicariously liable for the acts of its employee Dr. Reeta Bharwal. 10. Both, Dr. Reeta Bharwal and State of Himahcal Pradesh, filed appeals before the learned District Judge, Nahan. The learned District Judge dismissed the appeal of the State but in regard to the appeal of Dr. Reeta Bharwal held as follows: “As against Dr. Reeta Bharwal, the impugned judgment and decree are, however, sustainable only partly, since in view of her dereliction of duty, the State of H.P., if so advised, may effect recovery of part of the damages payable, to a reasonable extent, that is, commensurate with the extent of her negligence, in accordance with law. It may also take an appropriate discriplinary action against the other erring doctor, Archna Gupta (defendant No.3). The point under discussion is held accordingly.” 11. Basically, what the learned lower Appellate Court held was that since power supply was missing …6… during the night, no operation could be conducted and Dr. Reeta Bharwal could not have been held solely liable to pay the entire amount. Both, the doctor and the State of Himachal Pradesh, have filed the present appeals. 12. I have heard Mr. Dilip Sharma, learned counsel for Dr. Reeta Bharwal, Mr. Rajesh Mandhotra, learned Deputy Advocate General for the State as well as Mr. Dhruv Shaunak, learned counsel for the plaintiffs. 13. Mr. Dilip Sharma, learned counsel for Dr. Reeta Bharwal, strenuously contended that nothing stands proved against Dr. Reeta Bharwal. He submits that it stands proved on record that there was no electricity and light during the night. Since there was no electricity in the hospital, no operation could be conducted and, therefore, the patient could not be attended. He also submits that plaintiff No.1 Krishan Singh and the deceased had earlier been advised not to conceive another child but despite this they went on to have another baby and, therefore, they themselves were negligent. 14. Mr. Rajesh Mandhotra, learned Deputy Advocate General, contends that the suit itself is not within limitation. He further contends that the findings on the issue of negligence are totally wrong. His last contention is that the learned lower Appellate Court …7… gravely erred in holding the State of Himachal Pradesh alone liable and it wrongly exonerated Dr. Reeta Bharwal. 15. First, coming to the issue of limitation. This suit has been filed within three years of the incident. It was filed on the first day of the opening of the Court after vacation. It was contended on behalf of the State that Article 72 of the Limitation Act is applicable. However, in my view Article 72 of the Limitation Act will only apply where such acts are to be done in consequence of a statutory enactment. This case will not fall under Article 72 but under Article 113 of the Limitation Act. The deceased died on 6th February, 1994 and the suit was filed on 19th February, 1997. There was vacation from January and the Courts reopened on 19th February, 1997. Therefore, the suit is within limitation. 16. The main question, which arises, is as to whether the employees of the State were negligent in performing their duties. The undisputed facts are that Smt. Sunita Devi was admitted to the hospital on 25th January, 1994. It is also not disputed that Dr. Reeta Bharwal was the main Gynecologist and overall Incharge of the Maternity Ward. In fact, when Smt. Sunita Devi was admitted to the hospital, she has herself recorded “Dr. on duty to be informed if pt. goes in labour. H/o Ret. Placenta”. Thus everybody knew that the patient was …8… suffering from a complication. The bed-head ticket Ex. D- 4 has been proved on record. At 11 p.m. on 5th February, 1994, the following note has been entered by the doctor on the bed-head ticket: “Placenta retained. Pt. in shock. Pulse 140/mt. B.P. 80 diastolic not recordable.” Alongwith the aforesaid note, there is a note “Call sent to gynecologist at 11.15 p.m”. It appears that Dr. Reeta Bharwal despite this call did not come to the hospital but telephonically, or otherwise, sent a message with regard to the treatment to be given and thereafter the following note has been appended on the bed-head ticket: “Treatment advised by gynecologist on call given.” This note has been made at 12.05 a.m. on 6th February, 1994. Thereafter, at 1 a.m. there is following note: “G.C. poor. No improvement-condition deteriorating. Call sent to gynecologist again. Gynecologist refused to come as told by Peon Bishan Singh and Midwife Sumitra Devi.” 17. It is also apparent from the bed-head ticket that blood transfusion could not be carried out since there was no electricity in the hospital and, therefore, the tests on blood could also not be carried out. Finally, Smt. Sunita Devi died in the morning on 6th February, 1994 and was declared dead at 6.15 a.m. 18. The aforesaid bed-head ticket itself reflects gross negligence of Dr. Reeta Bharwal, who has taken the …9… Hippocratic oath to serve all patients. The evidence shows the callousness of the doctor. 19. Mr. Dilip Sharma, learned counsel for Dr. Reeta Bharwal, argued that since there was no electricity nothing could have been done at night. This Court is shocked to hear such an argument being addressed on behalf of a doctor. Even if there was no electricity, should not have Dr. Reeta Bharwal come to attend the patient? She was called two-three times at night but she did not feel it proper to attend to a critical patient. 20. Another disturbing aspect of the case is that Dr. (Mrs.) Archana Gupta was not on duty even when the child was delivered. No doctor was present and Dr. (Mrs.) Archana Gupta came to the scene lateron. The delivery took place at 10.20 p.m. and according to Dr. R.K. Sood (PW-2), who conducted the inquiry, Dr. (Mrs.) Archana Gupta was not present at that time. However, Log Book Ex. PW-5/A reveals that a call was sent to Dr. (Mrs.) Archana Gupta at 7.30 p.m. on 5th February, 1994. She came to the hospital from her residence and then went back from the hospital at 8.50 p.m. Dr. (Mrs.) Archana Gupta also did not care to attend the patient till her delivery but atleast she came to the hospital. She again came to the hospital at 11 p.m. and since she was a …10… junior doctor she repeatedly called for Dr. Reeta Bharwal, who did not come at all. 21. Dr. Reeta Bharwal, in her written statement, has given a long explanation but her written statement cannot be accepted as the gospel truth, since she did not care to step into the witness-box to state these facts on oath. In fact her assertion that operation was to be conducted and the Operation Theatre was to be got ready is not borne out from the bed-head ticket. She being the senior doctor should have come to the hospital and if for any reason Smt. Sunita Devi could not have been attended to at Nahan she should have referred her to the Post Graduate Institute of Medical Sciences and Research (PGI), Chandigarh. Merely because there was no light on the night, intervening February 5th & 6th, 1994 is no ground for the doctor not to come to the hospital and attend her patient. The principal responsibility was that of Dr. Reeta Bharwal and I am unable to understand how the learned lower Appellate Court could have held only the State of Himachal Pradesh liable to pay the compensation. The State can only be held vicariously liable for the acts of its employees and once an employee is responsible then both the employee as well as the State have to be held jointly and severally liable to pay the compensation. …11… 22. The learned trial Court had exonerated Dr. (Mrs.) Archana Gupta. The learned lower Appellate Court made some observations against her. Dr. (Mrs.) Archana Gupta had filed a petition, under Article 227 of the Constitution of India, but the same had been withdrawn. However, Dr. (Mrs.) Archana Gupta cannot be fastened with the liability to pay compensation, because being the junior doctor she came to the hospital not once but twice and stayed with the patient. She repeatedly sent messages to the Gynecologist on call to come, who did not come and, therefore, she cannot be held to be grossly negligent. 23. In view of the above discussion, substantial question of law No.1 is answered by holding that the suit is within limitation. As far as substantial question of law No.2 is concerned, it is answered by holding that the learned lower Appellate Court has misread the evidence and in fact misapplied the law of vicarious liability in exonerating Dr. Reeta Bharwal from paying the compensation. In case the State Government has paid the amount, it is entitled to recover the full amount from Dr. Reeta Bharwal, since she alone is grossly negligent and it is on account of her gross negligence that the State Government has been held vicariously liable to pay the compensation. …12… 24. Consequently, the appeal filed by Dr. Reeta Bharwal is dismissed with costs, which are assessed at `5,000/-. The appeal filed by the State is disposed of, in the aforesaid terms, with no order as to costs. Judgment and decree of the learned trial Court are upheld. Both the appeals stand disposed of. July 4, 2011(sd) ( Deepak Gupta ), J