IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 SA.No. 691 of 1997(G) ------------------------------ AS.216/1994 of ADDL. DISTRICT COURT, KOZHIKODE OS.310/1990 of II ADDL.SUB COURT, KOZHIKODE ..................................................................................... APPELLANTS / RESPONDENTS / DEFENDANTS 1, 2 AND 4 ---------------------------------------------------------------------------------- 1. MATHRUBHUMI PRINTING AND PUBLISHING CO. LTD., REPRESENTED BY THE MANAGING DIRECTOR, K.P. KESAVA MENON ROAD, CALICUT. 2. P.V. CHANDRAN, S/O. P.V. SAMI, PRINTER AND PUBLISHER, MATHRUBHUMI PRINTING & PUBLISHING CO. LTD., K.P. KESAVA MENON ROAD, CALICUT. 3. PREMCHAND, S/O. P. CHANDU, CORRESPONDENT, MATHRUBHUMY PRINTING & PUBLISHING CO. LTD., K.P. KESAVA MENON ROAD, CALICUT. BY ADVS. SRI.T.G.RAJENDRAN SRI.K.PRAVEEN KUMAR RESPONDENT / APPELLANT / PLAINTIFF: ----------------------------------------------------------- DR. JAMES T. ANTONY, S/O. T.V. ANTONY, RESIDING AT POOTHALE, NEAR WEST FORT, TRICHUR TALUK. BY ADVS. SRI.P.VIJAYA BHANU SRI.T.A.UNNIKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON 03/09/2010 DELIVERED THE FOLLOWING: M.N P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 691 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of September, 2010. JUDGMENT The defendants in O.S. 310 of 1990 before the Sub Court, Kozhikode, who are slapped with a decree are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for compensation for defamation. At the relevant time the plaintiff was working as the Director and Professor of Psychiatry and Vice-Principal of Medical College, Calicut. He was the Head of the Department. The complaint is that the first defendant publishing company published a news item in its edition on 24.8.1989, which had a caption as follows: കതവകപ ള സചവ ട ശരരതലകയറയതന “ ""മപന പര ഗ ചകലസ"' . ”” S.A.691/1997. 2 3. The gist of the article is mentioned in the plaint. Since both the courts below have extracted the same, it is unnecessary to narrate it again. Suffice it to say, the claim of the plaintiff is that the above news item and its consequences brought him ridicule and humiliation and he fell in the eyes of the general public. He claimed that he had not treated the patient, about whom reference was made in the article. The article, so far as his role was concerned, was incorrect. He therefore sued the defendants. 4. The defendants resisted the suit. They admitted the publication of the article. According to them, it is after verification that the news item was published. A patient, who was brought to the plaintiff by Dr. Moidu, according to the defendants, was attended to by the plaintiff and he suggested certain treatments. The diagnosis was 'convulsion distress' and in the column diagnosis it was written as 'fecteious disorders' and the medicine was also prescribed to him. The drugs so prescribed is one which is usually recommended for mentally distressed persons. S.A.691/1997. 3 Later on the patient met another doctor, who on taking an X-ray found that there was a broken needle stuck in his limb and that was the cause of pain. The defendants maintained that they only published the truth and they had no intention to malign or defame the plaintiff. No loss of reputation or any injury was caused to the plaintiff by the publication of the article since the publication only narrates what had actually transpired. They therefore prayed for a dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 to 4 and documents marked as Exts.A1 to A3 from the side of the plaintiffs. The defendants had D.Ws. 1 and 2 examined and Exts. B1 to B6 marked. Ext.X1 is the third party exhibit. The trial court on an evaluation of the evidence in the case found that all that had been reported is only what had actually transpired and there is no untruth in any of the facts stated in the article. It was found that it was after making proper enquiry that the news item was S.A.691/1997. 4 published by the defendants in the newspaper. The trial court formed an opinion that after going through the evidence available on record, there was nothing wrong in the news item and it did not suggest the so-called certificate was issued by the plaintiff. The trial court found that it could not be said that the patient was not attended to by the plaintiff. On the basis of these findings, the suit was dismissed. 6. The lower appellate court on the other hand differed with the trial court. It formed an opinion that the article was per se defamatory and then went on to discuss whether proper enquires had been made by the fourth defendant before publication was made. The lower appellate court found that the enquiry made by the fourth defendant to be very unsatisfactory and therefore mulcted the defendants with liability. 7. The said judgment and decree of the lower appellate court is assailed in this appeal. S.A.691/1997. 5 8. The following questions of law are seen raised in the memorandum of Second appeal: “i) Whether the lower appellate court is justified in assessing the evidence of D.W.2 who is an expert in the light of certain observations contained in some text book. ii) Whether the lower appellate court is justified in holding that there was no occasion for the 1st respondent/plaintiff to treat the patient Varkey after 14.2.1989, in the light of the entries contained in Ext.B1. iii) Whether the lower appellate court is justified in holding that there is no negligence on the part of the 1st respondent/plaintiff in admitting the patient Varkey and treated him for mental disorder, when his disorder was subsequently proved to be on account of retention of a broken piece of needle on his body. iv) Whether the lower appellate court is justified in ignoring Ext.B1, the case sheet of the patient, at the hospital, where he was treated by the 1st respondent/plaintiff. S.A.691/1997. 6 v) Whether the lower appellate court is justified in holding that, the entires in Ext.B1 would not lead to a conclusion that the patient was treated for mental disorder. vi) Whether the lower appellate court was justified in holding that the entires in Ext.B1 will only lead to a conclusion that the patient was under the observations of the 1st respondent/plaintiff's unit. vii) Whether the lower appellate court is justified in drawing inferences against Ext.B1 and other documents kept in the hospital. viii) Whether the lower appellate court is justified in deseeting the matters contained in Ext.B1 and accept a few portion of it by rejecting the other.” 9. The gist of the case is that a patient by name Varkey approached Dr. Moidu with severe pain on the upper limb. He had developed fever also. Dr. Moidu, who was unable to diagnose the cause, took the patient to one Dr.Ram Manohar, who was then the Neurologist at Calicut Medical College Hospital. Dr.Ram Manohar examined the patient on 13.7.1989 and found that there was no neuro S.A.691/1997. 7 problems. It seems that he referred the patient to Dr.James Antony, a Psychiatrist, the plaintiff in this case. The patient was accompanied by Dr.Moidu and they went to the house of the plaintiff. As the plaintiff felt that a detailed examination is necessary, the patient was directed to come to the Medical College Hospital on the next day. On 14.7.1989 Mr. Varkey was attended to by the plaintiff, who entrusted one Dr.Rajan, his junior, to take the history of the patient. After sometime Dr.Rajan returned to the plaintiff and stated that nothing more could be discovered than what is mentioned by Dr. Ram Manohar in his letter. Plaintiff is alleged to have recommended narco analysis. As per the records available, it is seen that on 15.7.1989 he again went to O.P. Section and diagnosis was made and medicine was prescribed. Later on it seems that the patient had approached one Dr.Sivasankaran, who on taking X-ray found that a broken needle was seen stuck in his limb and that was the cause for the pain and he referred the patient to Dr. Balachandran of Government Hospital, Manantody, who S.A.691/1997. 8 referred the patient to the Medical College Hospital again. The patient was operated on 21.8.1989 and the needle was removed. The patient was cured. 10. Mathrubhumi daily in its publication dated 24.8.1989 published this news item about the wrong diagnosis made in the Medical College Hospital and the indifferent manner in which patients are attended to. 11. The plaintiff's stand is that the reference in the article that he had examined the patient and had recommended the medicine etc are totally false. He claimed that he had not examined the patient at all. However, he admitted that he had asked his collegue Dr.Rajan to take history of the patient. Dr.Rajan was the Senior House Surgeon attached to the Medical College Hospital. After talking to the patient, Dr.Rajan reported that nothing more could be discovered than what Dr.Ram Manohar had stated. Plaintiff then directed that narco analysis test may be done. According to the plaintiff, these things happened on 14.7.1987. He denied that he had ever S.A.691/1997. 9 seen the patient thereafter and he also denied that the entries on 15.7.1989 in the O.P.ticket produced as Ext.B1 dated 15.7.1989 was made by him or anyone under his instructions. The plaintiff claimed that by going through the article, it would appear that it was he, who had made the wrong diagnosis and prescribed medicines for the patient. He goes on further to say that the article gives an impression that he had given certificate to Dr. Moidu indicating that the patient was mentally sick. According to the plaintiff, the statements in the article are contrary to facts and have been made irresponsibly and without making proper enquiry. 12. As already stated, the trial court found the allegations to be untenable and found that in fact there has been indifference and carelessness on the part of the plaintiff. It also came to the conclusion that there is nothing to indicate that by the article in any defamation has been caused to the plaintiff. However, as already mentioned, the view of the lower appellate court was different. S.A.691/1997. 10 13. The objectionable portion of the article has been extracted in the judgment of the lower appellate court. It is difficult to accept the finding of the lower appellate court that it is per se defamatory. All that the article states is that Sri. Varkey was brought to the plaintiff by Dr.Moidu on 13.7.1989, who told Dr.Moidu and the patient to come in the O.P. Section on the next day in the Medical College Hospital. It is an admitted fact that on 14.7.1989 Mr.Varkey had gone to the O.P.Section of the Medical College Hospital. The plaintiff admits that he had directed Dr.Rajan, the Senior House Surgeon to take history of the patient on that day itself. It is also accepted by the plaintiff that Dr. Rajan came to him and told him that he could not get anything from the patient more than what is stated by Dr. Ram Manohar in his reference letter. Plaintiff admits that he then suggested narco analysis. It is true that the article says that diagnosis was that the patient had hysteria. The article further goes on to say that later Varkey was seen by another doctor, who on perusing the X-ray found that the pain in his limb was S.A.691/1997. 11 caused due to a broken needle left in his limb while taking injunction. The needle was removed and the patient was cured. 14. The article also says that some persons contacted Dr.Moidu and he threatened them saying that he had a certificate saying that Varkey is mentally unsound. 15. The claim of the plaintiff is that it would appear from a reading of the article that the certificate was issued by him, which was readily accepted by the lower appellate court. One fails to understand how such a conclusion can be drawn. There is nothing in the evidence showing that there was any suggestion by the publishers that it was the plaintiff who had issued the certificate, even assuming there was one. 16. The classic definition of a defamatory statement is one 'which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule'. The words used tend to lower the claimant in the estimation of right-thinking members of society S.A.691/1997. 12 generally. It is not necessary that the meaning of the statement complained of is readily ascertainable. The initial question is whether the statement complained of are capable of bearing a defamatory meaning. It is well settled that the whole statement must be looked at, not merely that part which the claimant alleges to be defamatory. A statement made become defamatory because the specific facts known to the reader give to the statement a meaning other than, or additional to, its ordinary meaning. 17. The role of the court is to decide whether the statement is capable of bearing a defamatory meaning, whether in its normal meaning or by innuendo. The trial of the action should concern itself with the essential issues and the evidence relevant thereto. It is well settled that what holds for the claimant also holds for the defendant. When the defendants plead defence of justification, they must do so in a manner which makes it quite clear what meaning or meanings they seek to justify. For actionable, the defamatory words must be understood to be published of S.A.691/1997. 13 and concerning the claimant. It is not necessary that the claimant should be specified by name. It is sufficient if ordinary sensible people proved to have special knowledge of the facts might reasonably believe that the statement referred to the claimant. 18. D.W.1 has given in detail the enquiries made by him. While the trial court was satisfied, the lower appellate court found it to be unsatisfactory. The lower appellate court found fault with the defendants for not examining Varkey and felt that an adverse inference needs to be drawn. The fourth defendant, examined as D.W.1 has stated about the detailed enquiry made by him. 19. The claim of the plaintiff was that he had not examined the patient at all and that he had not diagnosed the patient or prescribed medicine to him. It is not disputed that on 13.7.1989 Dr.Moidu had taken Mr. Varkey to the plaintiff. Since the plaintiff felt that a detailed examination is necessary, he was directed to come to the O.P. on the S.A.691/1997. 14 next day. It is an admitted fact that Varkey did attend O.P. on the next day and that the plaintiff had directed his collegue Dr.Rajan to attend to the patient. 20. According to the plaintiff, there are two units in the Psychiatric department of Medical College Hospital, who attend to O.P. on alternate days. It is admitted by the plaintiff that he had suggested narco analysis. That was on 14.7.1989. Ext.B1 shows that the patient had again come to Medical College Hospital on 15.7.1989. However, plaintiff would say that on 15.7.1989 it was not his O.P. day and it was the O.P. day of the other unit headed by P.W.2. The evidence of P.W.2 is relevant in this regard. P.W.2 had categorically stated that the patient of one unit will not be examined by the doctors in the other unit unless there are compelling and exceptional circumstances and that too will be done only with the permission of the Superintendent of the Hospital. He also stated that in such cases, it is not as if S.A.691/1997. 15 the doctor of the other unit will not be available in the hospital, but only that the members of that unit will not be attending the O.P. on that day. 21. There is no suggestion to P.W.2 that on 15.7.1989, which was the day on which his unit had O.P. duty, any one of his unit members had attended to the patient. In the light of the evidence furnished by P.W.2, the plaintiff cannot simply escape by saying that he did not attend to the patient and does not know who had attended the patient. 22. Going by the evidence of P.W.2, in all probability the patient would have been referred to the plaintiff himself. Evidence of P.W.2 is very clear to the effect that even though the doctors of the other unit will not be attending the O.P., the doctors will have to attend the Medical College Hospital. 23. The evidence of P.W.2 clearly shows that the first and foremost act a psychiatric is intended to perform when a patient comes to him is to conduct a physical S.A.691/1997. 16 examination. It is the primary duty of a Psychiatrist. As already noticed, on 14.7.1989 it was the O.P. duty of the unit headed by the plaintiff. Varkey had come on that day to the hospital. It is strange that without even bothering to physically examine Varkey, he directed Dr.Rajan to take history of the patient. Assuming that it was the preliminary stage and that the Head of the Department will examine the patient physically only after the history is taken, atleast when Dr.Rajan told the plaintiff that he could gather nothing more than what has been stated by Dr.Ram Manohar in his communication, the plaintiff should have taken care to examine the patient physically. It is surprising to note that without even seeing the patient he suggested narco analysis. This is the clear indifference and carelessness on the part of the plaintiff. It could not be said that the plaintiff had nothing to do with the patient. The plaintiff cannot simply disown the entries in the O.P. ticket on 15.7.1989. As already noticed, there is no suggestion to P.W.2 that the entries dated 15.7.1989 was made by him or any member of S.A.691/1997. 17 his unit. It may be true that the entries seen on 15.7.1989 may not be in the handwriting of the plaintiff. But that does not exonerate him. 24. The plaintiff in his deposition stated that he had never treated the patient. He would also say that he had never issued any certificate to Dr.Moidu. However he deposed that by going through the article it would appear that it was he, who had treated the patient and issued the certificate made mention of by Dr.Moidu. P.W.1 however admits that he had perused the communication given by Dr.Ram Manohar and asked the patient to come over to the hospital on the next day. Thereafter he disowned anything to do with the patient. He would however assert that he had not taken the history of the patient nor had he examined the patient. As already stated, it is surprising to note that the patient who had come to meet him and going by the evidence of P.W.2 the first and foremost duty of a S.A.691/1997. 18 psychiatric is to conduct physical examination, P.W.1 did not feet it necessary to do so. It is nothing but indifference and carelessness. 25. Even going by the evidence of P.Ws.1 and 2 it is very evident that a patient of one unit will not be attended to by the doctor of another unit. P.W.1 accepts that if any junior member of his unit treats the patient, the responsibility belongs to him. P.W.1 has stated that on going through Ext.B1 it is seen that admission to the Medical College Hospital or Mental Hospital has been recommended. 26. It has to be stated that the decision of the lower appellate court is based on conjectures and surmises rather than evidence on record. The finding of the lower appellate court that the article is per se defamatory is unsustainable. There is nothing in the article to indicate that it was the plaintiff who had issued the certificate made S.A.691/1997. 19 mention of in the article. The exercise of the lower appellate court was reading into the article things which were not there at all. 27. It could not be said that the defendants had acted irresponsibly and without justification. The blunder committed by the Medical College Hospital has been exposed and that cannot lead to an inference that the article is defamatory. It is strange that a senior doctor of the Medical College Hospital suggested certain medicines without even examining the patient. Recalling the evidence of P.W.2, the first and foremost duty of a Psychiatric is to conduct physical examination. No reasons are given by the plaintiff as to why he did not do so. 28. It is quite interesting to note that soon after the publication he was promoted as Principal of the Medical College Hospital, Kozhikode and there is nothing to show that his reputation had been affected by the publication. Though the plaintiff claims that his practice had been affected, he was unable to produce any proof in that regard. S.A.691/1997. 20 29. I am unable to accept the finding of the lower appellate court and it is felt that the conclusions arrived at by the trial court is to be preferred. Accordingly, this appeal is allowed, the impugned judgment and decree are set aside and the judgment and decree of the trial court are restored. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.