*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal Nos.935 of 2009 & 1282 of 2010 %23.11.2011 #Dr.Madan Mohan and another ..Appellants. Vs. $Md.Abdul Khadir and others. ..Respondents. !Counsel for the appellants : Sri V.Ravinder Rao ^Counsel for Respondents 1 to 7 : Sri Pratap Narayan Sanghi ^Counsel for Respondent No.8 : Smt.S.N.Padmini <Gist : >Head Note: ?Cases Referred: [1] 2005 (5) ALD 52 (SC) 2 (2009) 3 SCC 1 THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal Nos.935 of 2009 & 1282 of 2010 COMMON JUDGMENT: Both the Second Appeals arise out of O.S.No.15 of 2003 filed by the respondents in the Court of Senior Civil Judge, Adilabad. The suit was filed against the appellants claiming damages of Rs.5,00,000/-. The trial Court decreed the suit on 31.07.2007 awarding a sum of Rs.2,50,000/- as compensation. The appellants filed A.S.No.38 of 2007 in the Court of I Additional District Judge, Adilabad, against the decree. The respondents, on the other hand, filed A.S.No.40 of 2007, not satisfied with the amount awarded by the trial Court. Through common judgment dated 23.12.2008, the lower Appellate Court dismissed A.S.No.38 of 2007 and allowed A.S.No.40 of 2007, enhancing the compensation to Rs.4,08,000/-. Hence, these two second appeals. The suit was filed with the following pleadings: Mohsina Sultana was the wife of the 1st respondent and mother of respondents 2 to 7. The appellants are Medical Practitioners, who established a Hospital, by name ‘Ramakrishna Maternity and General Nursing Home’, at Adilabad. On 26.04.2022, the 1st respondent took his wife to Ramakrishna Hospital, complaining that she was suffering from indigestion and was feeling vomiting sensation. The 2nd appellant is said to have examined her and prescribed tests, sonography was conducted and the same revealed that Mohsina was a pregnant of 10 weeks. Other parameters were found to be normal. It is stated that an advise to the effect that it is not in the interests of the patient to continue pregnancy and that tubectomy must be performed after terminating the pregnancy, was tendered and the 1st respondent conveyed his acceptance for the said course of action. On 27.04.2002, operation was conducted and the patient was shifted to the ward at 11.30. However, one hour thereafter, the patient complained of chest pain. The respondents stated that proper care was not taken and when the situation was deteriorating, the appellants asked the 1st respondent to shift the patient to Hyderabad or Nagpur and left with no alternative, he shifted the patient to nearby Government Hospital at 5.30 p.m., since he did not have any necessary means at that time, and one hour thereafter, she expired. Post-mortem was conducted and it revealed that the patient died of heart attack. Opinion from the Osmania Medical College was also said to have been obtained, and that the expert’s opinion revealed that there was no negligence on the part of the Doctors but the cause of death could be the side effects of the drug administered for anesthesia. With these and other allegations, the respondents claimed a sum of Rs.5,00,000/-, as compensation. The appellants filed written statement, admitting the fact that they have treated Mohsina. It was stated that the patient, who was aged 32 years at that time, was already mother of six children and that an advise was tendered for termination of the existing pregnancy. They stated that every possible care was taken, while conducting operation, but suddenly, the patient suffered heart attack, few hours after she was shifted to the ward. They denied their liability to pay any compensation. Sri V.Ravinder Rao, learned counsel for the appellants, submits that the trial Court and the lower Appellate Court recorded findings on various aspects, as though they are expert bodies by themselves, ignoring the post-mortem certificate and the opinion given by the Osmania Medical College. He contends that the fact that the operation was successfully conducted, the patient gained conscious and was normal for hours together and that the complication developed in the form of heart attack thereafter, was totally ignored. He further submits that having regard to the nature of the activities undertaken by the hospital and its bed strength, there is no requirement in law, to provide and maintain a ventilator and still the Courts proceeded on the assumption that the appellants were under obligation to provide ventilator. Learned counsel contends that the observation of the trial Court and the lower Appellate Court that the appellants ought to have anticipated complication, can not at all constitute any part of adjudication, by a Court of law. Learned counsel submits that on account of the negative propaganda and offensive acts resorted to by the 1st respondent, the appellants had not only to discontinue their activity at Adilabad, but also had to sell away the hospital at threw away price. He further submits that the 8th respondent, who is impleaded in the second appeal, is an insurer of the appellants and that the amount, if any, payable by the appellants has to be paid by the 8th respondent. He states that the appellants have taken every possible care, while conducting the operation and that the medical opinion tendered by the Professors of Osmania Medical College, reveals that heart attack was referable to the drug and that the appellants are not at all responsible for the death of the deceased. Sri Pratap Narayan Sanghi, learned counsel for respondents 1 to 7, submits that the operation was conducted upon the wife of the 1st respondent, only after the appellants expressed their opinion and it was their responsibility to ensure that all precautions are taken. He contends that after the operation was conducted, proper care was not taken and when the situation was deteriorating, the appellants insisted that the patient be shifted to other hospital, to escape their liability. Learned counsel further submits that the basic facilities, such as ventilators, were not provided in the hospital and had adequate care been taken, the unfortunate death could have been avoided. He submits that the trial Court, though held the appellants liable for the death, did not award adequate compensation and the lower Appellate Court has enhanced the same, though not up to the satisfaction of his clients. Smt. S.N.Padmini, learned counsel for the 8th respondent, submits that the claim against the insurance company was not submitted within time and the 8th respondent cannot be mulcted with the liability, at this stage. The suit filed by respondents 1 to 7 was the one for damages for the alleged acts of negligence on the part of the appellants in treating Mohsina. The trial Court framed the following issues for its consideration: 1) “Whether the defendants were negligent in conducting operation to Mahasina Sultana and as a result she died? 2) Whether the plaintiffs are entitled for compensation of Rs.5,00,000/- as prayed for?” On behalf of the respondents, PWs.1 and 2 were examined and Exs.A.1 to A.12 were filed. On behalf of the appellants, DWs.1 and 2 were examined and Exs.B.1 to B.13 were filed. The trial Court decreed the suit for a sum of Rs.2,50,000/-. Both the parties were not satisfied with the decree and filed separate appeals. The lower Appellate Court heard the appeals together, and framed the following points for its consideration: 1) “Whether the death of the deceased Mohasin Sulthana is due to the negligence of the defendants? 2) Whether the compensation amount awarded by the trial Court is low? 3) Whether the plaintiffs are entitled for compensation at Rs.5,00,000/- with interest as prayed for? 4) Whether the judgment and decree of the trial Court dated 31.07.2007 needs interference or modification and if so on what grounds and to what extent?” A.S.No.38 of 2007 filed by the appellants herein was dismissed and A.S.No.40 of 2007 filed by the respondents was allowed. The second appeal was admitted by framing the following substantial questions of law: 1) “Whether in the absence of a specific finding about negligence of the doctor in the course of operating the patient for Medical Termination of Pregnancy and tubectomy, can the suit be decreed awarding damages? 2) Whether a doctor can be held to be negligent for not having ventilation facility or for not anticipating a rare occurrence of Mio Cordial Ischemia after Medical Termination of pregnancy land tubectomy surgery? 3) Whether in the absence of any medical or expert evidence to establish that normally doctor anticipate Mio Cordiac Ischemia, in the course of operation for Medical Termination of pregnancy and tubectomy can the court conclude that the doctor is negligent? 4) Whether the principles applicable to Motor Accident Cases be adopted for awarding damages in the case of Medical negligence?” The discussion undertaken in the judgment would cover those aspects. The appellants were running a Nursing Home at Adilabad and the 1st respondent came to their hospital together with his wife, complaining that she was suffering from stomachache and vomiting sensation. The tests and diagnosis undertaken by the appellants reveal that the patient was found to be pregnant of 10 weeks and that her physical condition did not permit continuance of the same. Therefore, they suggested the termination of pregnancy and conducting of tubectomy. With the consent given by the 1st respondent, both the procedures were performed. Certain complications developed after the operation was conducted and the appellants advised the 1st respondent to shift the patient to a specialty hospital, to treat her for heart attack. That did not fructify and ultimately the patient died. The first issue framed by the trial Court was, Whether there was any negligence in conducting of operation leading to the death of the patient. In his deposition, the 1st respondent went to the extent of denying the giving of consent for conducting of the operation. However, he admitted that he gave consent for admission of the patient and for the operation. The consent form, which was marked in Ex.A.4, contains the signature of a relation of the 1st respondent, by name Malan also. The trial Court has simply referred to the factum of death of the deceased, the steps that ensued in the form of registration of case, and conducting of post-mortem and held that though the appellants are not negligent personally, they are vicariously liable. Since they availed the services of one Dr.Dasharath, Anesthetist, even while taking the view that there was fault on the part of anesthetist, neither any expert’s opinion was taken into account, nor the said Dr.Dasharath was made a party to the suit, much less he was examined as a witness. Further, it was not the case of the respondents that the death occurred on account of any negligence on the part of anesthetist. It needs to be noted that the post-mortem report was available by the time the suit was filed, and the cause of death was mentioned therein. Another aspect of the matter is that the respondents did not implead the hospital by its name. It is the hospital that has availed the services of various experts. The appellants by themselves cannot be treated as the whole and sole of the hospital, much less vicarious liability can be fastened upon them. Therefore, the finding of the trial Court on issue No.(1) is not tenable. Coming to the question of quantum of compensation, the trial Court did nothing more than applying the parameters that are referable to the Motor Vehicles Act in determination on motor accidents claims and awarded the amount. For example, he took the income of the deceased as Rs.3,000/- per month, deducting one-third from it, applied multiplier ‘11’ and awarded the compensation. When a suit is filed for damages, the amount to be awarded must be commensurate with the negligence, if any, found on behalf of the defendants, but not with reference to the income of the patient. The whole approach was untenable. The lower Appellate Court has imported its personal knowledge and made several observations. It has gone to the extent of observing that the 1st appellant was not authorized person to conduct sonography. Another observation was that the appellants ought to have arranged for ventilator and resuscitation equipment. Learned counsel for the appellant has placed before this Court, the copy of Alopathic Private Medical Care Establishments (Registration and Regulation) Act, 2002 and Rules, 2007. According to this, the necessity to provide a ventilator arises, only if it is a 100 bed hospital. The bed strength of the hospital established by the appellants is less than 50. Learned counsel for the appellant placed reliance upon the judgment of the Supreme Court in Jacob Mathew v. State of Punjab[1], in support of his contention that the Medical Practitioner can be held liable only when his conduct fell below that of the standards of a reasonably competent practitioner in the field, and that in the instant case, the 1st respondent failed to establish the nature and extent of care that was required to be taken, much less, any deficiency on the part of the appellants was established. Reliance is also placed upon the judgment of the Supreme Court in Martin F.D’Souza v. Mohd. Ishfaq[2]. Learned counsel for the respondents has also cited certain decisions to the effect that the very fact that the patient died, few hours after the operation, can be taken as an instance of negligence. However, since the trial Court and the lower Appellate Court, a) held that the appellants were not negligent by themselves; b) while holding that the negligence was that of anesthetist, but did not ensure that he was not made a party, or was examined as a witness; and c) have simply adopted the principles underlying the Motor Vehicles Act, in determining the compensation; the second appeals deserve to be allowed. At the same time, the fact that the wife of the 1st respondent died soon after the operation, leaving as many as six children of relatively tender age, it is felt that a sum of Rs.2,00,000/- can be awarded as compensation, though not on account of negligence on the part of the appellants, but on humanitarian grounds. Since there exists, a valid insurance coverage for them, the 8th respondent shall be liable to pay the said amount. The Second Appeals are allowed to the extent indicated above. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J. Dated:23.11.2011 L.R. copy to be marked. GJ [1] 2005 (5) ALD 52 (SC) [2] (2009) 3 SCC 1