IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 1 of 2001 Decided on : 6th November, 2009 State of HP …Appellant. Versus Rangi Ram and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Naveen Bharadwaj, Advocate for respondents No. 1 to 5. Surjit Singh, Judge (Oral) This regular first appeal by the State is directed against the judgment and decree dated 24.3.1999 of learned Additional District Judge, Shimla, whereby a suit for damages, filed by respondents Rangi Ram and his sons and daughters, namely Prem Chand, Kamla Devi, Master Vasudev and Master Amar Chand, against the State and three of its doctors, impleaded as proforma respondents, has been decreed and a decree for a sum of Rs.1,50,000/-, with costs and interest @ 6% per annum, has been passed. 2. Facts relevant for the disposal of the appeal may be noticed. A suit was filed by respondents Rangi Ram and others, hereinafter referred to as plaintiffs, seeking damages to the tune of Rs.2,15,000/-, together with interest @ 12% per annum, against the appellant and prorforma respondents, Whether reporters of the local papers may be allowed to see the judgment? …2… on account of the death of Smt. Ram Pyari wife of respondent Rangi Ram and mother of the rest of the respondents, allegedly on account of negligence on the part of proforma respondents, while performing tubectomy operation of said Ram Pyari. 3. Admitted facts are that Ram Pyari, aged about 35 years, was the wife of respondent-plaintiff Rangi Ram and mother of the rest of the respondents. On 16th October, 1989, a Family Planning Camp was organized at Civil Dispensary, Kuthar in Solan District, where tubectomy operations were conducted. On being persuaded by a Health Worker Krishan Chand, deceased Ram Pyari also went to Civil Dispensary, Kuthar, for operation. She was taken to operation theatre around 1.30 p.m. When the operation was being conducted, her blood pressure and pulse rate went down, all of a sudden, and she became unconscious. She was kept in the operation theatre till very late in the evening and efforts were made to bring her back to consciousness, but without success. She was then shifted to District Hospital, Solan, where it was noticed that she had developed cerebral anoxia. She was kept at District Hospital, Solan, for the night, but there was no improvement. From there she was shifted to Indira Gandhi Medical College-cum-Hospital, Shimla, where she died on 28th October, 1989. She remained unconscious throughout from 16th October to 28th October, 1989. …3… 4. According to the plaintiffs, the cause of death of Ram Pyari was negligence on the part of the doctors, who conducted the operation and gave anesthesia to the deceased. Deceased was stated to be 35 years old and assisting her husband in cultivating the land. The value of her work was stated to be not less than Rs.1000/-. 5. Appellant and proforma respondents denied that they acted negligently while performing the operation. It was stated that only local anesthesia was given to the deceased at the time of operation. It was admitted that she became unconscious and collapsed when still being operated, but when mouth respiration was given to her, she started breathing and after some time she was sent to District Hospital, Solan, from where she was brought to Shimla and admitted to Indira Gandhi Medical College-cum-Hospital. 6. Initially the suit was filed in this Court, because at the time of its institution the upper limit of pecuniary jurisdiction of the Court of District Judge, on original side, was Rs. 2 lacs. Issues were framed when the matter was pending in this Court. The same are as follows: 1. Whether the plaintiffs are the heirs of late Smt. Ram Piari? OPP 2. Whether Smt. Ram Pyari died on account of the negligence of the defendants? OPP 3. If issues Nos. 1 and 2 are proved in the affirmative, to what amount of compensation the plaintiffs are entitled to and from whom? OPP …4… 4. Whether the plaintiffs are entitled to any interest and if so, at what rate and for which period? OPP 5. Whether no legal and proper notice under Section 80 of the Code of Civil Procedure was served upon the defendants by the plaintiffs? OPD 6. Relief. Later on, when the upper limit of pecuniary jurisdiction of the District Judges, on original side, was enhanced, the case was transferred to District Judge, Shimla. 7. Only the plaintiffs adduced evidence. Defendants did not examine any witness. They produced only the photostat copies of the record maintained by the doctors at Family Planning Camp, Kuthar, District Hospital, Solan and IGMC, Shimla. 8. Learned District Judge held that Ram Pyari died on account of negligence of the defendants and awarded damages to the tune of Rs.1,50,000/- with costs and interest @ 6% per annum. 9. I have heard the learned Assistant Advocate General as also the learned counsel for the respondents. 10. The only submission made on behalf of the appellant is that there is no evidence on record, indicative of any negligence on the part of the doctors, who conducted the operation or who provided medical aid and treated the deceased, when she became unconscious during the course of operation. …5… 11. As already noticed, no evidence was led by the defendants. The doctors, who had conducted the operation and given anesthesia to the deceased, were impleaded as defendants. They are proforma respondents in this appeal. None of them stepped into the witness box to testify as to what was the cause of the deceased losing consciousness and collapsing, when being operated upon. The deceased was taken to operation theatre at 1.30 p.m., per testimony of PW-2 Smt. Janki Devi, a sister of the deceased, who accompanied her to the Family Planning Camp. According to the photostat copies of the record, produced by the defendants, which they did not bother to prove, operation started at 2 p.m. and the deceased collapsed, when being operated upon, but was given mouth respiration, due to which she resuscitated. She was kept in the operation theatre till very late in the evening. She was taken to Solan hospital where, as per record, she reached at 9.10 p.m. She was treated for cerebral anoxia, which means a condition in which there is low concentration of oxygen in the brain. She did not regain consciousness at District Hospital, Solan and was, therefore, brought to Shimla on the next following day, early in the morning. Final diagnosis recorded by the doctors at IGMC, Shimla, reads as follows:- “Ischemic/Anoxic Encephalopathy 1. Brain stem death 2. Cortical involvement 3. Coma gr. IV 4. Cardiac arrest.” …6… 12. Before the deceased was taken to operation theatre, her clinical examination was carried out to ascertain whether she was fit to be operated upon and it was found that she was fit for the purpose. When the deceased had been taken to the operation theatre in a fit state of mind and body and during the course of operation she developed cerebral anoxia, it was for the defendants to have explained what was the cause of her developing such a condition. She was administered xylocane (anesthesia) and it is quite likely that the deceased developed cerebral anoxia because of this anesthetic medicine. 13. In the absence of any evidence by the defendants, who were doctors and expert and, therefore, supposed to be knowing what could have been the possible cause of the deceased becoming unconscious and not regaining consciousness till her death, which took place 12 days later, they are liable to be held guilty of civil negligence by invocation of rule of res ipsa loquitur, because as already noticed, the deceased, when taken to the operation theatre, was in a good state of health. 14. In view of the above stated position, I find no merit in the submission made on behalf of the appellant. Consequently, the appeal is dismissed. 6th November, 2009(ss) (Surjit Singh), J.