1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. CIVIL SPECIAL APPEAL (W) NO.134/2002 MANGILAL TAVRI VS. STATE OF RAJASTHAN & ORS. DATE OF ORDER : 25.02.2010 HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. S.D. Vyas, for the appellant. Mr. Y.P. Khileri, Government Counsel. Mr. M.C. Bhoot, for the respondents. This is an intra court appeal filed by writ petitioner of Writ Petition No.371/98 under Section 18 of Rajasthan High Court Ordinance, 1949 against an order dated 6.12.2001 passed by Single Judge. 2. Facts of the case are these. Pursuant to a Welfare Family Planning Scheme introduced by State of Rajasthan, the appellant (writ petitioner) got himself operated for “Vasectomy” on 28.3.93 in Govt. hospital, Pokran. It was performed by Dr. Jetha. Unfortunately, the operation though performed was not successful inasmuch as the condition of appellant after the 2 operation deteriorated and he became unconscious. The other doctors then rushed and saved his life. The State then directed holding of an enquiry to find out the causes that led to such incident. The fact finding enquiry was then conducted under the Chairmanship of Dr. N.S. Fozdar, which consisted other two expert doctors. The committee probed into the causes and by report dated 7.5.94 (Ex.4) opined that there was some negligence of doctor who performed the operation due to which appellant not only became unconscious but also suffered some permanent disability in his body. The committee accordingly recommended that appellant be paid a sum of Rs.63,000/- by way of compensation for the loss suffered as also the expenses incurred in receiving the medical treatment. Unfortunately, despite the recommenda- tions of the committee, the State did not make the payment and hence, the appellant was constrained to file the writ petition, out of which this intra-court appeal arises against the State and its authorities seeking mandamus to make the payment to him of the amount determined by the committee in its report (Ex.4) together with interest. It is this writ petition, which came to be dismissed by learned Single Judge by holding inter alia that negligence of doctor was not proved in performance of operation and hence no relief can be granted to the writ petitioner in terms of awarding any money compensation to the appellant. It is against this order, the writ petitioner has felt aggrieved and filed this intra court appeal. 3 3. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and in consequence while quashing the impugned order, allow the writ of appellant and issue writ of mandamus as indicated infra against the respondents. 4. With respect, we cannot subscribe to the view taken by Single Judge which led to dismissal of writ. It is not in dispute that State Government itself constituted a committee to probe the factual causes that led to failure of operation and came to a conclusion that failure was partly attributable to the doctor who performed the operation. Not only that, the State also recommended payment of Rs.63,000/- to appellant by way of compensation. It was obvious because the State having found some kind of negligence on the part of State doctor, a case of vicarious liability of the State due to wrongful act on the part of their servant was made out thereby entitling the sufferer of such action to claim reasonable compensation for the loss sustained by him. 5. In our opinion, this was not a case where any factual inquiry was called for either in the writ jurisdiction or otherwise to find out the cause as to who was negligent and to what extent? As observed supra, it was already got done by the State of their own in the fact finding inquiry. 6. In our opinion, therefore, the State should have made the payment of the amount so determined in the inquiry to the 4 appellant immediately. We are rather constrained to observe that a genuine case of the appellant who suffered mental pain and disability in his body was made to suffer from 1993 till date and was eventually compelled to file a writ to claim the money against the State. 7. It is a settled principle of law that any action of State dealing with the rights of a citizen once held to be unreasonable or arbitrary, can be quashed by the High Court in exercise of extra ordinary powers available under Articles 226/227 of the Constitution of India. Indeed it is the duty of the State to ensure that welfare and safety of every citizen is taken care of in letter and spirit. That being the constitutional duty of every State. 8. In this case, we have no hesitation in holding that action of the respondent/State in not paying the money to appellant was not only unreasonable but arbitrary as well. A case for issuance for writ of mandamus in the fact of this case is thus made out against the respondent and in favour of appellant. In our opinion, looking to the nature of disability sustained by appellant, the expenditure incurred in post operative operation as determined by State in Ex.4, mental pain and suffering undergone by appellant in last 17 years and lastly the delay caused in not paying the amount, we consider it to be reasonable and proper to award a sum of Rs.1,50,000/- by way of compensation to appellant for such incident. 5 9. Accordingly and in view of foregoing discussion, the appeal succeeds and is allowed, impugned order is set aside. As a consequence, writ petition out of which this appeal arises is allowed. A writ of mandamus is issued against respondents jointly and severally to pay a sum of Rs.1,50,000/- to appellant. It be paid within three months. In case, if the amount of Rs.1,50,000/- is not paid within three months by the respondents, then the amount shall carry interest @ 9% from the date of this order till recovery. We hope that State would not harass the appellant any more and realising its duty towards citizen would ensure making of prompt payment to appellant within the time fixed by this Court along with cost of the writ and appeal which we quantify at Rs.5,000/-. [Dinesh Maheshwari], J. [A.M. Sapre],J. Anil/-