IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 8-7-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.No.391 of 2003 1.M/s.Soni Hospital 2.Dr.Shashi Ramesh 3.Dr.Anju Soni .. Appellants/Defendants vs 1.Arun Balakrishnan Iyer 2.Meena balakrishnan .. Respondents/Plaintiffs Original side appeal filed under Order XXXVI Rule 1 of O.S. Rules against the judgment and decree dated 17.6.2003 in C.S.No.1345 of 1991. For Appellants : Mr.Nageswaran For Respondents : Mr.P.R.Balasubramanian JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the learned Single Judge made in C.S.No.1345 of 1991 awarding compensation to the extent of Rs.3,35,000/- together with interest. 2.The case of the plaintiffs, who are the respondents herein, is as follows; (a) The first plaintiff is the husband of the second plaintiff. She was admitted in the first defendant hospital on 28.9.1989, for removal of simple ovarian cyst. She was under the care, advice and treatment of the second defendant. The operation was conducted by the second defendant who was duly assisted by the third defendant, on 29.9.1989. During the process of operation, the second defendant came out of the operation theatre and told the first plaintiff that her uterus should be removed immediately to avoid chances of any more surgery in future. He protested to it saying that the consent of his wife should be obtained for removal of uterus. The second defendant pleaded inability to obtain consent as she was under anesthesia, but stated that removal of uterus was imminent and necessary. In such compulsive circumstances, he had no other alternative than to leave it to the discretion and decision of the second defendant. After the operation, the second defendant told him that his wife should not be https://hcservices.ecourts.gov.in/hcservices/ informed about the removal of the uterus from her body as it might adversely affect her recovery and might give her a mental shock. She was discharged on 6.10.1989. After discharge, she was under the treatment of the second defendant. But, she did not become normal, but resulted in severe stomach ache. She was referred to a general physician for 'Colic Pain' and indigestion by the second defendant as in her opinion, she had no gynecological problem. (b) The first plaintiff put his wife under the care, advice and treatment of Dr.Galundiya at Jaipur. As she did not improve, the said Doctor referred her to Dr.S.S.Thambi of Santokhba Durlabhji Medical Hospital at Jaipur. The Doctor suspected intestinal obstruction due to post operative adhesions and advised that she may have to undergo another operation to find out the cause for decline in her health. She was bed-ridden for a long time. The first plaintiff consulted Dr.Junejo of City Nursing Home at Jaipur and then, the Government Ayurvedic College in Bhrampuri, which also did not yield the desired results. They decided to move to Madras. (c) On 26.8.1990, the second plaintiff along with her children flew to Madras. She was admitted in Rakhee Nursing Home at Madras. Despite the efforts of Doctors there, her anemic condition did not improve. Then, she was shifted to City Tower Hospital at Madras and under the care, advice and treatment of Dr.S.Varadarajan. The X-rays and scans did not reveal anything since the foreign material in her body was then covered with intestine and puss. The barium test X-ray revealed enlargement of her intestine. Abscess cavity surrounded by the attachments of intestine was found. Therefore, Dr.Varadarajan advised her to go in for an immediate surgery. Accordingly, a surgery was performed by him on 11.9.1990, when it was discovered that an abdominal pad measuring 12 inches x 12 inches was lying inside her body in the junction of small and large intestines. The same was removed, and it found to contain a label reading "SONI HOSPITAL". Thus, the defendants 2 and 3 have been grossly negligent in conducting operation on her. The second defendant deliberately avoided such diagnostic measures out of fear of exposure. The first defendant is vicariously liable for the negligence of defendants 2 and 3. Hence, they are jointly and severally liable to compensate the plaintiffs for the loss caused to the plaintiffs. (d) Regarding loss on account of the acts of negligence on the part of the defendants 2 and 3, they are liable to pay a sum of Rs.15,00,000/- along with interest to the plaintiffs forthwith. On account of the unwarranted removal of uterus, she has been permanently disabled from further procreatory process, and the first plaintiff is equally deprived of happiness of further procreation. Thus, they valued such invaluable losses caused by the defendants, at Rs.5,00,000/-. Regarding the loss on account of business prospects to the first plaintiff, they estimated the same at Rs.15,00,000/-. Hence, the suit. 3.The suit was resisted by the defendants with the following allegations: https://hcservices.ecourts.gov.in/hcservices/ (a) The present suit is abuse of process of law. The suit is not maintainable as this Court does not have jurisdiction to try and entertain the same. The first defendant is at Jaipur, and the defendants 2 and 3 are permanent residents of Jaipur. The operation was performed at Jaipur, and hence, this Court will not have the jurisdiction to try the suit. (b) The leave to sue granted on 30.4.1991, was ex-parte and without notice to the defendants. The third defendant has been impleaded unnecessarily who did no perform any operation on the second plaintiff. The second defendant is an eminent Doctor, who has been given various awards and medals. It is true that the second plaintiff was admitted in the hospital of the first defendant on 28.9.1989, and she was under the care, advice and treatment of the second defendant. There was a serious cyst of ovary about 4" x 4" in size on the right side. The ovary on the cyst on the left side was unhealthy and looking enlarged. The uterus was bulky, and the second defendant, therefore, concluded that abdominal hysterectomy with removal of both the uterus and ovaries was necessary. Only after explaining all the consequences to the first plaintiff and taking consent, the uterus was removed. It is denied that the first plaintiff protested against the surgery and that the consent of the second plaintiff has to be obtained. There is no question of obtaining the consent of the second plaintiff as she was in general anesthesia. The first plaintiff gave his consent. At the time of discharge from the hospital, the second plaintiff was absolutely fit and fine and had not made any complaint whatsoever. (c) The allegation that abdominal pad remained inside the body of the second plaintiff is false. It is denied that an abdominal pad with a label reading "Soni Hospital" was found inside the body of the second plaintiff and that the same was removed as alleged by them. All due care and precaution was taken while performing the entire surgery by the second defendant. The absolute necessity to remove the uterus was felt by the second defendant only after seeing the condition of the uterus and the ovaries, and the decision to remove them had to be taken at that moment immediately and could not be deferred. The defendants are not jointly and severally liable to compensate the plaintiffs in any manner. The claim made by the plaintiffs is frivolous and misconceived. No cause of action has arisen against the defendants either at Madras or at Jaipur, and hence, the suit was to be dismissed. 4.On the above pleadings, the trial Court originally framed 10 issues. Both the parties were given opportunity to adduce their evidence. The plaintiffs have examined three witnesses and marked Exs.P1 to P21 on their side, and the defendants have examined two witnesses and marked Ex.D1 on their side. The learned Single Judge on trial, awarded the compensation. Hence, this appeal has arisen at the instance of the defendants. 5.The following points would arise for determination in this appeal: https://hcservices.ecourts.gov.in/hcservices/ (a)Whether the trial Court had jurisdiction to try the suit? (b)Whether the plaintiffs are entitled to compensation as awarded? (c)Whether the judgment of the trial Court has got to be set aside for the reasons now urged by the appellants' side? 6.Advancing arguments on behalf of the appellants, the learned Counsel questioning the very jurisdiction of the trial Court, would submit that according to the plaintiffs, the cause of action has arisen within the City of Madras; but, it was not so; that it was neither pleaded in the plaint nor any supportive evidence was adduced; that even P.W.1 has categorically admitted in her evidence that no part of cause of action has arisen within the jurisdiction of the trial Court; and that the learned trial Judge has also referred the same in paragraph 14 of the judgment; but, on the contrary, the trial Court has not rejected the plaint. 7.The learned Counsel pointed out that the trial Court has failed to appreciate the relevant factors namely that there was no pleading that part of cause of action was within the City of Madras; that there was no proof by acceptable documentary evidence that the operation was conducted in a hospital within the City of Madras; that no discharge summary report was filed to prove that the operation of P.W.1 took place in a hospital within the City of Madras; that the admission of P.W.1 that part of cause of action arose within the City of Madras during her cross examination has been rightly extracted by the learned trial Judge in paragraph 14 of the judgment; but, the same has been ignored; that leave to sue was given ex-parte; that it was liable to be contested as a triable issue in the suit, but was ignored by the trial Court; that the trial Court proceeded on the footing that it was one among the issues, and the matter could be taken up for trial, and hence, there was no need to consider it as a preliminary issue; and that the failure to take an application for stay of further proceedings would not deprive the defence of lack of jurisdiction being raised as an issue to be decided by the trial Court. 8.The learned Counsel would further add that in the instant case, even as per the pleadings, the operation was actually done by the second defendant on P.W.1 in the first appellant hospital at Jaipur; that according to the plaintiffs, the negligence was actually committed by the second defendant only at the time of the operation, and thus, they were liable to pay; that if to be so, the alleged acts committed by them, were actually in Jaipur; and that once the claim of compensation was to be made, it should have been before that Court. 9.The learned Counsel would further submit that even assuming as held by the learned trial Judge that the trial Court had jurisdiction, the plaintiffs have miserably failed to prove their case; that the gist of their case was that the negligence was committed by them by placing a pad at the time of the operation, and https://hcservices.ecourts.gov.in/hcservices/ such act of negligence has not only given physical suffering and mental agony to P.W.1, but also given loss of income to the first plaintiff; that now, at this juncture, the Court should have looked forward that in order to prove the act of negligence, the factum of placing the said pad should have been proved; that in the case on hand, the plaintiffs have miserably failed; that according to the plaintiffs, when P.W.3 has done the operation on her, it was found out; that the only document relied on by the plaintiffs and accepted by the trial Court, is Ex.P6; that Ex.P6 is only a letter and it does not contain either the measurement of the pad or the label of the first defendant hospital; that P.W.1 has spoken to the fact that what was shown to her contained the label of the first defendant hospital; but, it was not actually found so as alleged by the plaintiffs; and that the measurements are actually not added by P.W.3 in Ex.P6. 10.According to P.W.3, after the operation was over, he took it in a box to his hospital, brought it back after a few days and handed over; but, the box with the said pad was not produced before the Court; that the photograph was rightly rejected by the trial Court since they were not produced along with the negative; that in such circumstances, the evidence of P.W.3 has not only become unacceptable, but also become thoroughly unbelievable; that it can be shortly stated that the plaintiffs have not proved that at the time of the operation any negligent act was done; that added circumstance was the admission of P.W.1 that after the treatment was given by the first defendant hospital, she had the ayurvedic treatment; that Ex.P13 was actually brought to the notice of the trial Court which would clearly indicate that there was an advice given for placing a swab in the private part, and it was to be removed in the next morning; that it is an admitted fact that such a treatment was actually taken by her; that P.W.3 has categorically admitted that if such a procedure is followed, there was all possibility that the material would have gone inside the intestine, and the material having 12 inches x 12 inches measurement which was actually within the intestine, would have burst within a period of 30 or 40 days; that in the instant case, according to her, it was inside for about 10 or 11 months; that the intervening circumstance is the ayurvedic treatment given to her; that even as per the evidence of P.W.3, there was all possibility that the material what was used during the ayurvedic treatment could have been found; that all would go to show that the plaintiffs have miserably failed to prove their case, and hence, the lower Court should have rejected the case in entirety. 11.After taking the Court to the entire pleadings and also the evidence adduced by the parties, the learned Counsel inter alia made two legal submissions. Firstly, in the instant case, before the trial Court, originally 10 issues were framed, and the parties were called upon to adduce their evidence. Accordingly, the evidence was adduced. Then, both sides were also heard. After hearing the arguments, the trial Court has recast the issues of which the parties were not put on notice, and has further proceeded to consider the evidence already adduced by the parties, on the recast issues and made the judgment which is under challenge. https://hcservices.ecourts.gov.in/hcservices/ 12.The learned Counsel also took the Court to the original issues framed and also the issues recast as found in the judgment and would further point out that a comparison of the issues originally framed and the recast issues would clearly indicate that originally the burden of proof was on the plaintiffs to prove the case; but as per the issues recast, the burden of proof was actually shifted to the defendants to disprove the plaintiffs' case. 13.The learned Counsel would further point out that in the instant case, once the parties originally adduced their evidence on the issues originally framed and thereafter, the arguments were heard and the trial Court has recast the issues where the burden of proof has actually been shifted, it was a case where an opportunity should have been given to the parties to adduce necessary evidence in that regard; but, the trial Court has failed to do so; and that under the circumstances, the defendants have suffered a judgment in the hands of the trial Court. 14.The learned Counsel would submit as second ground that in the instant case, the plaintiffs have made a claim for a specific relief of compensation of Rs.20,67,793.26 as found in Annexure 'A' attached to the plaint; that when the Annexure 'A' is looked into, it does not speak about any claim that is made in respect of the mental agony or suffering which, according to the plaintiffs, was suffered by P.W.1 by the alleged act of negligence committed by the defendants 2 and 3; that it would be quite clear that no claim is made in that regard; but, the trial Court has granted the relief; that the plaint in that regard was also lacking; that the trial Court should not have granted the relief at all; that on those two legal grounds, the judgment of the trial Court has become illegal and infirm, and hence, it has got to be set aside. 15.Contrary to the above contentions, the learned Counsel for the respondents would submit that the judgment of the trial Court has got to be sustained; that as far as the question of jurisdiction was concerned, the leave to sue was granted at the earliest point of time; that the defendants have never sought for any revocation of the leave; but, after appearance, they have filed the written statement; that issues have been framed; that the parties went on trial; that apart from that, they have adduced evidence, and thus, they have submitted to jurisdiction; that now, it would be too late for them to question the jurisdiction of the Court; that as far as the other contentions are concerned, the lower Court has thoroughly marshaled the evidence proper and has come to the correct conclusion that the plaintiffs have proved their case by adducing sufficient evidence both oral and documentary and has rightly not only relied on the evidence of P.Ws.1 and 2, but also the corroborative piece of evidence which was adduced through P.W.3, Dr.Varadharaj, who conducted operation on the second plaintiff at Madras and through whom it has been proved that there was a pad which was actually taken from the intestine of the second plaintiff at the time of the operation, and thus, no better proof could be adduced before the https://hcservices.ecourts.gov.in/hcservices/ Court; that the non-mention of the measurement cannot be a reason to discredit the testimony; that there is no circumstance or reason brought about to disbelieve the evidence of P.W.3, and hence, the trial Court was perfectly correct in coming to the conclusion that the act of negligence on the part of the defendants has caused sufferings and mental agony; and that the lower Court on consideration of the evidence adduced, has awarded compensation. 16.As regards the legal submissions advanced by the learned Counsel for the appellants, the learned Counsel for the respondents would submit that both these contentions have got to be rejected; that as far as the first contention was concerned, it is true that the original issues were recast after the arguments were over; that the parties are unable to show what prejudice has been caused; that the recast issues if compared with the original issues, would clearly indicate that they are exactly the same; that for the convenience sake, the trial Court has recast the issues by which it cannot be stated that any prejudice is caused; that so long as it is not caused, they cannot be allowed to attack the judgment; that under the circumstances, the trial Court was fully satisfied that the evidence which was adduced, was sufficient to decide the recast issues, and hence, that contention has got to be rejected. 17.As far as the next contention was concerned, the learned Counsel would submit that it is true that in Annexure 'A', no particular claim is shown for the mental agony and sufferings which was due to the negligent act of the defendants; but, the entire pleading is based upon those facts; that cause of action is also to that effect; that merely because it is not mentioned in the annexure, the plaintiffs cannot be non-suited; that under the circumstances, that contention has also to be rejected, and hence, the appeal has got to be dismissed. 18.The Court paid its anxious consideration on the submissions made. Without going to the merits or otherwise of the rival contentions put forth, this Court is of the considered opinion that it is a fit case for making a remittal order in view of the two grounds as stated infra. 19.As could be seen above, it was a suit for recovery of compensation for the alleged act of negligence on the part of the appellants. Concededly, the second plaintiff underwent an operation in the first defendant hospital. Thereafter, she was suffering from pain and different ailments which necessitated for further treatment, and following the same, she came down to Madras and underwent an operation which was done by P.W.3. According to the plaintiffs, at the time of the operation done by P.W.3, a pad was found in the intestine. According to them, it was actually placed by the second defendant at the time of the operation underwent by the second plaintiff in the first defendant hospital, and that was the sole reason for the entire sufferings and mental agony. Insofar as the question as to the jurisdiction of the trial Court, the Court has to https://hcservices.ecourts.gov.in/hcservices/ necessarily disagree with the contentions put forth by the learned Counsel for the appellants. It is true that the allegations would indicate that the second plaintiff had the operation in the first defendant hospital in Jaipur during which a pad was placed, and it was the negligent act committed by them. According to the appellants' Counsel, even assuming that the act of negligence was committed and over at Jaipur, the suit should have been filed at Jaipur and no part of cause of action has arisen at Madras for which he also relied upon the evidence of P.W.1. This contention cannot be accepted for more reasons than one. 20.The plaintiffs have sought for the relief in respect of sufferings and mental agony which were the consequences of the said alleged act of negligence by placing the pad by the second defendant at the time of the operation underwent at Jaipur. The said sufferings and mental agony, according to the plaintiffs, continued to exist till the operation was conducted by P.W.3 at Madras. Further, it is true that the act of negligence was actually discovered at Madras. It has also been specifically pleaded as one of the causes of action in the plaint. Hence, the cause of action for the plaintiffs was a continuing one, and the act of negligence came to be discovered at Madras. Till the time, it continued. Further, when the suit was filed in Madras, the leave to sue as asked for, was granted. Concededly, steps were not taken by the defendants to revoke the same. On the contrary, they appeared and filed the written statement. The issues were framed, and the parties went on trial. The defendants also adduced evidence both oral and documentary, and thus, they have subjected to jurisdiction also. After doing so, at this juncture, this Court is of the considered opinion that the appellants cannot be permitted to question the jurisdiction of the Court. Hence, as far as the question as to the jurisdiction of the Court is concerned, the contentions put forth by the appellants' side are rejected, and it is held that the trial Court had jurisdiction to try the suit. 21.As far as the other two contentions are concerned, this Court is able to see sufficient force. It is not in controversy that on the pleadings of the parties, the trial Court had framed 10 issues originally and permitted the parties to adduce their evidence. Accordingly, both the parties have adduced their evidence both oral and documentary. It is also admitted that the trial Court heard the arguments on either side. After the arguments were heard, the trial Court has recast the issues. It is not in controversy that after the recasting of the original issues, both the parties were not put on notice. When the issues originally framed, are recast or issues are added, the parties should not only be put on notice, but also be given an opportunity to adduce evidence if they felt necessary. In the instant