Case: Philips India Limited Vs. S Kunju Punnu

( 2 ) THE allegations made in the plaint presented in forma pauperis by Kunju Punnu on July 11, 1962 and registered as Special Civil Suit No. 31 of 1963. can be briefly summarised as3 ) THE plaintiffs son, V. K. Gopal was an employee of defendant No. 1 company on a monthly salary of Rs. 105/as a machine operator. Defendant No. 2 is the Medical Officer and Adviser of defendant No. 1 company. Defendant No. 2 as the Medical Officer and Adviser of defendant No. 1 company. Defendant No. 2 as the Medical Officer of the Company had to treat the patients of defendant No. 1 company free of charge. On December 20, 1961 the plaintiffs son, Gopal fell ill suddenly, while he was working in defendant No. 1s factory at Loni kalbhor. Defendant No. 2 treated and advised him to take leave for two days without making a proper diagnosis of the disease from which Gopal was suffering. It was alleged that although the deceased Gopal was suffering from smallpox, defendant No. 2 carelessly treated him as a patient suffering from venereal disease, notwithstanding that Shankar, the brother of the deceased, told defendant No. 2 that Gopal was not suffering from venereal disease, notwithstanding that Shankar, the brother of the deceased, told defendant No. 2 that Gopal was not suffering from any venereal disease. Shankar, who was the driver in the service of the General Manager of the company, told the general Manager assured that he would tell defendant No. 2 to give proper treatment, he failed to tell defendant No. 2 anything of that kind. It is further alleged that as a result of this wrong and negligent treatment and cold. Even then, he was asked by defendant No. 2 to work in the factory and he worked on December 22, 1961. As his temperature increased, he could not continue working. He went to defendant No. 2 asked his advice. Defendant No. 2 advised him to take another two days leave and Gopal continued to be under the treatment of defendant No. 2 though gopal was not suffering from venereal disease. Defendant No. 2 gave very strong treatment and this made the patient worse. Then defendant No. 2 got him admitted in his dispensary on december 25, 1961 at about 11. 30 a. m. kept him there for about 24 hours, but continued to treat him very negligently and carelessly on the basis that Gopal was suffering from venereal decease. Gopal became serious Defendant No. 2 sent him to Dr. Grants Nursing Home. It was, however too late and Dr. Grant finding that it was a case of smallpox, sent Gopal to the infectious disease hospital, where Gopal died on December 31, 1961. It was, therefore, submitted by the plaintiff that her son Gopal died on account of gross and culpable negligence and wrong treatment given by defendant No. 2 and thereby the plaintiff was required to suffer a heavy loss amounting to rs. 25,000/which defendant No. 1 was liable to pay as the employer of defendant No. 2. The plaintiff further claimed damages, in addition to Rs.the amount which the plaintiff was required to pay to Dr. Grant and his Nursing Home, and Rs. 222. 51p. , the amount which she had to spend for purchasing medicines and injections, and remitting Rs. 17. 51 p. she claimed in the suit Rs. 26,000/4 ) THE suit was resisted by both the defendants. In its written statement, Ex. 12, defendant No. 1 company denied its liability to pay any compensation and denied all the allegations made against defendant No. 1 company denied Ex. 12 defendant No. 1 company denied its liability to pay any compensation and denied all the allegations made against defendant No. 1 company and defendant No. 2 and in particular the allegation that defendant No. 1 company and defendant No. 2 and in particular the allegation that defendant No. 2 was an employee of defendant No. 1. In his written statement Ex. 15, No. 2 admitted that he was a permanent Adviser and Consultant in the employment of defendant No. 1 on parttime basis, but denied that the deceased Gopal died of smallpox or that he was under his treatment at the time of the death. According to him, the deceased was not treated by him with gross negligence or carelessness, nor was he treated as a v. D. patient. He contended that as soon as he found that there was rash on the body of the deceased Gopal he immediately consulted Dr. Grant, who was also the Medical Consultant of defendant No. 1 and Dr. Grant advised Gopals brother to get gopal admitted in Session Hospital and it was the deceased Gopals admitted in the Nursing Home of Dr. Grant who in fact, carried out all pathological and other investigations and gave him the best available treatment in Poona. Thereafter, defendant No. 2 was watching the progress of the case. There were signs of improvement, where the patient was removed by his brother and taken to the Nayadu infections diseases hospital and from there to the Cantonment General Hospital, where ultimately he died on December 31, 1961. Defendant No. 2 contended that the deceased hospital and from there to the Cantonment General Hospital. where ultimately he died on December 31, 1961. Defendant no. 2 contended that the deceased Gopal was treated by him as an employee of defendant No. 1 company in accordance with the rules of defendant No. 1 with all due diligence and care and as such neither defendant No. 2 nor defendant No. 1 company was liable to pay any damages to the plaintiff.( 5 ) IN view of these contention the learned Civil Judge framed 15 issues, but the important issue to be decided was whether the plaintiff proved the defendant No. 2 treated the deceased with gross negligence and6 ) ON behalf of the plaintiff, Gopals brother, Shankar, was examined. , The plaintiff also examined Dr. Gupchup a doctor working in the Cantonment General Hospital, where the deceased Gopal was taken on December 29. 1961 at 6. 30m. in aserious condition as a smallpox patient and where he died at 3. 45on December 31, 1961: one Calut Fernandes, who had taken the photos of Gopal at the Cantonment General Hospital on December 31, 1961: one Calut Fernandes, who had taken the photos of Gopal at the Cantonment General Hospital on december 31, 1961: one Calut Fernandes who had taken at 12. 10in December 1961 and from where he was removed to the Cantonment General Hospital at 6 0. m. But as the case papers were in the handwriting of one Dr. Kulkarni, who had left the hospital, he merely stated that the case papers were not signed by Dr. Kulkarni, who had left the Navadu Hospital and joined railway7 ) DEFENDANT No. 2 examined himself and Dr. K. B. Grant, M. D. FC. P. C. of Ruby Hall Nursing home. Poona. The parties also led the documentary evidence of correspondence and papers relating to the service of the deceased and case papers. Ex. 94 is the letter of appointment of Dr. Suleman Shaikh, setting out the conditions of his contract entered into by defendant No. 1 company with him to implement the medical scheme for the benefit of their employees in their factory in Loni Kalbhor, for which purpose they appointed him as their physician and consultant on abasis. The relevant conditions so far as the scheme is concerned were conditions nos. 3, 4, 5, 8 and 9 Condition No. 3 said that be should attend to the staff for medical advice and treatment at the factory at Loni, Poona twice a week as per the provided that the employees would be free to seek medical advice from him at same without any extra fees. Condition No. 5 laid down that in case it was necessary to prescribe costly medicines and drugs, tonics, injections etc. , costing more than Rs. 4/he should obtain necessary approval from Dr. Grant Condition No. 8 his professional discretion, he would visit an employee in need of medical advice at his place for the first time in a spell of sickness and that he would be paid for such a visit separately at the rate of Rs. 3 per visit. Condition No. 9 provided that he should advice on and arrange for hospitalisation and specialist treatment whenever it was necessary.( 8 ) EX. 95 is another letter under which defendant No. 2 was appointed as the permanent physician and consultant on abasis and it reiterated the conditions in the earlier letter. Under these conditions, defendant No. 2 was to draw a monthly honorarium of Rs. 200/and he was not entitled to any other benefit to which the employee of the company of permanent categories of the company of the permanent categories were entitled. In 11, 1959, Ex. 96 the honorarium was described as salary and it was raised to Rs. 300/ct to the other terms and conditions of the9 ) THE learned Civil Judge, by his aforesaid judgment held that the suit was maintainable in the present form against both the defendants, that defendant No. 2 was an employee of defendant no. 1 company on or about the time of the illness and death of the defendant No. 1 company on or about the time of the illness and death of the deceased Gopal and that the plaintiff proved that defendant No. 2 treated the deceased with gross negligence and carelessness. He came to this conclusion, because he was of the view that defendant No. 2 gave a wrong treatment to the deceased which deteriorated the health of the deceased. He further held that the deceased was not removed to Dr. Grants Nursing Home at his own request and the defendants failed to prove that the deceased voluntarily and of his own accord discontinued the treatment of defendant No. 2 and dr. Grant. He was of the view that defendant No. 2 failed to prove that he treated the deceased with such skill, knowledge, competence or diligence as was required or expected from him, and hence he passed the decree on the basis of the normal life of the plaintiff as 80 years.

Reasoning:
12 ) DR. Grant in his evidence stated that on examination he found that Gopal was suffering from bacteraemia Dr. Grant got several pathological tests made in the case. He found that there was rash and red pigmentation on the body of Gopal. In his opinion, the rash could have been due to several conditions, such as bacteraemia,son syndrome viraemia and many other causes. Gopal was in the Nursing Home of Dr, Grant from december 26 to December 28, 1961 as seen by the evidence of Dr. Grant and the case papers produced by him. As the relatives of Gopal were unable to pay the charges of Dr. Grants nursing Home , Dr. Grant discharged him on December 29, 1961 with a note for being given to the authorities in the Sassoon Hospital where Dr. Grants Nursing Home Dr. Grant discharged him on December 29, 1961 with a note for being given to the authorities in the Sassoon Hospital where Dr. Grant was honorary physician and Cardiologist since 1947. He gave the note to remove the patient to the ward assigned to him as the honorary physician and cardiologist since 1947. He gave the note to remove the patient to the ward assigned to him as the honorary of the hospital and of B. J. Medical patient : was improving when he was in his Nursing Home and nobody suggested to him that the patient was suffering from smallpox and there was no epidemic of small pox and there was no epidemic of smallpox and there was no epidemic of smallpox and there was no epidemic of smallpox prevailing in Poona at that time after Gopals removal from his Nursing Home, Dr. Grant never received information or intimation from any hospital that the patient had on attack of smallpox( 13 ) WE are of opinion, having regard to the evidence of Dr. Grant, that Dr. Shaikh Suleman had done all that he could do far Gopal and there was no responsibility on him to look after the patient after he was removed to the Sasoon26 ) IT is, therefore, clear that in any action for negligence against a doctor, as in any other action for negligence, the plaintiff has to prove: (1) that the defendant was under a duty to take a reasonabel care towards the plaintiff to avoid the damage complained of or not to cause damage to the plaintiff by failure to use reasonabel care: (2) that there was a breach of duty on the part of the defendant and (3) that the breach of duty was the legal cause of the damage complained of and such damage was reasonably foreseeable.( 27 ) IT is in the light of the above settled principles governing medical men that we have to decide whether defendant No. 2, in the facts and circumstances of the present case, was negligent. The evidence referred to above of Dr. Gupchup and Dr. Grant and the conditions of employment of defendant No. 2 are most relevant in this connection. The learned Civil Judge disbelieved the uncorroborated allegations made by the plaintiff and her son Shankar that the deceased Gopal was treated by defendant No. 2 as a V. D. patient. The case papers are before the court. Dr. Grant is one of the renowned doctors in Poona, who has been running a busy nursing Home and who is an Honorary to B. J. Medical College and Sassoon Hospital. Even he could not arrive at a clinical finding with regard to the disease from which Gopal was suffering without a detailed pathological test of Gopal. The learned Civil Judge appears to have come to the conclusion that Dr. Shaikh Suleman was negligent, because he did not take proper care to examine Gopal or to find out the real cause of the ailment or to give proper treatment on the basis of the case paper of Gopal, which is at Ex. 81, and the note book maintained by Defendant no. 2, which is at Ex. 87, without due regard to the above principles governing the law of negligence and the proof of such30 ) THE plaintiff has led no expert evidence of any doctor to show that any think that Dr. Shaikh suleman did till this time amounted to the breach of any duty which he owned as a doctor to his patient Gopal. We do not think that the duty cast on the companys doctor in respect to the companys employees is any higher or lower than the duty of an average doctorate towards his patient. There is nothing in the case papers or in the evidence of Dr. Shaikh Sulemeant to show that he treated Gopal as a V. D. patient. No question was asked even to Dr. Gupchup, who was the plaintiffs witness as to whether any treatment given by Dr. Shaikh Suleman would have led to deterioration of the condition of Gopal, or had anything to do with the subsequent diagnosis of the disease asThere is some dispute as to whether Gopal had visited k Dr. Shaikh suleman on December 22, 23 and 24, 1961 and as to whether Shankar was right when he said that Gopal had gone to the doctor on December 22, 23 and 24, 1961 and as to whether Shankar was right when he said that Gopal had gone to the doctor on December 22, 1961 or December 23, 1961. December 24 was a Sunday and it is common ground that gopal had not gone to the doctor on that day. The case papers do not support the statement of Shankar. We do not find any reason to disbelieve Dr. Shaikh Suleman when he said that Gopal had not come to him on december 22, December 23 and December 24,31 ) THERE is also a dispute as to whether Shankar was attending Gopal and as to whether Dr. Shaikh Suleman told him that Gopal was suffering from syphilis as stated by Shankar, here again we are not inclined to believe Shankars evidence with regard to the oral discussion which he had with Dr. Shaikh Suleman having regard to the treatment which Dr. Shaikh Suleman gave to gopal, as shown by the case papers and his subsequent conduct in taking him to Dr. Grants nursing Home, where he was treated from December 26, 1961 to December 29, 1961 by Dr. Grant after pathological test for becteraemia. We do not find anything negligent on the part of dr. Shaikh Suleman in advising his hospitalisation. According to Dr. Shaikh Suleman. Shasnkar suggested that the deceased shoudl be taken to Dr. Grant, assuring that he would meet the expenses. According to Dr. Shajkh Suleman, it was he who suggested that the deceased should be taken to Dr. Grants Nursing Home. Here again, we do not see any reason to disbelieve Dr. Shaikh Suleman and, in any event we do not see how by advising Schenkar to take Gopal to Dr. Grant Dr. Shaikh Sulemen can be held to be33 ) THERE is nothing to show that Shankar or anyone else informed Dr. Shaikh Suleman as to where Gopal was being treated after he was removed from Dr. Grants Nursing Home. We do not think that ea company doctor can be held responsible to a patient if he and his relatives do not care to contract him for advice. It must be, therefore, held that Dr. Shaikh Suleman was not responsible as to what happened to Gopal after he was removed from Dr. Grants Nursing Home. It is also impossible to hold that Dr. Shaikh Suleman could be responsible for anything that happened to the deceased while he was under the treatment of Dr. Grant in his Nursing Home from December 26 to December 29, 1961, when he was discharged. In fact Dr. Grant has categorically stated that he did not allow any outside doctor to see even the case papers of the patient or to interfere with his34 ) WE thus find no evidence whatsoever to show that from December 12. 1961, when Gopal saw. Dr. Shaikh Suleman, according to Dr Shaikh Suleman, till Gopals death, anything has been established against Dr. Shaikh Suleman which can be said to be unreasonable or incompetent conduct on his part in the diagnosis and treatment and care of Gopal. The very fact that Dr. Grant, who is an M. D. F. C. P. S. with 20 years experience and an Honorary to Sassoon Hospital and B. J. Medical College as the Honorarv Physician and Cardiologist since 1947, was not able to diagnose the disease of Gopal asshows that Dr. Shaikh Suleman, who is a general practitioner and a company doctor, cannot be blamed for the error, if any, in his diagnosis of the disease of35 ) MOREOVER, the plaintiff has not led any expert evidence to show that on or before December 25, 1961, any doctor of ordinary skill and competence could have diagnosed the disease of Gopal asor treated him for small pox. On the contrary the evidence given by Dr. Gupchup on the basis of the record relating to Gopal, shows that the type of small pox which unfortunately killed Gopal was haemorrhage small pox which according to Dr. Gupchup, who had experience for some years of the infectious diseases, is fatal. He even admitted that any treatment that was given in respect of such small pox patients did not improve the patients. he also admitted that he had not applied any pathological test for confirming his diagnosis, because the pathological test was not within easy reach for him. he agreed with the grew expressed in Dickson on1962 Edition, that in some patient the fulminating or haemorrhagewas so overwhelming that it may occur within 24 to 36 hours with no outward manifestations at all and that appearance are very indefinite with no findings on which to base a certain diagnosis. There was admittedly no epidemic of small pox in December 1961 in Poona,. It is, therefore, quite possibel that neither Dr. Shaikh Suleman nor Dr. Grant could suspect that Gopal, who had already some previous vaccinations,. could be suffering from small pox because Gopal was in fact not suffering fromIt may be that the fulminating smallpox suddenly appeared on december 29, 1961 after the discharge of Gopal from Dr. Grants Nursing Home. In any event, it can never k be said that any defect or any error in the treatment or diagnosis of Dr. Shaikh suleman had led to any deterioration of the health of Gopal or to the appearance of the fulminatingsmallpox which killedhim. We do not think that in the absence of some expert evidence to show that there was something wrong in the treatment given by Dr. Shanith Suleman on December 25, 1961 and earlier, it is open to the Court to hold that he was guilty of negligence in examining , diagnosing or treating Gopal as long as Gopal was under his care. The plaintiff has also not proved by any evidence on record that the death of Gopal was caused by anything that was done or omitted to be done by Dr. Shaikh Suleman. In the absence of such proof, even assuming that there were some negligence, the plaintiff cannot39 ) IN para. 11 of the judgment, the learned Civil Judge has blamed Dr. Shaikh for not consulting Dr. Grant till late in the evening of December 25, 1961 and for not changing the treatment. though his treatment did not bring about improvement in the condition of Gopal. The learned Judge, in our opinion, was wholly wrong in coming to the conclusion that the treatment which Dr. Shaikh Suleman gave to the patient required to be changed in the facts and circumstances of the case. The only medical witness examined by the plaintiff. Dr. Gupchup, was not asked any question on behalf of the plaintiff as to whether there was anything wrong in the treatment given by Dr. Shaikh Suleman. Dr. Shaikh Suleman maintained that the treatment which he gave was the proper treatment. No question was asked to him as to whether any change was necessary during his treatment. The case papers do not show that Gopal had gone to Dr. Shaiokh Suleman on December 22, and December 23, 1961. It is common ground that he did not go on the 24th, which was a Sunday. In these circumstances, when could Dr. Shaikh Suleman consider the change of any treatment The learned Judge was not justified in holding that merely because Dr. Shaikh Sulemen stated that "after careful examination, he noticed rash on the body of Gopal". meant that he had never carefully examined the patient earlier. That, in our opinion, is not at all fair to a medical mans who says in fact on oath that he had examined and produced the case papers to show that he had started the treatment for the patient. The learned Judge was also wrong in assuming without any basis, that he did not care to know what the disease was, although the treatment which was given by Dr. Shaikh Suleman was of high fever and constipation and he said on oath before the Court that he treats Gopal as having infectious fever and this was supported by the evidence of Dr. Grant who said that Dr. Shaikh Suleman had told him that Gopal was suffering from40 ) THE learned judge has blamed Dr. Shaikh Suleman for not watching the progress or regress of his treatment right from December 12, 1961. The learned Judge was not justified in holding that his treatment was wrong merely because on December 25, 1961, the patient appeared before the doctor with high fever and constipation. It is difficult to understand how the learned Judge could come to the conclusion that merely because Dr. Shaikh gave Dicrysticin injection and subamycin capsules, that the line of treatment required to be changed. There was no evidence on record from which the learned Judge could come a such a41 ) AS stated in the passage from the judgment of Lord Goddard quoted above, it is not for the court o sit in judgment over the treatment which the doctor had given. The doctor had a discretion. It was for the plaintiff to establish by expert evidence that in the circumstances, the doctor should have changed his treatment before the learned Judge could infer that there was something wrong with the treatment. As far as we can infer from the treatment of Dicrvsticin and subamycin we must say that that was considered to be the normal treatment for some years for high fevers. In any event, there is nothing on the record to show that the streptonvicin and penicillin drugs or Subamvcin and penicillin drugs or Subamvcin drugs, which were given for some years to patients, would lead to any deterioration of the condition of the patient. The learned Judge, in our opinion, jumped to the conclusion, that Mr. Shaikh Suleman had acted in a careless manner in treating the patient right from the beginning. without any foundation in the42 ) THE evidence on record, on the contrary, shows that whenever Gopal came to Dr. Shaikh suleman, he gave all treatment which ordinarily a reasonable medical practitioner would give in 1961. It may be that in 1965, when the suit was heard, the treatment might have been different. But, as observed by Lord Denning in one case, it is not possibel to judge the treatment given by dr. Shaikh Suleman in the year 1961 with the medical spectacles of 1965 or later years. We have gone through the entire evidence carefully. We have seen that case papers and we find no reason whatsoever to support the finding of the learned Civil Judge that Dr. Shaikh Suleman was careless in examining, diagnosing or treating Gopal as long as he was under his care and43 ) THE learned Judge in para 12 of his judgment has blamed Dr. Shaikh Suleman (1) for not giving proper history of the patient to Dr. Grant. (2) for not foreseeing the adverse effects of wrong treatment and (3) for trying to whitewash the defects his treatment by describing the disease as ineffective fever. We find no basis for any of these conclusions The learned Judge has relied on a minor discrepancy between the evidence of Dr. Shaikh Suleman and Dr. Grant, with regard to the giving of the history of Gopal to Dr. Grant, for holding that Dr. Shaikh Suleman did not give the history of the patient to Dr. Grant, although both of them say that the history was given. Dr. Shaikh Suleman said that he had personally given the history to Dr. Grant. Dr. Grant said that it was given on the phone. The learned Judge, in our opinion, was not justified in giving importance to this discrepancy having regard to the fact that the two doctors, who are both busy, were giving evidence about the event which had happened nearly four years earlier and if they did not give identical evidence with regarded to the manner in which Dr. Grant was contacted and told by Dr. Shaikh Suleman it was not proper to infer that Dr. Shaikh Suleman could not have given the history of the patient to Dr. Grant before Dr. Grant would commence the treatment though, normally, a doctor, who sends or takes a patient to a consultant, is bond to give such history as the consultant would44 ) MOREOVER, Dr. Grant himself said that the condition and symptoms of Gopal required a through investigation and he did it after several pathological tests to find out the case of the rash and red pigmentation on the body of the patient. He also stated on oath before the Court that the rash could have been due to the several conditions, such as, bacteraemia, Stevens Johnson syndorme. viraemia and many other cause. If that was the position of the patient, it was wrong on the part of the learned trial Judge to blame Dr. Shaikh Suleman merely because he did not give full details of the history to Dr. Grant, who was going to make a thorough investigation by pathological45 ) THE learned Civil Judge, in our view, was wholly wrong in coming to the conclusion that Dr. Grant stated at the trial that he approved of the treatment given by Dr. Shaikh Suleman only to support a fellow doctor, "as Dr. Grant had a soft corner for Dr. Shaikh and had a genuine and sincere desire to help him in his times of difficulty even by making his own position somewhat risky in the Court of law". We think that these remarks of the learned Judge were uncalled for, particularly when the learned Judge himself has observed that Dr. Grant is a very busy and learned doctor and a leading practitioner of Poona and no allegations were made by the plaintiff against Dr. Grant in this plaint and no question was put to Dr. Grant that he had any reason to support Dr. Shaikh Suleman without any regard for46 ) THE inference of the learned Judge that the treatment given by Dr. Shaikh was wrong is as already stated, unfounded and baseless. The further inference of the learned Judge that the serious turn in the case and illness of Gopal must have been due to the treatment given by defendant no. 2, is not only baseless and wholly unscientific but shows a misconception on the part of the learned Judge about the nature of smallpox. There was no evidence of any doctor before the learned Judge to show that smallpox could be caused by any of the medicine which dr. Shaihkh gave to Gopal. Dr. Guphup had stated before the learned Judge that the smallpox which had affected Gopal was haemorrhage smallpox or fulminating smallpox for which there was no known remedy in the science of medicine Vaccination being only the best means of preventine spread of infection though not always the sure means. No medical scientist in the world has yet discovered the cause of smallpox virus: and it is astounding that the learned Judge jumped to the conclusion that the treatment given by Dr. Shaikh Suleman was responsible for the deterioration of the condition of the patient.( 47 ) IT was also perverse on the part of the learned Judge to have come to the conclusion that merely because Dr. Shaikh Suleman said inthat he treated Gopal as suffering from infectious fever and he could not say what type of fever it was, he was trying to white wash his wrong treatment. The learned Judge appears to have had some misapprehension about the nature of infectious fever, which is an expression used at times by doctors in connection with certain kinds of fevers which could nt be specifically diagnosed for some time. In the present case, even Dr. Grant who was certainly an expiration his own line, could not arrive at his conclusions without several pathological tests If, in these circumstances. Dr. Shaikh Suleman stated that it was infectious fever, it was wrong on the part of the learned Judge to hold that he had done so tohis won wrong48 ) IN para 13 of his judgment, the learned Civil Judge has blamed Dr. Shaikh Suleman (1) for not caring to inquire about the health and progress of the patient while the patient was in Dr. Grants Nursing Home (2) for the effort of Dr. Grant to rescue Dr. Shaikh Suleman by stating that it was his practice not to allow anybody to read the case papers, (3) for not seeing Gopal on December 28 and December 29, though Dr. Shaikh Suleman went to the Nursing Home, and for merely getting information from the staff of the Nursing Home with regard to his progress. (4)for trying tothe whole affairs by stating that as Gopal was not under his treatment since the time he was removed to Dr. Grants Nursing Home, he was not responsible for whatever happened to him and (5) for denying all responsibility to the patient after removal of gopal to Dr. Grants Nursing49 ) WE do not think that any of these reasons given by the learned Judge can be considered sufficient to support an inference of negligence on the part of Dr. Shaikh Suleman. In the first place, although the learned Judge has shown great regard for Dr. Grant, he has disbelieved Dr. Grant without any adequate reason when Dr. Grant told in the Court that he never allowed any outside doctor to see the case papers or to interfere with his treatment. Dr. Grant is a doctor high up in the hierarchy of medical profession. Dr. Shaikh Suleman is an L. C. P. S. general medical practitioner. It was wholly wrong on the part of the learned Civil Judge to disbelieve Dr. Grant when he said that it was his practice never to allow any other doctor to see the case papers or to interfere with the treatment in his Nursing50 ) ALL the other reasons given by the learned Civil Judge, therefore, for holding Dr. Shaikh suleman responsible for negligence and carelessness must be considered as totally irrelevant. We do not think that a company doctor has the duty to visit a hospitalised employee, who is being treated by another doctor. There was nothing unusual if Dr. Shaikh Sule man went to the nursing Home and inquired from the staff about the progress of the patient without seeing the patient himself or the temperature chart. It was not necessary for him to see the patient in the nursing Home. No such duty is cast on the company doctor under the terms of his appointment. The learned Judge erred in holding that Dr. Shaikh Suleman was wrong or careless or negligent in denying his liabilities after Gopal was removed to the Nursing Home of Dr.51 ) IN para. 14 of his judgment the learned Judge has blamed Dr. Shajkh (1) for not caring even to ascertain the proximate case of the death of Gopal and (2) for stating that Shankar and Gopal went without informing him to Navadus Infectious Diseases Hospital and to the Cantonment general Hospital. The learned Judge hassane person in general and a person like Shankar who has already spent a lot of amount over his brother in particular, would voluntarily choose to go to such a hospital and the defendants contentions in this behalf are as rediculous as anything and cannot be believed even for a moment. Apart from this, Dr. Shaikh is the Medical Officer of the Defendant No. 1 company and cannot avoid his liability and save his skin simply by saying that he is not responsible because the patient was taken to these hospitals without his knowledge of permission. It cannot also be believed that Gopal was removed or rather decided to be removed to the Session Hospital without the knowledge of Defendant No. 2 and in that case, it is idle for defendant No. 2 to say that his responsibility was over soon after Gopal was removed to the nursing Home or anywherereasoning adopted by the learned Judge, in our opinion, is wholly inconsistent with the principles governing the liability of medical men towards their patient. which have been enunciated above. We do not find any term in the medical scheme of the company which requires the companys doctor to follow the patient irrespective of whether the patient is removed from one hospital to the other without consulting him or without his advice. There is also nothing to show that even if he advised the removal of the patient to a particular hospital, he was required to attend to the patient in the hospital, even though he had nothing to do with the hospital and he had nothing to do with the hospital and he had no control over the patient in the52 ) SHANKAR himself in his evidence has not stated that he took Gopal from Session Hospital to nayadus Infectious Diseases Hospital and form Nayadus Infectious Diseases Hospital to the cantonment General Hospital after informing defendant No. 2. He has clearly admitted in his evidence that since after he left the Nursing Home of Dr. Grant, he could not meet defendant No. 2 till January 4, 1962. The learned Judge was, therefore, wholly unmindful of this admission when coming to the conclusion that it was the duty of Dr. Shaikh Suleman to go and inquire of the patient wherever he was taken , even though neither the patient nor his brother created to inform him about the patients removal to Nayadus Infectious Diseases Hospital and the contonment General Hospital.( 53 ) THERE was nothing unusual if a companys doctor conducted himself fin such a way if the employee or his relatives do not care to inform him about the treatment which they pursue without consulting him. The learned Judge was also wrong in drawing an adverse inference against Dr. Shaikh Suleman merely because Dr. Shaikh Suleman did not come to know about the cause of the death of Gopal in the Cantonment General Hospital on December 31. 1961. It was admitted by Dr. Gupchup that he did not inform Dr. Grant even though it was his duty to inform him. Dr. gupchup did not inform Dr. Shaikh Suleman about the cause of death. Dr. Grant in his evidence maintained that the deceased might not have died of smallpox. Dr. Gupchup admitted that the pathological tests which appear to be the only real scientific tests for finding out smallpox were not available to him. In these circumstances, if a medical man like Dr. Shaikh suleman does not save that he knew about the proximate cause of death, it cannot be considered to be negligence on his54 ) IN para. 15 of his judgment, the learned Civil Judge has again blamed Dr. Shaikh Suleman because; (1) Dr. Gupchup stated that on December 29. 1961, when the patient was brought to the cantonment General Hospital at 6. 30. Gopal wassuffering from smallpox and his condition was serious and the rash appeared in such a case on the third day invesicular type of smallpox and this showed that Dr. Shaikh was careless in not diagnosing the disease of Gopal as smallpox. (2) Dr. Dongare of Nayadus Infectious Diseases Hospital produced the case papers which also showed that the provisional diagnosis was smallpox. (3) Dr. Shaikh Suleman therefore ought to have been able to find out that the disease from which Gopal was suffering was smallpox and (4) Dr. Shaikh Suleman tempered with the case papers and fabricated false evidence to support his version and thereby exposed himself to be a person not mindful about the55 ) THESE reasons are somewhat inconsistent with the earlier reasoning of the learned Judge that a doctor cannot be blamed for a mistake in diagnosis. What is more, the learned Judge went to the extent of saying in a round about way that Dr. Grant was also careless in not finding out what dr. Dongare and Dr. Gupchup could easily find out, namely, that Gopal was suffering from smallpox on December 29, 1961. We must say that this approach adopted by the learned Judge to the two doctors cannot be consistered to be58 ) HAVING regard to this evidence, the Court would ordinarily hesistate to question the diagnosis made by Dr. Shaikh Suleman and Dr. Grant. It was admitted by Dr. Gupchuo that no postmortem examination of Gopal was made. Dr. Gupchup has even admitted in the cross examination: "it is the characteristic of smallpox that rash appears after 72 hours. The rash in all they varieties of smallpox is similar. In the initial stage the rash is not vesicular. I have not heard that preliminary rash also appears in some cases. When I examined the patient I found that there was only one type of rash on his person and it was vesicular. Such rash appears in other discuses also. They are chickenpox. Vesicular rash does not appear in toxic scarlet fever. I have not come across any case of German Measiles, Subamycin belongs to an antiseptic group of drugs. Such a drug could be administered in the case of present nature". Although it is the duty of the Court to judge the negligence of doctors, it is not open to the Court to ignore the evidence on the reocrd and jump to the conclusion without any basis that Dr. Shaikh Suleman or Dr. Grant ought to have been able to find out that Gopal was suffering from smallpox in the facts and circumstances of the59 ) SO far as the finding of the learned Civil Judge in regard to the tampering of the case papers and fabricating false evidence is concerned, we think that it is based entirely on the misreading of the evidence and misapprehension of the duties of a doctor when maintaining record like Ex. 37. Ex. 87 is a note book, which appears to have been written in different hands on different page. The entry in regard to December 25, 1961, December 20, 1961, December 21, 1961, december 25 , 1961, and shows the treatment which he have to him and the complaint a which he ascertained from him. The following appears to have been written in different hand below the entries made by Dr. Shaikh Suleman on December 25,constipation for four days came at 11. 30 a. m. with 104 temp. F. IN the evening I consulted alone with Dr. Grant who advised admissionas I saw rash on the body, his brother took letter from me as he did not want to go elsewhere except Dr. Grant for admission. He was against admission is Sassoonis difficult to understand why these particular entries are regarded by the learned Judge as false and fabricated when it is proved by overwhelming evidence and admitted by Shankar himself that the deceased was kept in the dispensary by Dr. Shaikh Suleman and removed to the nursing Home of Dr. Grant next day, which he could not have done unless he had discussed it with Dr. Grant.( 60 ) THE reason given by the learned Judge for holding that the entries were false and were manipulated afterwards is that all the entries must have been made by Dr. Shaikh Suleman after he came to know that something unusual had happened and the plaintiff was thinking of taking some action in this behalf This surmise on the part of the learned Judges entirely base less. Similarly in Ex. 81, the case paper, although the front page is entirely written by Dr. Shaikh and even on the backside, the entries are made with regard to the treatment by Dr. Shaikh Suleman, some entries are made in acolumn of the case paper not by him. Dr. Shaikh Suleman stated in the course of histhat they were made by his compounded. It is difficult to understand how this alone could lead to an inference that Dr. Shaikh Suleman manipulated and fabricated all these entries with a view to protect himself or to make out a false case to repel the claim of the61 ) IN any event, these entries had nothing to falsify the actual treatment and care which Dr. Shaikh Suleman was expected to give or take in respected of Gopal. These entries could not have led to the deterioration of the health of the patient. As already stated above, in the absence of anything to show that the treatment which Dr. Shaikh Suleman gave to the patient was so defective that a doctor with ordinary skill and competence would not reasonably give such treatment, it was wrong to proceed on the footing that these case papers were fabricated or manipulated by Dr. Shaikh Suleman to protect himself. In our opinion, none of the reasons given by the learned Judge in para 15 is, therefore, relevant or sufficient to draw an inference that Dr. Shaikh Sulemanor Dr. Grant was in any manner negligent in their62 ) IN para, 16 of his judgment the learned Judge, after referring to the passages of Lord nathans book on Medical Negligence, summed up the findings asplaintiff has led oral evidence of the doctors who have actually treated the case and given their definite opinion as well as the actual state of affairs seen by them. The documentary evidence produced on behalf of both the Defendants is more than enough to give a sound support to the case of the plaintiff. The evidence of Dr. Grant appears to have possibly been given by defendant No. 1 mainly with the idea of showing that Dr. Grant has got no concern whatsoever with Defendant No. 1 but at the same time he could not help harming the case of Defendant No. 2 in spite of his honest efforts to save his skin if possible. I have already discussed above the evidence of Dr. Grant as well as the case papers produced by him and it is easy to find that the condition of Gopal was serious on admission. The relevant notices in exhibit 75/1 are taken not by Dr. Grant but by his assistant viz. Dr. Sardesai but the fact remains that Dr. Shaikh had treated Gopal as a patient of flu and he was also brought to him as a patient of flu but on admission, Dr. Grant did not find Gopal as a patient of flu, his diagnosis was, however, a s can be seen from Exhibit 75/3. that Gopal was suffering from acute secondary thrombosis site pririce purpurae infections. Thus, it may be seen that the diagnosis made as well as the line of treatment given by Dr. Shakiikh was neither confirmed nor continued by Dr. Grant and as such his evidence does not help the case or case of Defendant No. 2. On the other hand the case papers produced by Dr. Grant go to show that the case had taken a serious turn and reached an advanced stage and Dr. Shaikh was cognizant of the fact that it had gone out of his control. Similarly, the circumstantial evidence including the conduct of Dr. Shaikh, with regard to the treatment of gopal before as well as after he was removed to and from Dr. Grants Nursing Home, already discussed above, definitely supports the caws of the Plaintiff. All this evidence and circumstances taken together have got the cumulative effect of leading us to the undoubted and irresistible conclusion that Defendant No. 2 was culpably negligent and utterly careless in treating the deceased Gopal and there has certainly been a breach of duty on the part of the companys Doctor".( 63 ) FRO the reasons stated above, the entire reasoning of the learned Judge and the above findings are baseless and unjustified having regard to the nature and symptoms of the disease from which Gopal was suffering and the evidence on record Besides, as already stated above, there is no evidence at all to show that the learned Judge applied his mind to the necessity for the plaintiff to prove, besides negligence the fact that the deceased deteriorated in health or died as a result of that negligence Dr. Gupchups evidence, as discussed above, completely negatives such a fact, as he admitted that no medical treatment exists for haemorrhage cause of the sad and unfortunate death of the deceased64 ) MR. Singhavi has not addressed any arguments before us regarding the liability of defendant no. 2. But we are inclined to agree with the learned Civil Judge that if defendant No. 2 as a Company doctor, was negligent in the discharge of his duties, then defendant No. 1 company also would be liable. Mr. Singahvi however fairly stated that he conceded that as medical officer in the part time service of the company defendant No. 2 was in the employment of defendant No. 1 He wanted us not to deal with the question of the liability of the company in view of our conclusion that defendant No. 2 was not negligent. But we do not think that the question should be left open when this appeal is being heard nine years after it was filed. If we were to come to the conclusion that defendant No. 2 was negligent we would have had no hesitation in holding defendant No. 1 liable for it along with defendant No.too, the question cannot survive in view of our finding that defendant No. 2 was not negligent in the discharge of his duties as a medical officer. Nevertheless the very fact that the plaintiff is still surviving, though the suit was pending for some years in the trial Court and the above appeal is pending in this Court for nine years and her mother died at the age of 80 years, can be a sufficient basis for agreeing with the learned Civil Judge in holding that the longevity of the life which should be given to the plaintiff for the purpose of the suit can be reasonably fixed at 80. There is also nothing unreasonable in the assumption made by the learned civil Judge that if Gopal were to live, he would have sent to the plaintiff, who is ordinarily residing at Kerala with a daughter a sum of Rs. 100On that basis, if at all we were to agree with the learned Judge in holding that defendant No. 2 was guilty of negligence in the discharge of his duties the amount of compensation awarded by him would have been considered to be66 ) HOWEVER, as the plaintiff has failed to prove actionable negligence on the part of defendant no. 2 her suit must be dismissed and the decree passed by the learned Civil Judge must be set aside. Nevertheless, the order passed by the learned Civil Judge for recovering thefrom the plaintiff through the Collector of Poona shall stand. Mr. Singhvi for defendant No. 1 company and Mr. Chitnis for defendant No. 2 did not press for costs.