TMI Blog1996 (2) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... Gynecology as a doctor and it is she who attended on Chandrikabai. Respondent No. 3 was the Medical Officer of the said hospital while respondent No. 4 was the Dean of Medical College, Aurangabad. Chandrikabai delivered a male child on 10th July, 1963. As she had got herself admitted to this hospital with a view to undergo a sterilisation operation after the delivery, the said operation was performed by respondent No. 2 on 13th July, 1963. Soon thereafter Chandrikabai developed high fever and also had acute pain which was abnormal after such a simple operation. Her condition deteriorated further and on 15th July, 1963 appellant No. 1 approached respondent No. 3 and one Dr. Divan, PW-2, who was a well-known surgeon and was attached to the hospital, but was not directly connected with the Gynecological department. At the insistence of appellant No. 1 Dr. Divan examined Chandrikabai on 15th July 1963, and seeing her condition, he is alleged to have suggested that the sterilisation operation which had been performed should be re-opened. This suggestion was not acted upon by respondent Nos. 2 and 3 and the condition of Chandrikabai become very serious. On 19th July, 1963, Dr. Divan, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having left any mop in the abdomen of Chandrikabai and, in the alternative, pleaded, that even if such a mop was left inside the body, the same could not have, either directly or remotely, caused the death. Respondent No. 3 also denied the recovery of the mop from the abdomen and generally supported the case of the other respondents. 5. In view of the pleadings of the parties the Civil Judge framed as many as 11 issues which are as follows : 1. Do plaintiffs prove that the defendant No. 2 performed the operation without due care, attention and caution and in the most negligent manner ? 2. Do plaintiffs prove that a mop was left in the abdomen of the deceased Chandrikabai during the first operation, and if so, do plaintiffs further prove that it was so left as a result of negligence, lack of care and insufficient diligence in the operation performed by defendant No. 2 ? 3. Do plaintiffs prove that as a result of the mop remaining inside the body of Chandrikabai during the first operation by defendant No. 2, a severe pain was caused to her deteriorating her health and that the said mop disturbed the internal organism of the body and resulted ultimately in the dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e trial court did not rely upon the evidence of the experts examined by the respondents because it came to the conclusion that the original documents and case papers had been filed late, some relevant entries had also been tampered with and it was only the typed papers, which were copies of the tampered documents, which were supplied to the respondents' expert witnesses for their opinion. The trial court, while accepting and relying on the evidence of Dr. Divan, also observed that the effort of respondents 2 and 3 was to throw the blame on Dr. Divan. According to them, they had prohibited Dr. Divan from performing the second operation and the said respondents even denied that a mop was recovered from the abdomen of Chandrikabai. The trial court decided all the issues, except issues 5 and 6, in favour of the appellants and passed a decree for Rs. 36,000 against respondent Nos. 1 to 3, but the suit against respondent No. 4 was dismissed. 7. The State as well as the respondents 2 and 3 filed appeals to the High Court. In a marathon judgment of over 300 pages the High Court discussed all the evidence and firstly came to the conclusion that, in law, the Government could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be held to be vicariously liable if it is found that death of Chandrikabai was caused due to negligence on the part of its employees. 10. In State of Rajasthan v. Mst. Vidhyawati and Anr. AIR 1962 SC 933 the question arose with regard to the vicarious liability of the State of Rajasthan, In that case a vehicle owned by the State of Rajasthan, which was being driven by its driver, met with an accident which resulted in the death of one person. The death was caused due to the negligence of the driver. The two contentions of the State of Rajasthan were that under Article 300 of the Constitution, the State would not be liable, as the corresponding Indian State would not have been liable if the case had arisen before the Constitution came into force. Secondly, it was contended that the jeep which was driven rashly and negligently was being maintained by the State in exercise of its sovereign powers and was not part of any commercial activity of the State. Rejecting the said contention this Court held that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such, as any other empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... described as non-governmental or non-sovereign, citizen who have a cause of action for damages should not be precluded from making their claim against the State. That is the basis on which the area of the State immunity against such claims must be limited; and this is exactly what has been done by this Court in its decision in the case of State of Rajasthan. Two recent decisions where the State has been held to be vicariously liable on account of the negligent act of its employees are those of N. Nagendra Rao and Company v. State of Andhra Pradesh AIR 1994 SC 2663 and State of Maharashtra and Ors. v. Kanchanmala Vijaysingh Shrike and Ors. JT (1995) SC 155. In Nagendra Rao's case some goods had been confiscated pursuant to an order passed under Section 6A of the Essential Commodities Act, 1955. The said order was annulled but due to the negligence of the officers concerned goods were not found to be of the same quality and quantity which were there at the time of its confiscation. The owners of the goods refused to take delivery and filed a sit claiming value of the goods by way of compensation. The High Court of Andhra Pradesh held that the State was not vicariously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of a particular case, the person causing injury to the other was negligence or not has to be examined on the materials produced before the Court. It is the rule that an employer, though guilty of no fault himself, is liable for the damage done by the fault or negligence of his servant acting in the course of his employment. In some case, it can be found that an employee was doing an authorised act in an unauthorised but not a prohibited way. The employer shall be liable for such act, because such employee was acting within the scope of his employment and in so acting done something negligent or wrongful. A master is liable even for acts which he has not authorised provided they are so connected with acts which he has been so authorised. On the other hand, if the act of the servant is not even remotely connected within the scope of employment and is an independent act, the master shall not be responsible because the servant is not acting in the course of his employment but has gone outside. 11. The High Court has observed that the government cannot be held liable in tort for tortious acts committed in a hospital maintained by it because it considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than the principle enunciated in Bolam's case. This Court has had an occasion to go into this question in the case of Dr. Laxman Balkrishan Joshi v. Dr. Trimbak Bapu Godbole and Anr. [1969] 1 SCR 206. In that case the High Court had held that the death of the son of the claimant was due to the shock resulting from reduction of the patient's fracture attempted by the doctor without taking the elementary caution of giving anaesthetic. In this context, with reference to the duties of the doctors to the patient this court, in appeal, observed as follows : The duties which a doctor owes to his patient are clear, A per person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding whether treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. 15. In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable. As held in Laxman's case (supra) by this Court a medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. 16. In the present case the facts speak for themselves. Negligence is writ large. The facts as found by both the courts, in a nutshell, are that Chandrikabai was admitted to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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