HON'BLE MR. JUSTICE B.N.P. SINGH ,PRESIDING MEMBERHON'BLE MR. S.K. NAIK ,MEMBER
For the Petitioner :
NEMO
For the Respondent :
NEMO
Dated : 02 Feb 2010
ORDER
Findings of State Commission both on merit and also as to maintainability/continuance of appeal before State Commission notwithstanding death of claimant during proceeding and suit having abated and complaint barred by limitation, was assailed by petitioner in revision. After petitioner approached Honble Apex court in Civil Appeal No. 1437/2006, Honble Apex court disposed of civil appeal with a direction to National Commission to expedite hearing of revision and dispose of the matter. Succinctly put, facts are that deceased Jagdish Bharti, a Journalist by profession, experiencing eye problem took consultation with Dr. M.L. Agarwal at Etah on 28.06.1992 who advised him to have consultation with a Doctor of Delhi or Agra. He was referred to Dr. Mahesh Sharma, who in his turn referred him to Dr. Neeraj Awasthy, the petitioner, with his recommendation. He eventually took consultation of Dr. Neeraj Awasthy on 08.09.1992 and on payment of prescribed fee, laser treatment was given to him on right eye. Laser treatment was provided on left eye also and patient was advised to report after three months. Since there was no improvement and he was gradually losing vision, he reported to Dr. Awasthy who advised him to go to doctors of AIIMS, New Delhi and also wrote a letter to Dr. H.K. Tiwari, Head of Department of Ophthalmology. He, however, on 04.01.1994, took consultation with Dr. S.P. Kumar, a Senior Consultant in Mool Chand Khairati Ram Hospital, New Delhi, who allegedly opined that for negligence and carelessness of the treating Doctor - Dr. Awasthy, while left side eye had totally got burnt, right eye too was damaged. No improvement, however, could be brought for want of complete treatment papers issued by Dr. Awasthy which he allegedly did not spare including Discharge Slip. Alleging deficiency, compliant came to be filed with District Forum, Etah on 03.06.1994. District Forum, Etah, however, on consideration of lack of territorial jurisdiction, directed return of the plaint to Sh. Jagdish Bharti, the Claimant, complaint being not maintainable before District Forum, Etah. The day the plaint was returned to the Claimant i.e. on 20.05.1995, it was filed before District Forum, Agra which had jurisdiction to adjudicate the issue. Since preliminary issue raised by opposite party for adjudication, before going into merit of case did not find favour with District Forum, order of District Forum was challenged before State Commission, which remitted matter to District Forum, Agra for consideration. District Forum, however, eventually on consideration of pleadings dismissed the complaint. Aforesaid finding of District Forum, however, was reversed by State Commission holding petitioner doctor liable for negligence in causing damage to the eyes of the deceased Jagdish Bharti and awarded compensation of Rs. 2,00,000/- to be paid within a period of two months failure of which was to carry interest @ 9% p.a. Jagdish Bharti through LRs, is now in revision. Objection with regard to maintainability of appeal before State Commission notwithstanding death of Jagdish Bharti, the Claimant on 11.09.2003, and complaint having been filed before District Forum, Agra beyond prescribed period of limitation were also raised on behalf of petitioner - doctor before the State Commission and State Commission having over-ruled objections raised, considered matter on merit and accepting appeal, directed award of compensation. As has been noticed, first complaint was filed with District Forum, Etah on 03.06.1994, which on return for want of territorial jurisdiction was filed before District Forum, Agra on 20.05.1995. State Commission rightly in our opinion having considered exclusion of period of pendency of complaint with the District Forum, Etah, found complaint filed within prescribed period of limitation. Hence, this issue no longer requires reiteration. Learned counsel for petitioner, in view of death of claimant, Jagdish Bharti on 11.09.2003, makes endeavour to dig at the root of maintainability of appeal before State Commission, taking recourse to provision of Section 306 of Succession Act and Rules 1 & 11 of Order XXII of CPC submits that applying maxim of action personalis cum moritur persona the complaint in the nature of personal injury to the claimant deceased had abated, and to buttress the contentions raised, learned counsel with his lucid submission brings to our notice decision of Honble Apex court in case of M. Veerappa Vs. Evelyn Seqeira & Ors. (1998) I SCC 556 and other decision of Honble Apex court in case of Melepurath Sankunni Ezhuthassan Vs. Thekttil Gopalankutty Nair (1986) I SCC 118. However, we do not feel impressed with the submissions canvassed before us, firstly for reason that shortly after death of Sh. Jagdish Bharti, the Journalist who was Claimant in proceeding, his legal heirs were brought on record substituting deceased claimant. As was held by Honble Apex Court in case of M. Veerappa (supra), though the maxim action personalis cum moritur persona would be inapplicable only in those cases where the injury caused to the deceased person has tangibly effected his estate or has caused an accretion to the estate of the wrong doer as well as in those cases where a suit for damages for defamation, assault or other personal injuries sustained by the plaintiff has resulted in a decree in favour of the plaintiff. The legal proposition cannot be disputed that under common law, the general rule is that death of either party extinguishes cause of action in toto by one against the other which finds expression in maxim noticed above. However, by Law Reforms (Miscellaneous Provisions) Act, 1934, all causes of action vested in a person survives for benefit of his estate except causes of action for defamation or seduction which abate on death of such person. Deceased had brought plaint before petitioner doctor for damages suffered by him for his negligence in professional duties. Regard being had to nature of claim, we are unable to comprehend how the cause of action that has arisen from negligence of petitioner would abate with the death of claimant, once legal heirs were brought on record by substitution. That apart, there is yet another aspect of the coin which cannot be conveniently over-looked. Section 2(i)(b)(v) postulates that complainant means in case of death of a consumer, his legal heir or representative who or which makes the complaint. The legal heirs of the deceased claimant were brought on record by legal fiction and that apart, claim brought by deceased was not a claim for his personal right. Legal heirs of deceased too, would be beneficiary in case complaint succeeds and hence we are driven to conclusion that right to sue petitioner is not extinguished with death of claimant, Jagdish Bharti. Also on merit, we notice that since Jagdish Bharti persistently suffered problem in the eyes despite laser treatment to both the eyes by the treating doctor - petitioner, he had availed services of a number of doctors including that of Dr. S.P. Kumar at Delhi who noticed retina in the left eye burnt for laser therapy done elsewhere. Much stress was laid by petitioner on the finding of Dr. S.P. Kumar holding that taking the matter to be true on its face value about retina of Jagdish Bharti getting burnt, the finding of Dr. S.P. Kumar did not indict petitioner and reasons for this is not very difficult to comprehend, as doctors would not like to indict other doctors in majority of cases even when sheer negligence in treatment has come to their notice. As was laid by Honble Apex court in Martin F. D. Souza Vs. Mohd. Ishfaq, a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing, one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. In many cases, it is not very uncommon that testimony of doctor may not necessarily be objective since like in all professions and services, doctors too, sometimes have a tendency to support their own colleagues who are charged with medical negligence. Laser therapy performed on both eyes of Jagdish Bharti by petitioner - treating doctor, in view of finding of State Commission and also treatment papers having been taken into consideration, cannot possibly be disputed. If this be considered in this back drop, finding of Doctor S.P. Kuamr was impliedly against petitioner - treating doctor who had performed laser therapy on Jagdish Bharti, before he took consultation with Dr. S.P. Kumar. Lot of arguments were canvassed by learned counsel for petitioner about element of negligence conspicuously wanting therein even if treatment by petitioner and consequential damages that followed, be taken on their face value. Learned counsel puts reliance on decision of Honble Apex court in case of Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC I in which the test laid down in case of Bolem Vs. F. Hospital Management Committee, popularly known as Bolems test was approved, as for its applicability in India also. Time and again, courts have laid down an acid test that a doctor may be held liable for negligence on one of two findings that either he was not possessed of requisite skill which he professed to have possessed or he did not exercise with reasonable competence in a given case, the skill which he did possess and that apart, the standard to be adopted for judging whether the person charged had been negligent or not would be that of an ordinary competent person exercising ordinary skill in that profession. Admittedly, it is not expected of every professional to possess highest level of expertise or skill in that branch which he practices and undisputedly that cannot be made basis for judging performance of professional, before proceeding on indictment for negligence. Judicial precedents laid down by Honble Courts tend to lay down settled proposition that constituents of negligence are a legal duty on professional to exercise due care on part of the party complained of, towards the party complaining of formers conduct within the scope of duty, breach of said duty and consequential damages flowing from them. Petitioner doctor is not being indicted, for some one else of greater skill and knowledge would have prescribed a different treatment or operated in a different way or he did not act in accordance with the practice accepted. We are not oblivious that cleavage of opinion and verdict getting fractured between two experts is not uncommon. With reference to finding of Dr. S.P. Kumar who subsequently examined the patient, learned counsel for petitioner would refer to observations made by Honble Apex court in case of Jacob Mathew that, in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men. The legal proposition profounded by Honble Apex court is a guideline and true test for establishing negligence on part of doctor was, as to whether he had been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. But once, instances come which are quite conspicuous, telling their own tale, doctrine of res ipsa loquitur would apply since circumstances speak for themselves. In case of medical negligence, a mere preponderance of probability would be to indict the guilty, of profession. Inference as to negligence may be drawn from proved circumstances by applying the rule of res ipsa loquitur. Expectations in our life, true it is, did not always materialize but once a patient with some ailment or suffering approaches a doctor he expects redemption of sufferings. The deceased patient approached petitioner doctor for improvement in the vision which he was gradually losing and after lens were fitted in the eyes, consequences were quite converse. Is it not a tacit evidence suggesting lack of due care in discharging professional responsibility which a doctor of ordinary skill was expected to exercise. Petitioner doctor conducted laser therapy on both eyes of Jagdish Bharti following which he gradually began losing vision and its climax came with finding of Dr. S.P. Kumar who noticed retina of left eye burnt and right eye too having got damaged due to laser therapy getting done elsewhere. Should these subsequent events in the matter of retina getting burnt and right eye getting damaged should be thrown over board holding that all expectations in life do not materialize and if it be so, then no professional (doctor) can be nailed down even in case of sheer negligence in his professional duty. The deceased had approached the treating doctor not with high expectation but simply for improvement in his vision and that is, the least, which one expects on approaching an eye doctor. Though it is stated that Dr. Awasthy held high professional degrees but circumstances do speak that he did not exercise due care in performing laser therapy on the eye of Jagdish Bharti and hence there was breach of duty on his part and liability has to be fastened against him for consequential damages suffered by the victim. Expectation to have a better vision on a treatment by an eye doctor neither can be said high expectation, difficult to achieve nor an expectation only from highly skilled professional possessed of better qualities and consideration of these events would drive one to the conclusion that the treating doctor did not exercise with reasonable competence, the skill which he possessed and circumstances nail down the petitioner doctor for indictment. The claimant had lost vision for the wrong/negligence committed by the treating doctor and he is now no more leaving his legal heirs to mourn his death. Now once having driven to the conclusion about the sheer negligence exhibited by the treating doctor in treating the patient Jagidsh Bharti, we find that even the quantum of compensation awarded by the State Commission cannot be said to be exorbitant and uncalled for. Finding no infirmity with findings of State Commission, which are based on meticulous appreciation of issue that fell for consideration, we accordingly dismiss the revision petition with Rs. 10,000/- as cost to be paid to the legal heirs of the deceased respondent, by petitioner.
......................JB.N.P. SINGHPRESIDING MEMBER ......................S.K. NAIKMEMBER
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