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2001 DIGILAW 11 (ORI)

KAMALINI BISWAL v. STATE OF ORISSA

2001-01-09

PRADIPTA RAY

body2001
PRADIPTA RAY, J. ( 1 ) AJIT Kumar Biswal, a boy who appeared at the High School certificate Examination, 1998 suffered serious injury in an accidental cracker explosion in the morning of 7. 6. 1998. He was initially treated at the local Primary health Centre at Madhuban and ultimately forwarded to S. C. B. Medical College and Hospital at Cuttack in the evening for further treatment. Immediately after his admission an emergency life saving operation in the trachea was done. Unfortunately the boy succumbed to his injury, at about 11. 55 p. m. in the night. The said boy was the only son of the present writ petitioner, a widow. A post-mortem examination was held. Post-mortem report revealed that a triangular shaped foreign body (broken clay) of size 1. 5 cm. x 1 cm. was found in the lumen of trachea just below the trache-ostomy wound and that the death was due to asphyxia caused by the presence of foreign body in the respiratory passage. ( 2 ) THE writ petitioner, mother of the deceased boy has filed this writ petition claiming compensation from the State government alleging that her son's death was caused by the negligence and/or carelessness of the surgeon, who had operated upon him. According to the petitioner, the surgeon did not take proper care to clean the lumen of the trachea below the trache-ostomy wound and remove all foreign particles. ( 3 ) IN view of the decision of the Apex court in Chairman, Grid Corporation of orissa Ltd. v. Sukamani Das, (1997) 7 scc 298, the entertainability of the writ petition claiming compensation from the state Government is to be examined. It will be of no use entertaining a writ application and ultimately dismissing it after a considerable period of time on the ground of involvement of disputed questions of facts which cannot be decided on affidavits. In Sukamani Das's case (supra)this High Court granted compensation to sukamani Das because of the death of her husband due to electrocution. The Grid corporation of Orissa moved the Supreme court. The Supreme Court disapproved entertainment of writ petition claiming compensation and expressed the following opinion: "in our opinion, the High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power under Article 226 of the Constitution. The Grid corporation of Orissa moved the Supreme court. The Supreme Court disapproved entertainment of writ petition claiming compensation and expressed the following opinion: "in our opinion, the High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of electric transmission lines of the appellants, that admittedly, prima facie amounted to negligence on the part of the appellants. The High court failed to appreciate that all these cases were actions in tort and negligence was required to be established, firstly, by the claimants. The mere fact that the wire of the electric transmission line belonging to appellant No. 1 had snapped and the deceased had come in contact with it and had died was not by itself sufficient for awarding compensation. It also required to be examined whether the wire had snapped as a result of any negligence of the appellants and under which circumstances the deceased had come in contact with the wire. In view of the specific defences raised by the appellants in each of these cases they deserved an opportunity to prove that proper care and precaution were taken in maintaining the transmission lines and yet the wires had snapped because of circumstances beyond their control or unauthorised intervention of third parties or that the deceased had not died in the manner stated by the petitioners. These questions could not have been decided properly on the basis of affidavits only. It is the settled legal position that where disputed questions of facts are involved a petition under article 226 of the Constitution is not a proper remedy. The High Court has not and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the civil court as it was done in O. J. C. No. 5229 of 1995. " ( 4 ) MR. The High Court should have directed the writ petitioners to approach the civil court as it was done in O. J. C. No. 5229 of 1995. " ( 4 ) MR. Subha Bikash Panda, learned advocate for the petitioner has urged that the post-mortem report on the face of it reveals negligence of the surgeon in government hospital and as such this court should entertain the writ application and direct payment of compensation in exercise of its jurisdiction under Article 226 of the constitution of India. He has cited several decisions of the Apex Court on the nature of jurisdiction under Article 226 of the constitution. Mr. Panda has also referred to the principle res ipsa loquitur to support entertainability of this writ application. ( 5 ) THERE is no dispute regarding the proposition that in appropriate cases where negligence is apparent and indisputable, compensation can be awarded against the state or authority under Article 12 of the constitution of India and their agencies. The question is whether in the facts and circumstances of the present case the High court can assume negligence and award compensation on the basis of affidavits. It is not easy to presume negligence and/or to draw an inference of negligence in case of medical treatment or surgical operations. The concerned doctor or surgeon is to be examined, expert opinion may be required to be obtained and the condition of the patient at the relevant point of time is to be ascertained. There may be cases where negligence is so patent that there cannot be any reasonable explanation for the same. For example, if a surgeon leaves any foreign material or substance used at the time of operation inside the body, negligence or carelessness is clearly manifest. In such case no expertise is necessary to hold that the surgeon is negligent or careless. The position is, however, different where a surgeon has failed to extricate all the foreign particles from the body while operating upon the patient for removing such particles. There may be reasonable explanation for such failure. Such failure does not necessarily give rise to an inference of negligence. Even if a doubt arises, the concerned doctor or surgeon is entitled to lead evidence to show that all possible care was actually taken, but the particle could not be extricated. There may be reasonable explanation for such failure. Such failure does not necessarily give rise to an inference of negligence. Even if a doubt arises, the concerned doctor or surgeon is entitled to lead evidence to show that all possible care was actually taken, but the particle could not be extricated. Difficulty in presuming negligence against surgeon, doctor or other professional people has been well recognised because a Judge does not have any personal knowledge or expertise about the ordinary course of things in matters of complex medical science. Negligence, if any, in such cases can be conclusively established only after taking evidence of the person or persons associated with the medical treatment and opinion of expert in the field. ( 6 ) THE decision in Sukamani Das's case, (1997) 7 SCC 298, has been explained by the Supreme Court in Tamil Nadu electricity Board v. Sumathi, (2000) 4 scc 543 . The Apex Court has observed therein: "in view of the clear proposition of law led by this court in Sukamani Das's case when a disputed question of fact arises and there is clear denial of any tortious liability remedy under Article 226 of the Constitution may not be proper. However, it cannot be understood as laying a law that in every case of tortious liability recourse must be had to a suit. When there is negligence on the face of it and infringement of article 21 is there it cannot be said that there will be any bar to proceed under article 226 of the Constitution. " even in the said Tamil Nadu Electricity board's case (supra) Supreme Court held that the High Court committed error in entertaining writ petition claiming compensation. ( 7 ) IN the present case admittedly the foreign particle entered the trachea because of the cracker explosion. A life saving operation was conducted to clear the trachea. Post-mortem report shows that a foreign particle lodged below the tracheos-tomy wound was not removed. Whether it was possible to remove the said foreign material and the same was not removed because of negligence or carelessness of operating surgeon is a matter of opinion for which evidence of the operating surgeon and other experts in the field are required to be taken. This is not a case where the presumption of negligence automatically flows as a matter of course. This is not a case where the presumption of negligence automatically flows as a matter of course. ( 8 ) THE principle res ipsa loquitur is a rule of evidence. It is an exception to the general rule that it is for the plaintiff to prove negligence and not for the defendant to disprove it. Where all the facts are known, the maxim only helps the plaintiff to shift the onus which ordinarily lies upon him to prove negligence. One of the relevant conditions to apply the said maxim is that the incident is such as in the ordinary course of things does not happen if those in the management use proper care. As already stated hereinbefore in matters of complex medical science the court does not have the expertise or the knowledge of the ordinary course of things in matters relating to medical treatment and the same is to be determined on the basis of the evidence adduced before the court. ( 9 ) IN the facts and circumstances of the present case, and particularly in view of the nature of the dispute involved, the claim for compensation cannot be entertained in this extraordinary constitutional writ jurisdiction. The petitioner is, however, at liberty to approach the civil court for compensation. It is made clear that this court has not considered the merit of the petitioner's claim for compensation. Writ petition is accordingly disposed of. Writ petition dismissed.