1. Gross medical mistake can result in a findings of negligence being recorded. Such is the argument raised in this writ petition. 2. Mst.Bholi Devi was admitted in S.M.G.S. Hospital, Jammu on 12.10.1997. It was a case of Pro-lapsed Uterus. She was found to be suffering from Cysto-cele and Rectocele. 3. The fact that the petitioner came to be so admitted was sought to be established by showing the medical record i.e. admission card. She was advised to be operated upon on 15.10.1997. As per the petitioners the pre-operative investigations were carried out by re­spondents No.3 to 7. The drug allergy of the patient was recorded in General case sheet. Mst. Bholi Devi was given 5 ml tablet of Diazepam at 6 AM on 14th Oct, 97. As a pre-operative measure the following medicines were recommended: i) Tab. Diazepam ii) Injection Voveran iii) Injection Glycopyrlate. 4. Mst Bholi Devi was examined on 15th Oct. 1997 at 12. She was shifted to the operation theatre. She was given the Injection of Diazepam. This led to disturbances in Blood Pressure. As per the petitioners she edeveloped Apneoa (sort of death feeling) respiratory dis­order. Pulse recorded was at 52 per minute. The Blood Pressure was 90/60. The Injection which was administered was one manufactured by M/S Patental Products, Gangyal, Jammu. This was of 2 ml capacity. This was to be in­jected intra-muscular. It was however, injected intra-venous. It is this factor which led to the feeling of apneoa. This patient is said to have been put on ventilator at 3.10. PM on 15th Oct. 1997. The doctors informed her husband that the patient be taken back as the chances of her survival are minimum. She developed un­consciousness. She died later on. On 30th March,98. Her husband and her minor chil­dren are claiming compensation. The fact that injection was to be given intra-venous is sought to be supported from a communication dated 25th Aug.99. For facility of reference, this com­munication is being reproduced below:- "Department of Anaesthesia Govt. Medical College Jammu. To, The Medical Superintendent, S.M.G.S. Hospital Jammu. Sub: Inquest Proceeding relating to death of Smt.Bholi Devi, w/o Ram Chand, r/o Chatta. No: Anaesth/99/614 dated: 25.08.1999. Sir, I am to bring to your kind notice that Smt.Bholi Devi, w/o Ram Chand,MRD No.571664/462 developed complication following inj-diazepam in Gynae O.T. where Dr.Ranbushan Singh, B-Grade Specialist Anaesthetist and Dr.Sandeep Kotwal,PG were working on 15.10.1997. Sub: Inquest Proceeding relating to death of Smt.Bholi Devi, w/o Ram Chand, r/o Chatta. No: Anaesth/99/614 dated: 25.08.1999. Sir, I am to bring to your kind notice that Smt.Bholi Devi, w/o Ram Chand,MRD No.571664/462 developed complication following inj-diazepam in Gynae O.T. where Dr.Ranbushan Singh, B-Grade Specialist Anaesthetist and Dr.Sandeep Kotwal,PG were working on 15.10.1997. Dr.Daljit Singh, Professor in Anaesthesia was also present in Gynae, OT as a Senior Anaesthe­sia consultant. As reported by Anaesthetists working in Gynae O.T. that Smt. Bholi Devi was given Diazepam IV as she was very apprehensive. Inj. Diazepam is usually used as pre-medicant in all nervous and apprehensive patients. Inj. Diazepam allays nervousness, appre-hensiveness and thus induces sleep. As reported by Anaesthetists on duty, Smt.BhoIi devi developed cardio pulrnenary arrest following severe cardiopulmonary de­pression after injection Diazeparn I.V. like other drugs, Diazepam may cause cardie ar­rest though a rate complication. Cerebral Hevpokic damage following cardio-pulmonary resusciation is a known sequlae. It is further reported that IV preparation of Injection diazepam was given to Smt. BhoIi Devi in the operation theatre. It is further requested that any further information regarding anaesthesia pertain­ing to Smt. BhoIi Devi, w/o Ram Chand may be enquired directly from the Anaesthetists on duty as mentioned above. Sequence of events as reported by anaesthetists on duty on 15.10.1997 in Gynae O.T. are enclosed herewith in original. Yours faithfully, Sd/- Dr.B.L.Kohli, Prof & HOD." 5. Petitioner has also placed on record a photograph of vial. This is marked C-l. This indicate that Injection Diazepam was meant for intra-muscular use. It is on this basis the compensation is being claimed. Mst. Bholi Devi is said to have died on 30.03.1998. This fact was brought on the record by preferring a CMP No.777/98. 6. Respondents have filed objections. The stand taken is that writ petition involves dis­puted questions of fact and therefore, this writ petition should not be entertained. The fact that Diazepam Injection was given intravenously is not being denied. It is stated that all due care and attention was taken. Para 3 of the prelimi­nary objections is reproduced below: - "3. That the writ petition raises dis­puted questions of facts which cannot be gone into by the Honble Court in its writ jurisdic­tion as the petitioner on 15th of Oct. It is stated that all due care and attention was taken. Para 3 of the prelimi­nary objections is reproduced below: - "3. That the writ petition raises dis­puted questions of facts which cannot be gone into by the Honble Court in its writ jurisdic­tion as the petitioner on 15th of Oct. 1997 was administered diazepam injection intravenously as the petitioner was apprehensive while she was being prepared for undergoing operation to Cystocoel with Tecto coel for which she was suffering. However the petitioner developed cardiac arrest following severe cardiorespiratory depression as complication of the injection Diazepam. She was resuscitated to save her life using oxygen therapy and other necessary life saving drugs/measures, after the resuscitation the petitioner was shifted to in­tensive care unit Medical College Hospital for further management including specialised serv­ices. Due to the reasons beyond the control of the respondents the petitioner developed an anoxic brain damage which is a sequalae of cardiac arrest. Her cardio respiratory status was restored with help of life support machine and other life saving drugs. The petitioner there­after was provided best medical facilities and she was examined by various Heads of the Spe­cialists but despite best efforts of the answer­ing respondents, the patient could not be re­vived of her complication. The patient Smt.Bholi Devi was properly looked after by various consultants in I.C.U for more than two months. As such, the writ petition on this count deserves to be dismissed out right by this Honble Court." 7. On merit, it is stated that the injection which was given to Bholi Devi was the one manufactured by M/s Ranbaxy Co. and not by M/s Parental Products, Gangyal, Jammu. The fact that circular came to be issued on 30.01.1998 suggesting that this type of injec­tion should be given intra-muscular, is said to have been issued. It is stated that it was advi­sory in nature. This circular has been placed on the record as annexure-B. This is re-pro­duced below:- "Department of Anaesthesia Govt. Medical College, Jammu. Circular All the consultants/B-Grade Anaesthe­sia Specialists/Residents/Asstt.Surgeons of this department are directed not to use Inj. Diazepam (P.Cal M.) manufactured by Pa­rental Products, Gangyal Jammu intrave­nously as it is meant for intramuscular use only. All concerned to note. No:Anaesth/98/100-4 Sd/- Dated:02.02.98 (Dr.G.B.Kohli) Prof. & HOD" It is submitted that best professional services were rendered. However, the life of Bholi Devi could not be saved. Diazepam (P.Cal M.) manufactured by Pa­rental Products, Gangyal Jammu intrave­nously as it is meant for intramuscular use only. All concerned to note. No:Anaesth/98/100-4 Sd/- Dated:02.02.98 (Dr.G.B.Kohli) Prof. & HOD" It is submitted that best professional services were rendered. However, the life of Bholi Devi could not be saved. The deceased had developed an anoxic brain damage and this resulted in ultimate cardiac arrest. 8. Short question which is required to be gone into is as to whether the petitioners i.e. the husband and children of Smt.Bholi Devi are entitled to be compensated and if they are to be compensated then what should be its quantum 9. The fact that in case of proven negli­gence compensation can be allowed even when a litigant seeks remedy under Article 226 of the Constitution of India is concerned, there can be no two opinions. As a matter of fact in the case of Consumer Education and Research Centre vs. Union of India, reported in AIR 1995 SC 992, their Lordships held as under- ".....It is therefore settled law that in public law claim for compensation is a remedy available under Article 32 or 226 for the en­forcement and protection of fundamental and human rights. There is no question of defence being available for constitutional remedy. It is a practical and inexpensive mode of redress available for the contraven­tion made by the State its servants, its instrumentalities, a company or a person is the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement or any right or duty under the constitution or the law." 10. Earlier pronouncement in the case of Nilabati Behera vs State of Orissa reported in AIR 1993 SC 1960 lays down the same princi­ple. Earlier pronouncement in the case of Nilabati Behera vs State of Orissa reported in AIR 1993 SC 1960 lays down the same princi­ple. What is said is quoted below:- "It follows that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the pro­tection of which is guaranteed in the con­stitution, is an acknowledged remedy for enforcement and protection of which is guar­anteed in the constitution, is an acknowl­edged remedy for enforcement and protec­tion of such rights, and such a claim based on strict liability made by resorting to a con­stitutional remedy provided for the enforce­ment of a fundamental right is distinct from and in addition to the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. His defence of sovereign immunity being in ap­plicable and alien to the concept of guaran­tee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy..." 11. A Division Bench of this Court in the case reported as Executive Engineer, Electric­ity (M&RE) Division vs Mohd.Ashraf Bhat and others, AIR 1999 J&K 137 and two other deci­sions reported as Sagar Chand and anr. vs State of J&K and another, AIR 1999 J&K 154, and Miss Afroza (minor) vs State of J&K and anr. AIR 2000 J&K 103, have followed the same principle and allowed compensation in case of proven negligence. Similar view has been ex­pressed by the two Division Benches of Orissa High Court, reported as Sukha Bewa vs Grid Corporation of Orissa & others, AIR 1999 Orissa 170, and Smt.Golap Sewa alias Behara and anr. vs Grid Corp of Orissa & another, AIR 1999 orissa 189. 12. Reverting back to the question as to whether negligence on the part of the Doctors can lead to grant of compensation be exam­ined. 13. In an action for negligence in tort against a Surgeon the Supreme Court of India in the case of Laxman Bal Krishna Joshi vs Trimbak Bapu Godbole, (1969) 1 SCR 206 observed as under:- "The duties which a doctor owes to his pa­tient are clear, a 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. 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 what 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 and must exercise a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law require". 14. In this regard it would be relevant to re­fer the decision given by the Supreme Court of India in the case of Spring Meadows Hospital and another vs. Harjolahluwalia and anr. (1998)4 SCC 39. What is said at page 47 is re­produced below:- "In the case of Whitehouse vs. Jordan an obsterician had pulled too hard in a trial of forceps delivery and had thereby caused the plaintiffs head to become wedged with con­sequent asphyxia and brain damage. The trial Judge had held the action of the de­fendant to be negligent but this judgment had been reversed by Lord Denning, in the Court of Appeal, emphasising that an error of judgment would not tantamount to negli­gence when the said matter came before the House of Lords, the views of Lord Denning on the error of judgment could be negligence if it is an error which would not have been made by a reasonably competent profes­sional man acting with ordinary care. Lord Fraser pointed out thus: The true position is that an error of judg­ment may, or may not, be negligent; it de­pends on the nature of the error. If it is one that would not have been made by a reason­ably competent professional man profess­ing to have the standard and type of skill that the defendant held himself out as hav­ing and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man acting with ordinary care, might have made, then it is not negli­gence. 10. Gross medical mistake will always re­sult in a finding of negligence. If, on the other hand, it is an error that such a man acting with ordinary care, might have made, then it is not negli­gence. 10. Gross medical mistake will always re­sult in a finding of negligence. Use of wrong drag or wrong gas during the course of an­aesthetic will frequently lead to the imposi­tion of liability and in some situations even the principle of res-ipsa loquitur can be ap­plied. Even delegation of responsibility to another may amount to negligence in cer­tain circumstances. A consultant could be negligent where he delegates the responsi­bility to his junior with the knowledge that the junior was incapable of performing of his duties properly. We are indicating these principles since in the case in hand certain arguments had been advanced in this regard, which will be dealt with while answering the questions posed by us". 15. The aforementioned principles would broadly apply to the facts of this case. Instruc­tions had been issued to the concerned Doctors and para-medical staff of the SMGS Hospital, not to give the injection intra-veneously. This is a case where due care and attention was not exercised. On account of this negligence the petitioners i.e. the heirs of Smt. Bholi Devi (de­ceased) are held entitled to the relief of com­pensation. Even when there was no fault then under the concept of No Fault Liability com­pensation can be allowed to the extent of Rs.50,000/-. A further sum of Rs. 15,0007- un­der the head loss of consolinium is allowed. For allowing this much amount of compensa­tion no evidence is required. The petition does not indicate as to what was the job undertaken by the deceased. She was a house-wife. 16. Taking into consideration this aspect of the matter another sum of Rs.25,000/- is allowed to the family of the deceased. The total com­pensation which is allowed is Rs.90,000/- (Ru­pees Ninety Thousands). Let this compensation be paid within two months from the date copy of the order is made available by the petition­ers to the respondents. In case the compensa­tion is not paid in the period noticed above, the petitioners would be entitled to interest. The rate of interest would be 12% per annum. Disposed of accordingly.