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2001 DIGILAW 861 (AP)

Faizuddin (died) per LRs. v. Muralidhar Gupta

2001-08-10

B.SUBHASHAN REDDY, P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) THIS LPA is filed aggrieved by the judgment dt. 19. 4. 1993 in CCCA No. 59 of 1988. ( 2 ) THE unsuccessful plaintiff is the appellant herein. The appellant filed the suit for recovery of damages in a sum of rs. 1,20,000/- from the respondents- defendants alleging that he was operated upon for peptic ulcer by the first respondent (D-1) in the E. S. I. Hospital at Sanathnagar on 28. 11. 1980. He was discharged on 27. 12. 1980 and later on when again he got pain in his stomach, he went to Osmania hospital where he was operated on 13. 3. 1983 and a forceps was removed from his abdomen and therefore the appellant alleged that the first respondent-doctor who had performed the operation was negligent in leaving the forceps in his abdomen at the time of the operation on 28. 10. 1980 and hence the first respondent is liable to pay damages of Rs. 1,20,000/- and the second and third respondents, who are the director, Insurance Medical Services and the Secretary to Government, Medical and health Department respectively, are also vicariously liable for the negligence of the first respondent. ( 3 ) THE first respondent denied having performed the operation on the appellant on 28. 11. 1980 and also the negligence attributed to him. ( 4 ) THE third respondent filed a written statement, which was adopted by the second respondent, in which it is stated that though the appellant was operated on 28. 11. 1980 in the E. S. I. Hospital at sanathnagar, there was no negligence on the part of the first respondent or any other doctor in the hospital. ( 5 ) THE Court of first instance had framed appropriate issues and came to the conclusion that the appellant failed to prove that the first respondent had performed the operation and accordingly dismissed the suit. Aggrieved by the same, the appellant filed c. C. C. A. No. 59 of 1988, which was also dismissed by the learned single Judge. Hence the present LPA has been filed by the unsuccessful plaintiff-appellant. ( 6 ) THE appellant had examined himself as PW1 and had deposed that he had joined the E. S. I. Hospital for treatment on 28. 11. 1980 and that it was the first respondent who had performed the operation. Hence the present LPA has been filed by the unsuccessful plaintiff-appellant. ( 6 ) THE appellant had examined himself as PW1 and had deposed that he had joined the E. S. I. Hospital for treatment on 28. 11. 1980 and that it was the first respondent who had performed the operation. To show that he had joined E. S. I. Hospital, the appellant filed Ex. A14, the discharge certificate. PW2 is the son of the appellant. PW3 is the doctor in Osmania Hospital who had again performed yet another operation on 13. 5. 1983 and found that there was forceps in the abdomen of the appellant and removed it. The first respondent was examined as D. W. 1, who had deposed that he does not know the appellant and that he cannot identify him and he does not remember whether he had performed any operation on the appellant or not. It is pertinent to note here that the fact that operation was conducted is not in dispute and in fact even in the pleading of D2 and D3 this aspect has been admitted. However, both the learned single Judge and the trial Court had decided that the appellant is not entitled to claim the damages as the fact that the operations was performed by the first respondent (D1) had not been established. ( 7 ) IN the facts and circumstances of the case and also in the light of the admission made by the respondents 2 and 3 (D2 and D3), it is clear that the appellant had come to the hospital on the fateful day and had undergone the operation at the said hospital. As far as this aspect is concerned, it cannot be in dispute. The only missing link, on the basis of which both the learned single Judge as well as the trial Court have negatived the relief to this unfortunate appellant, is that he was unable to establish the connecting link that it is the first respondent (D1) alone who had performed the operation on that particular day. The learned single Judge, no doubt, had observed that the concerned registers relating to the hospital and the concerned personnel in the hospital were not examined and steps have not been taken to summon the relevant documents. The learned single Judge, no doubt, had observed that the concerned registers relating to the hospital and the concerned personnel in the hospital were not examined and steps have not been taken to summon the relevant documents. ( 8 ) THIS is not a case where a certified copy could be obtained so as to file before the Court and this aspect has been lost sight of by both the learned single judge and the trial Court. Further, section 106 of the Indian Evidence Act dealing with the burden of proving fact especially within the knowledge specifies that when any fact is especially within the knowledge of any person, the burden of proving the fact is upon him. In K. Vittal rao v. State of A. P. , 1994 (2) ALT 482, a division Bench of this Court while dealing with a criminal matter had observed on the aspect of burden of proof of a fact to the effect that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It is needless to mention here that the aspects, which should have been established by the respondents, have not been established and on the contrary it was observed by the learned single Judge as well as the trial court that the appellant should have established such aspects. In our considered view, this approach of the learned single judge as well as the trial Court placing the burden on the appellant to prove certain aspects relating to the records in the e. S. I. Hospital and the connected matters therewith is totally a wrong approach. We are of the opinion that the learned single judge ought to have remanded the matter to the Court of first instance instead of dismissing the suit. We are also of the considered view that the trial Court did not place enough attention and just dismissed the suit on the technical ground of not summoning the records. ( 9 ) THIS is an unfortunate case where a citizen had approached the Court for redressal of his grievance complaining negligence on the part of a Doctor. We are also of the considered view that the trial Court did not place enough attention and just dismissed the suit on the technical ground of not summoning the records. ( 9 ) THIS is an unfortunate case where a citizen had approached the Court for redressal of his grievance complaining negligence on the part of a Doctor. The appellant is an innocent citizen who had approached the hospital authorities and all the details and the particulars will be available with the respondents only and as far as the knowledge of the appellant relating to those aspects is concerned, it will be very limited. In the light of this background, the provision relating to the burden of proof under Section 106 of the indian Evidence Act may have to be looked into. The words employed in Section 106 of the Indian Evidence Act "any fact is especially within the knowledge of any person. . . " are very relevant and important for the present purpose. The principle enunciated by this provision, in our opinion, is based more on common sense and ordinary justice. The concept of deciding matters on "common sense and ordinary justice" has been recognized even by law courts. For example, this concept was adopted by James L. J. , in 6 Ch. A. 466. In law of Evidence by Woodroofe and Amir ali Volume-3, 13th Edition at page 2460, the learned authors had expressed the opinion:"in a suit by a consignor for damage to the goods consigned by him on the ground of negligence and misconduct of the railway or its services, the consignee can rely on the provisions of this Section and Section 114 of the Act and ask the Railway administration to disclose certain facts if they are within its exclusive knowledge and if the Railway administration does not disclose them, he can ask the Court to draw such inferences on its omission as are provided for under the law", ( 10 ) IN Asaram Gangaram v. Union of india, New Delhi and others, AIR 1957 nag. 59, it was observed:-"in my opinion, this approach to the case is erroneous. The consignment was booked at the railway risk rate. It is not disputed that the goods of which delivery was given by the Railway Administration at Mysore were less in weight and had deteriorated in quality. 59, it was observed:-"in my opinion, this approach to the case is erroneous. The consignment was booked at the railway risk rate. It is not disputed that the goods of which delivery was given by the Railway Administration at Mysore were less in weight and had deteriorated in quality. It cannot therefore be disputed that the consignment suffered loss and deterioration while it was in the custody and control of the Railway Administration. We have also on record that the Railway administration have not cared to place any material before us from which it could be inferred how the consignment was dealt with, in order to ascertain whether the Railway administration took as much care as is required of them. . . ". In Union of India v. Ratilal Jadavji, AIR 1971 Cal. 515 , it was held:"under Section 106 of the Evidence Act, when any fact is especially within the knowledge of any person, burden of proving that fact is on him. Sections 74-A and 74-C of the Act are not in conflict with the said provisions of Section 106 of the Evidence act, the latter provisions being one of the modes of proving facts. All the facts regarding how the consignments were dealt with while under the custody of the railway are especially within their knowledge, and therefore, the railway must place before the court all facts. When all the materials are placed before the Court, it is then for the plaintiff consignor to satisfy the Court that true inference from these facts, is, that, the railway and its servants did not exercise due care and skill required of a bailee. This position seems to be established on the decision of the Judicial Committee in dwaraknath v. Rivers Steam Navigation Co. , ltd. , AIR 1917 PC 173 = 27 Cal L. J. 615. In D. Peru Reddy v. Dagumati Kondareddi, 1985 (3) APLJ 10 (NRC), it was held that where a decree was passed in a mortgage suit and a subsequent suit was filed by son-in-law of the mortgagor setting up prior mortgage, the burden of proof lies on the prior mortgagee. Thus, this principle of burden of proof embodied in Section 106 of the Indian Evidence Act, based more on common sense, should be liberally construed by the Courts while deciding the matters, since in our opinion, law has to bend before justice". Thus, this principle of burden of proof embodied in Section 106 of the Indian Evidence Act, based more on common sense, should be liberally construed by the Courts while deciding the matters, since in our opinion, law has to bend before justice". ( 11 ) FOR the aforementioned reasons, we consider that this is a fit case for remand. Accordingly, we remand the matter to the trial Court directing it to summon the relevant records from the E. S. I. Hospital, where the appellant underwent operation, and mark them as Court documents and, if necessary, also to summon the personnel of that hospital to prove the same. This exercise shall be completed by the trial Court within four months from the date of receipt of a copy of this order. ( 12 ) THE appeal is accordingly allowed. No costs.