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Madhya Pradesh High Court · body

2008 DIGILAW 131 (MP)

Goverdhan Singh v. State of M. P.

2008-01-23

N.K.MODY

body2008
JUDGMENT 1. Being aggrieved by the judgment and decree dated 24.4.2000 passed by District Judge, Shajapur in Civil Suit No. 9-B/2000 whereby the suit filed by the appellants was dismissed, the present appeal has been filed. 2. Short facts of the case are that appellants filed a suit for compensation of Rs. 75,000/- alleging that Smt. Lilabai was the wife of appellant No.1 and mother of rest of the appellants. It was alleged that Smt. Lilabai was operated at village-Sundersi on 11.6.1993 in a family planning camp. It was alleged that after the operation there was a huge bleeding, therefore, Smt. Lilabai was referred to District Hospital, Shajapur, from where she was referred to Indore. It was alleged that when she was in transit Smt. Lilabai died. In the suit, it was alleged that because of negligence on the part of respondent No.4 she passed away for which all the respondents are liable for payment of compensation. In the plaint, it was claimed that a sum of Rs. 75,000/- be awarded to the appellants as compensation. 3. The suit was contested by respondents alleging that there was no carelessness or negligence on the part of respondent No.4. It was alleged that the death of Smt. Lilabai took place not because of carelessness of any of the respondents, therefore, respondents cannot be held liable for payment of compensation. On the basis of pleadings of the parties, learned Court below framed the issues, recorded the evidence and dismissed the suit against which the present appeal has been filed. 4. Mr. Satish Tomar, learned counsel for the appellant submits that after recording of evidence, the suit of appellant has been dismissed only on the ground that suit is not maintainable because no notice has been issued under section 80 of CPC. It is submitted that neither such type of plea was raised by respondents in the written statement nor any issue was framed in that regard. It is submitted that learned Court below committed error in dismissing the suit which is illegal and deserved to be set-aside. It is submitted that neither such type of plea was raised by respondents in the written statement nor any issue was framed in that regard. It is submitted that learned Court below committed error in dismissing the suit which is illegal and deserved to be set-aside. It is submitted that since no plea was raised by respondents and the suit was for compensation on account of negligence and carelessness on the part of respondents, therefore, at the fag end of the complete trial learned Court below cannot dismiss the suit on the ground that compliance of section 80 of CPC is not made. It is submitted that appellant has adduced the evidence by examining PW 1 Gowardhan Singh husband of deceased/Smt. Lilabai whereby it was categorically proved that it was respondent No.4 who happens to be employee of respondents No. 1 to 3 was careless and negligent in operating the deceased Smt. Lilabai. Reliance is placed on a decision of this Court in the matter of Laxmichand (dead) through L.Rs. Kanta Bai v. Murty Shri Laxminarayan [ 2007 (1) JLJ 355 = 2007 (1) MPHT 500] wherein this Court has held that if such objection has not been raised by the officer concerned at the earliest stage, it is to be considered that it is waived and thereafter the officer concerned is estopped from taking such objection at any further stage. 5. Mr. S.D. Bohra, learned Government Advocate for respondents supports the judgment and decree passed by learned Court below and submits that since there was no notice under section 80 of CPC which is mandatory requirement of law, therefore, learned Court below rightly dismissed the suit. 6. From perusal of record, it is evident that Smt. Lilabai was wife of appellant No.1 and mother of minor appellants No.2 and 3 who passed away in a family planning operation. The allegation in the plaint is that it was the carelessness and negligence on the part of respondent No.4 who was a Doctor posted at Primary Health Centre, Village-Sunderasi, District Shajapur. In the written statement no plea was taken by respondents relating to maintainability of suit in absence of notice under section 80 of CPC. The allegation in the plaint is that it was the carelessness and negligence on the part of respondent No.4 who was a Doctor posted at Primary Health Centre, Village-Sunderasi, District Shajapur. In the written statement no plea was taken by respondents relating to maintainability of suit in absence of notice under section 80 of CPC. In the facts and circumstances of the case and in view of the aforesaid position of law, since no plea was raised by respondents at the time of filing of written statement and no issue was framed in that regard. Apart from this, the object of notice under section 80 of CPC is to enable the State to avoid unwanted litigation, when the State itself has not raised the plea of dismissal of suit for want of notice under section 80 of CPC and contested the suit on merits, there was no occasion for the learned Court below to dismiss the suit and deprive the appellants for their just claim. In the circumstances, learned Court below committed error in dismissing the suit filed by appellant. 7. Deceased was young lady who died because of excess bleeding during the course of family planning operation. The death occurred in transit when she was shifted to Indore by the respondents which shows that there was no proper arrangements where she was operated. 8. In the matter of State of Haryana v. Santra (Smt.), (2000) 5 SCC 182 the Hon'ble apex Court has held that medical negligence plays its game in strange ways. Sometimes it plays with life; sometimes it gifts an unwanted child. Negligence is a "tort". Every doctor who enters into the . medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as "implied undertaking" by a member of the medical profession that he would use a fair, reasonable and competent degree of skill where a person is guilty of negligence per se, no further proof is needed. It was also observed that 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 negligent. 9. It was also observed that 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 negligent. 9. In the matter of Jakob Mathew v. State of Punjab [ (2005) 6 SCC 1 ] the Hon'ble apex Court has held that the essential components of negligence as recognized, are three: "duty", "breach" and "resulting damage", that is to say : (1) the existence of a duty to take care, which is owed by the defendant to the complainant; (2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both casually connected with such recognized by the law, has been suffered by the complainant. Thus, a clear distinction exists between simple lack of care incurring civil liability and very high degree of negligence which is required in criminal cases. 10. In the matter of State of Punjab v. Shiv Ram [ (2005) 7 SCC 1 ] the Hon'ble apex Court has observed that a professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise with reasonable competence in the given case, the skill which .. he did possess. The medical profession is one of the oldest profession of the world and is the most humanitarian one. There is no better service than to serve the suffering, wounded and the sick. Inherent in the concept of any profession is a code of conduct, containing the basic ethics that· underline the moral values that govern professional practice and is aimed at upholding its dignity. Medical ethics underpin the values .at the heard of the practitioner-client relationship. In recent times, professionals are developing a tendency to forget that the self-regulation which is at the heard of their profession is a privilege in return for an implicit contract with society to provide good, competent and accountable service to the public. It must always be kept in mind that a doctors is a noble profession and the aim must be to serve humanity, otherwise this dignified profession will lose its true worth. It must always be kept in mind that a doctors is a noble profession and the aim must be to serve humanity, otherwise this dignified profession will lose its true worth. In the recent times the self-regulatory standards in the profession have shown a decline and this can be attributed to the overwhelming impact of commercialization of the sector. There are reports against doctors exploitative medical practices, misuse of diagnostic procedures, brokering deals for sale of human organs, etc. It cannot be denied that black sheep have entered the profession and that the profession has been unable to isolate them effectively. The need for external regulation to supplement professional self-regulation is constantly growing. The high costs and investments involved in the delivery of look to reaping maximum returns on such investment. Medical practice has always had a place of honour in society; currently the balance between service and business is shifting disturbingly towards business and this calls for improved and effective regulation, whether internal or external. There is need for introspection by doctors - individually and collectively. They must rise to the occasion and enforce discipline and high standards in the profession by assuming an active role. 11. After taking into consideration all the evidence on record, this Court is of the opinion that appellants No.2 and 3 were minor at the time of filing of the suit and fighting the case since last 14 years and could not get a single penny from the State Government. In the facts and circumstances of the case, keeping in view the position of law, it is evident that it was a case of carelessness and negligence on the part of respondents. In such type of matters, it is expected from the State who is known as welfare State to come forward to extend the help to the needy family specially when the minors are sufferer. 12. In view of this, appeal stands allowed. The judgment and decree passed by learned Court below is set-aside. It is directed that respondents I shall be liable to pay a sum of Rs. 75,000/- to the appellants alongwith interest @ 8% per annum from the date of filing of the suit. The amount shall be paid by respondents within a period of three months, failing which Defaulting Officer shall be liable to make the payment of interest @ 12% per annum. 75,000/- to the appellants alongwith interest @ 8% per annum from the date of filing of the suit. The amount shall be paid by respondents within a period of three months, failing which Defaulting Officer shall be liable to make the payment of interest @ 12% per annum. The amount shall be deposited in a Nationalized Bank in FDR in the name of appellants No.1, 2 and 3 in equal proportion and in such a manner so that it should fetch highest rate of interest and the interest shall be payable to appellant No.1 on monthly basis and the principal amount so deposited shall be disbursed by the learned Court below to appellant No. 1 looking to the educational and marital needs of appellant No.2 and 3. 13. With the aforesaid observations, appeal stands disposed of with costs through out.