Judgment : 1. This is a very pathetic and unfortunate case, where the most celebrated proverb, "OPERATION SUCCESS, PATIENT DIED" comes to our mind. 2. The first petitioner, who had lost his wife, at her young age of 23 years, due to the callous attitude on the part of the Doctors, while performing surgery, has come forward to file the present Writ Petition, along with his minor children, seeking a Writ of Mandamus directing the respondents to pay compensation of Rs.15,00,000/- for the death of his wife –Ramalakshmi with reasonable interest. 3. The case of the petitioners is that the wife of the first petitioner was admitted in the Government Hospital, Rajapalayam, on 16.03.2005, wherein she gave birth to a child, and thereafter, it was decided to perform family planning operation, and accordingly, it was done. At that time, the fifth respondent herein was the Chief Medical Officer in charge, the fourth respondent conducted surgery and the Family Planning, the fifth respondent was an Anesthetist and the sixth respondent herein was a Staff Nurse. After surgery, the wife of the first petitioner complained of severe stomach pain, and therefore, she was shifted to the Government Rajaji Hospital, Madurai, on 21.03.2005, for further treatment. On 22.03.2005, at 13.15 hours, she died in the hospital. The Postmortem Certificate reveals the presence of pus and a swab pad, measuring 25X26 CM, in the abdomen and the cause of death was due to septicemia. At the time of surgery, the respondents 4 to 6 negligently left the swab pad in the abdomen of the wife of the first petitioner. 4. The further case of the petitioners is that the deceased was doing Tailoring Work in East India Surgicals, Chatrapatti, Rajapalayam and earning a sum of Rs.140/- per day. However, the first respondent, without considering the above aspect, sanctioned a very meagre sum of Rs.2,50,000/- in favour of the petitioners 2 and 3, vide G.O.Ms.No.81, Health and Family Welfare Department, dated 25.04.2003. The petitioners, thereafter, submitted an application before the District Consumer Redressal Forum, Virudhunagar District, in C.C.No.43 of 2006, seeking compensation of a sum of Rs.15,00,000/-, which was dismissed. Challenging the same, an appeal in F.A.No.880 of 2008 came to be filed and the State Commission held that the Consumer Forum has no jurisdiction and gave liberty to move the appropriate forum. Challenging the same, an appeal in F.A.No.880 of 2008 came to be filed and the State Commission held that the Consumer Forum has no jurisdiction and gave liberty to move the appropriate forum. Since the appeal was dismissed, the petitioners submitted representation, on 17.10.2011, before the respondents 1 to 3 seeking compensation of a sum of Rs.15,00,000/-. Under the above circumstances, the present Writ Petition has been filed. 5. The learned counsel appearing for the petitioners submits that the first petitioner is a poor man and his wife was hale and healthy before admitting in the hospital. His wife, who was in the advanced stage of pregnancy, was admitted in the Government Hospital, Rajapalayam, for delivery well in advance. The respondents 3 to 6, who conducted surgery, due to the callous attitude, had taken away her precious life, by keeping the swab pad in the abdomen. Thus, the learned counsel submits that appropriate direction may be issued to the respondents to pay compensation to the petitioners. 6. The learned Government Advocate appearing for the respondents 1 to 3 submits that the petitioners 2 and 3 were already given compensation of a sum of Rs.2,50,000/-, and hence, they are not entitled to any further compensation. 7. The learned counsel appearing for the fourth respondent, reiterating the averments made in the counter affidavit, submits that the surgery is a team work. It is the duty of the staff nurse, the sixth respondent herein to verify before closing the abdomen and make sure once again the correctness of the abdomen pads supplied. The learned counsel, in support of his contention, makes reliance upon the Medical Code, known as, "State Hospital Dispensaries", wherein it is mentioned that for missing Theatre articles, the Staff Nurse, Head Nurse and the Medical Officer are responsible. As the Medical Officer in charge of the theatre is Anesthetist and the Staff Nurse comes under the control of the Anesthetist, they are responsible for such negligence, and thus, the fourth respondent is no way responsible for such negligence. In the counter affidavit, at Paragraph No.4, the fourth respondent had further stated as follows:- "4. Without prejudice to the aforesaid contention, I submit that on 18.03.2005, I was posted as Laparoscopic Surgeon to do laparoscopic surgeries in Jaminkollankondan Primary Health Centre. In the counter affidavit, at Paragraph No.4, the fourth respondent had further stated as follows:- "4. Without prejudice to the aforesaid contention, I submit that on 18.03.2005, I was posted as Laparoscopic Surgeon to do laparoscopic surgeries in Jaminkollankondan Primary Health Centre. Due to repair of the operation theatre at Jaminkollankondan Primary Health Centre, the camp was conducted at Government Hospital, Rajapalayam, I performed LSCS with sterlization on Smt.Ramalakshmi as an additional duty given by Chief Medical Officer cum Anesthetist Dr.S.Sakthivel, the 5th respondent herein. The surgery was assisted by the 6th respondent. The patient was sent to the post operative ward in good condition. This was observed by expert committee Chairman Dr.Subbiah. I submit that the surgery is a team work. In the instant case each member of the team is well trained, qualified experienced and competent in their work. On 21.03.2005, ie., on the 3rd post operative day, the patient was treated by Dr.Bharathilakshmi, M.B.B.S., D.G.O., and Dr.Rajagunaseelan, M.S, who is the senior most surgeon. Therefore, I was not responsible for the treatment given on 21.03.2005. The patient was referred to Government Rajaji Hospital, Madurai, for further treatment, on 21.03.2005f at about 10.15 PM., by Dr.Rajagunaseelan, M.S. The patient was admitted in Government Rajaji Hospital, Madurai, on 22.03.2005, at about 12.50 A.M. Opinion of various specialists were obtained. But, since the patient was suffering from septicemia with multiple organ failure, she died, on 22.03.2005 at 01.50 PM. As per the postmortem report, the cause of death is Septicemia and shock. The Septicemia is an infection in Blood Stream. As per postmortem report, the Causative organism isolated from the blood is staphyllococus aures. These bacteria can be killed by Antibiotics. In the instant case, higher antibiotics were not available in the hospital. This fact is evident from the recordings in the case sheet by Dr.Bharathi Laxmi, on 21.03.2005. I further submit that if adequate higher antibiotics were available on that day Septicemia could have been prevented and death also might have been prevented and the pus can be removed by aspiration. The Gauze pad could have been removed had the 6th respondent reported the missing pad within 5 days, since the patient was alive for 5 days. Gauze pad will not cause death. The postmortem report does not reveal any negligence on my part, since there was no complication in the surgery." 8. The Gauze pad could have been removed had the 6th respondent reported the missing pad within 5 days, since the patient was alive for 5 days. Gauze pad will not cause death. The postmortem report does not reveal any negligence on my part, since there was no complication in the surgery." 8. The learned counsel appearing for the fifth respondent submits that the petitioner, seeking such a relief, had already approached the District Consumer Forum, which held that such Forum has no jurisdiction to deal with the matter, and hence, if the petitioner has any grievance, he has to approach the competent Civil Court. Thus, the learned counsel submits that the Writ Petition, as filed, is not maintainable in law. 9. Nextly, the learned counsel for the fifth respondent submits that the role of the fifth respondent is very limited, as he is an anesthetist. The main responsibility of an anesthetist is to give anesthesia to patients during surgery to ensure any pain or discomfort is kept to a minimum. An anesthetist talks to a patient before an operation to make sure that he/she knows the details of the surgery and is prepared for any unfamiliar sensations, he or she may experience. Anesthetist should have excellent communication skills as they will need to explain complex surgical procedures in plain terms. Once anesthesia has been administered, anesthetist stays in the operating theater to continually assess a patient's vital signs for any signs of danger and to assist surgeons with their work. An anesthetist is by the patient's side from the beginning to the conclusion of any invasive procedures, giving medical explanations and emotional support. He or she usually conducts a physical assessment of a patient before an operation to ensure the patient has no weaknesses that may interact with the anesthesia. An anesthetist also plays a key role in post-operative care. He or she explains any side effects, which may occur post-surgery due to the anesthesia and helps patients back to normality. 10. Relying on the report of the Expert Committee, the learned counsel further submits that the Expert committee had given a clear finding that it is the responsibility of both the Surgeon and the Staff Nurse, who would have taken adequate precaution before leaving foreign body in the abdominal cavity. 10. Relying on the report of the Expert Committee, the learned counsel further submits that the Expert committee had given a clear finding that it is the responsibility of both the Surgeon and the Staff Nurse, who would have taken adequate precaution before leaving foreign body in the abdominal cavity. In the counter affidavit filed by the fifth respondent, in Paragraph Nos.5 and 6, it has also been stated as follows:- "5. I humbly submit that I was the anesthetist for the Caesarian Surgery performed on the wife of the first petitioner. The alleged negligence is leaving behind the foreign body namely the gauze in the abdomen of the patient. The Expert Committee had given a clear finding that "it is the responsibility of both the surgeon and the staff nurse to have taken adequate precaution against leaving foreign body in the abdominal cavity". The anesthetist has no duty or responsibility towards count of swabs. 6. I humbly submit that the surgeon is the team leader while surgery is performed. Text book of Medical Jurisprudence and Toxicology written by famous MODI, page 398 is extracted herewith. "In a case where a swab, sponge or some instrument is left in the patient's body after an operation, the surgeon renders himself liable for damages, even though it is the theatre sister's responsibility to count all". Hence, fifth respondent, an Anesthetist is surely not responsible." 11. Even though a counter affidavit has been filed by the sixth respondent, and her name has been printed in the cause list, there is no representation on behalf of her. For better appreciation, it would be worthwhile to refer to the relevant portion of the counter affidavit, wherein in Paragraph No.4, it has been stated as follows:- "4. I submit that the averments in para 5 is denied as follows:- On just cause the consumer dispute redressal forum Virudhunagar rejected in C.C.No.43 of 2006, dated 20.02.2008. Against that the petitioner preferred an appeal in F.A.No.880/2008 before the State Forum. The same was disposed, on 31.05.2011, by rejecting the appeal. There is negligence on the part of the respondents 4 to 6." 12. I have considered the above submissions and perused the records carefully. 13. As the question of maintainability of the Writ Petition has been raised, let me take and decide the same, at first. 14. This Court, in the case of P.Sreenivasan, Vs. There is negligence on the part of the respondents 4 to 6." 12. I have considered the above submissions and perused the records carefully. 13. As the question of maintainability of the Writ Petition has been raised, let me take and decide the same, at first. 14. This Court, in the case of P.Sreenivasan, Vs. Chairman, Tamil Nadu Electricity Board, Chennai and another, reported in 2012 (3) MLJ 549 , in Paragraph No.9, had held as follows:- 9. Though it is stated that disputed question of facts are involved in this case and proper remedy is to file a Civil Suit, from the facts mentioned above it is evident that there is no question of disputed facts as everything is admitted. Therefore, there is no necessity to drive the Petitioner to approach the Civil Court that too after a period of five years of the incident. In view of this the judgments relied upon by the learned Counsel for the Electricity Board is not applicable as facts are admitted in this case. In Karuppaye Ammal and Mrs.Guruvammal Vs. The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai, and two others, (W.P.(MD).Nos.9555 and 9557 of 2007, dated 29.06.2011), this Court had held as follows:- “7.........There is no limitation as such provided for invoking Article 226 of the Constitution of India and the parties should be vigilant to approach the Court claiming relief under Article 226 of the Constitution of India. But, the Court cannot shut eyes and reject the applications at the threshold without taking notice of the facts of each case. When the records of the respondents itself disclose that the snapping of live wire was due to the ageing of conductors, the claim for compensation could not be rejected without examining the same on merits. Furthermore, the respondent being State, under Article 12 of the Constitution of India, is duty bound to answer the claim on merits and they could not take the technical plea more particularly in these type of cases. It is not the case where the respondent board is fighting against the persons who have indulged in theft of electrical energy. On the other hand, victims are the persons who came in contact with the live wire and lost their precious life..............? In State of Tamil Nadu Vs. It is not the case where the respondent board is fighting against the persons who have indulged in theft of electrical energy. On the other hand, victims are the persons who came in contact with the live wire and lost their precious life..............? In State of Tamil Nadu Vs. Ganesan, reported in 2013 (7) MLJ 297 , a Division Bench of this Court had held as follows:- "38. The Petitioners have to be compensated for the untimely demise of their son due to the negligence of the Police. They must be given fair and reasonable compensation. 40. There is no mathematical formula or a fixed method or a procedure for assessing compensation for violation of Fundamental Rights of Citizens. However, assessment has to be made to arrive at a reasonable compensation. In this respect, the Constitutional Courts also have taken a cue from the assessment of compensation made under the Motor Vehicles Act. That has also been done in this case. 42. The Court has deducted 1/3 from the income of the deceased towards his pleasure and other expenses. He died as a bachelor. Although Sarla Verma v. Delhi Transport Corporation , 2009 (2) TN MAC 1 (SC) : 2009 (6) SCC 121 (supra) advocated deduction of 50% in case the deceased was a bachelor, it had also held that when the deceased had left a large family, a lesser deduction can also be made. In this case, the deceased is the only son of the Petitioners. They are aged also. They had no other source of income except their only son. Now, he is no more. They have lost their sole breadwinner. In the facts and circumstances of the case, deduction of 1/3 is appropriate." 15. From the line of Judgments, cited supra, this Court is of the view that the objections regarding the maintainability of the Writ Petition cannot be countenanced and therefore, I have no hesitation to hold that the Writ Petition is maintainable. 16. Doctor is the best friend of a man, who is suffering from sickness. A poor man, who could not take treatment in a private hospital, comes to the Government Hospital, with a fond hope that he would get treatment from the Government Hospital and return back home, without disease. 16. Doctor is the best friend of a man, who is suffering from sickness. A poor man, who could not take treatment in a private hospital, comes to the Government Hospital, with a fond hope that he would get treatment from the Government Hospital and return back home, without disease. In the case on hand, the Doctor, who conducted surgery, due to the callous attitude, had taken away the precious life of a woman, which has to be condemned and cannot be permitted in a civilized society. Such type of negligence really put to peril of a layman. A doctor, who treats a patient, should take sufficient care of normal prudence, which is the legitimate expectation of every patient, who approaches the hospital for treatment. 17. In our Country, majority of citizens, requiring medical care and treatment, fall below the poverty line. Most of them are illiterate or semi-literate. They cannot comprehend medical terms, concepts, and treatment procedures. They cannot understand the functions of various organs or the effect of removal of such organs. They do not have access to effective but costly diagnostic procedures. Poor patients lying in the corridors of hospitals, after admission, for want of beds or patients waiting for days on the roadside for admission or a mere examination, is a common sight. For them, any treatment with reference to rough and ready diagnosis based on their outward symptoms and doctors experience or intuition is acceptable and welcome so long, as it is free or cheap; and whatever the doctors decide as being in their interest, is usually unquestioningly accepted. They are a passive, ignorant and uninvolved in treatment procedures. 18. The poor and needy face a hostile medical environment inadequacy in the number of hospitals and beds, non-availability of adequate treatment facilities, utter lack of qualitative treatment, corruption, callousness and apathy. Many poor patients with serious ailments, like heart patients and cancer patients, have to wait for months together for their turn even for diagnosis, and due to limited treatment facilities, many die even before their turn comes for treatment. What choice do these poor patients have?. Any treatment of whatever degree, is a boon or a favour, for them. The stark reality is that for a vast majority in the country, the concepts of informed consent or any form of consent, and choice in treatment, have no meaning or relevance. 19. What choice do these poor patients have?. Any treatment of whatever degree, is a boon or a favour, for them. The stark reality is that for a vast majority in the country, the concepts of informed consent or any form of consent, and choice in treatment, have no meaning or relevance. 19. At this juncture, it is relevant to note that this Court is conscious of the fact that in the decision in Martin F.D'Souza v. Mohd.Ishfaq reported in 2009 (2) Supreme 40 , the Supreme Court held that if a doctor treated a patient with ordinary care, then anything happens to the patient, the doctor concerned cannot be blamed, unless it is established that there is a criminal negligence on the part of the doctor in the manner known to law. In the case on hand, the negligence is not denied and the negligence on the part of the doctor is clearly established by postmortem report. But, the question is against whom such negligence could be attributed. 20. Article 21 of the Constitution of India guarantees right to life, which includes right to get meaningful health care, especially during maternity/delivery period. Article 21 imposes an obligation on the state to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the Medical Officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. 21. The Code of Medical Ethics drawn up with the approval of the Central Government under Section 33 of the Indian Council Medical Act and observed is as follows:- "Every doctor whether at a Government Hospital or otherwise has the professional obligation to extend his services for protecting life. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise cannot be sustained and, therefore, must give way." 22. On the basis of the evidence on record and arriving at a categorical finding that the death had occurred due to the negligence on the part of the doctors, this Court has computed the compensation. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise cannot be sustained and, therefore, must give way." 22. On the basis of the evidence on record and arriving at a categorical finding that the death had occurred due to the negligence on the part of the doctors, this Court has computed the compensation. As per the Judgment of the Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation reported in III (2009) ACC 708 (SC), 50% of the actual salary should be added towards future prospects, by adopting a rule known as "Rule of Thumb", provided the deceased was below 40 years. It is not in dispute that in the case on hand, at the time of death, the deceased was hardly 23 years old. As per the decision rendered in Sarla Verma's case, multiplier to be adopted is 17. 23. The deceased was earning a sum of Rs.4,000/-. Having regard to the age of the deceased, salary of the deceased, family status, the other attendant circumstances and as per the calculation memo produced by the learned counsel appearing on behalf of the petitioners, this Court is of the considered view that the petitioners are entitled for a sum of Rs.12,55,000/- under the following heads:- Loss of income Rs.7,25,288/- Loss of consortium for husband Rs.1,00,000/- Loss of Love and Affection for two children Rs.2,00,000/- Pain and sufferings Rs.2,00,000/- Funeral expenses Rs.10,000/- Loss of estate Rs.20,000/- Total Rs.12,55,288/- 24. The first respondent had already sanctioned a sum of Rs.2,50,000/- in favour of the petitioners 2 and 3, vide G.O.Ms.No.81, Health and Family Welfare Department, dated 25.04.2003. Therefore, the petitioners are entitled for a compensation of a sum of Rs.10,05,000/-, which is rounded off to Rs.10,00,000/-and the same shall be paid by the first respondent, within a period of four weeks from the date of receipt of a copy of this order. It is open to the respondents 1 to 3 to initiate appropriate proceedings against the respondents 4 to 6, so as to fix the liability, and thereafter, recover the said amount from them, after conducting a thorough enquiry. 25. The Writ Petition is allowed, as indicated above. No costs.