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2016 DIGILAW 1416 (HP)

Rita Bherwal v. Raghav Gupta

2016-07-18

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This petition has been filed against Order dated 5.8.2015 rendered by the learned Civil Judge (Senior Division), Shimla in CMP No. 43-6/2015 in Case No. 56-1 of 14/11. 2. “Key facts” necessary for the adjudication of the present petition are that respondent No.1-plaintiff (herein after referred to as ‘plaintiff’ for convenience sake) filed a suit for recovery of Rs.15,00,000/- on account of damages against the petitioner as well as respondents No.2 and 3. According to the averments made in the plaint, plaintiff’s mother was admitted in District Hospital Nahan, District Sirmaur for delivery. Petitioner was the gynecologist posted in District Hospital Nahan at the relevant time and respondent No. 3 was posted as Orthopedic surgeon in the said hospital during relevant period. Petitioner was the attending doctor on the mother of plaintiff but she did not make herself available for delivery of baby. Father of the plaintiff made various request to the attending nursing and para medical staff of the hospital to call the petitioner but she failed to turn up. In these circumstances, Dr. Lila Aggarwal came forward for the delivery of baby though she was only an orthopaedic surgeon. Plaintiff suffered severe injury at the time of birth. His right arm had no sensation and was diagnosed for ‘Erb’s Palsy” caused in the process of delivery. He remained under treatment. Plaintiff suffered 50% permanent disability. He could not join Army or other armed force. He was facing mental block with respect to his personality. He suffered the aforesaid disability and consequent trauma, mental agony due to the negligence on the part of petitioner and respondent No.3 at Shimla. Suit was filed on attaining age of majority on 6.4.2010. 3. Petitioner filed an application under Order 7 Rule 10 CPC for dismissal of the suit for lack of jurisdiction. According to the averments made in the application, plaintiff has claimed damages on account of injuries suffered by him during the process of delivery. Cause of action has neither taken place nor the petitioner and respondent No.3 Rita Bherwal and Leela Aggarwal resided within the jurisdiction of the learned trial Court. Reply was filed by the plaintiff to the application. It was specifically averred in the reply that the petitioner has already taken objection to this effect in the written statement and the Court below was bound to decide the issues together. Reply was filed by the plaintiff to the application. It was specifically averred in the reply that the petitioner has already taken objection to this effect in the written statement and the Court below was bound to decide the issues together. Petitioner has not prayed that this issue be decided as a preliminary issue. Application filed was to delay the proceedings. Learned Civil Judge (Senior Division), Shimla dismissed the application on 5.8.2015. 4. Trial Court has framed following issue on 13.11.2014:- “5. Whether this court is not having jurisdiction as alleged? … OPD” 5. Application has been preferred under Order 7 Rule 10 CPC at a stage when suit was listed for recording evidence of the plaintiff. 6. Mr. G.D. Verma, learned Senior Advocate has vehemently argued that the suit was not maintainable for lack of territorial jurisdiction. Mr. Satyen Vaidya, learned Senior Advocate has drawn the attention of the Court to Section 19 CPC. It is clear from a plain reading of Section 19 that where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts. In the present case, though delivery has taken place at Nahan, however, plaintiff has had side effects of the same when he was brought up at Shimla. He has suffered 50% disability as noticed herein above. 7. A Learned Single Judge of Bombay High Court in State v. Sarvodaya Industries reported in AIR 1975 Bombay 197 has held that the phraseology used by section 19 about "the wrong done" would clearly take in not only the initial action complained on but its result an effect. Learned Single Judge has further held that deals with cases of compensation for wrong done to the person or movable property is wide enough to take in those places where plaintiff or person complaining actually suffered the loss because of the alleged wrongful act notwithstanding the place of such wrongful act clearly furnishing place of action. Learned Single Judge has further held that deals with cases of compensation for wrong done to the person or movable property is wide enough to take in those places where plaintiff or person complaining actually suffered the loss because of the alleged wrongful act notwithstanding the place of such wrongful act clearly furnishing place of action. The phrase "wrong done" is indicative of completed action as stated (supra) and is wide enough to take in the results as the basis for the purposes of restitution. The Learned Single Judge has held as under: [13] Provisions of Section 19 are specific in subject and clear in its operation. Firstly, it governs a suit seeking restitutive reliefs of compensation on the basis of wrong done to the person or to movable property. Secondly it offers and furnishes option or choice if the conditions indicated by the qualifying clause are satisfied in that wrong complained of was done within the local limit of one Court while the defendant in fact resides or carries on business within the Local limits of jurisdiction of another Court. Unless both these conditions together are available no question of option or choice for forum can conceivably, arise. The conjunction "and" in the qualifying clause is very much indicative of this result, leaving aside the cases where these conditions together are not available, the matters, of such suit are still governed by other provisions of the Code. It is noticeable that in the body of Section 19 the phrase "the cause of action, wholly or in part" has not been used and it only finds place in Section 20 of the Code. In a suit for compensation "wrong Code. In a suit for compensation "wrong done" "or" "complained of" is the cause of action by which Code understands and contemplates all the bundle of necessary facts capable on proof of sustaining the relief claimed. Compensation clearly posits an injury resulting in loss and damage. Mere injury or wrong without anything more would not suffice to sustain the claim for compensation. It is clear that the phrase "wrong done" is not used in any narrow sense but has to be understood in all its amplitude so as to afford forum and necessary relief. That clearly takes in both cause and effect. Mere injury or wrong without anything more would not suffice to sustain the claim for compensation. It is clear that the phrase "wrong done" is not used in any narrow sense but has to be understood in all its amplitude so as to afford forum and necessary relief. That clearly takes in both cause and effect. Injury or actual wrong may occur at place A but its effect may be felt at places other than 'a' and may effect places 'b' or 'c' Act or actions taking place at a given place may still give rise at places quite different and at all these places and for all those effects, cause would arise seeking compensation. Without resultant loss or its proof restitutive justice may not afford any relief nor there could be any remedy in vacuum. Thus the phraseology used by section 19 about "the wrong done" would clearly take in not only the initial action complained on but its result an effect. [14] Putting the matter in terms of Section 20 (c) the resultant damage would surely be the part of cause of action and would feedback the answer for jurisdiction. Assuming, therefore, that both sections are to be read together the same would indicate a overlapping which is not at all attributable to such legislative scheme. It is enough to answer that Section 19, which deals with cases of compensation for wrong done to the person or movable property is wide enough to take in those places where plaintiff or person complaining actually suffered the loss because of the alleged wrongful act notwithstanding the place of such wrongful act clearly furnishing place of action. The phrase "wrong done" is indicative of completed action as stated (supra) and is wide enough to take in the results as the basis for the purposes of restitution. The Court within whose local jurisdiction damage was caused or suffered or sustained would clearly answer the requirements of Section 19 for the purpose of suits mentioned therein. The phrase "wrong done" is indicative of completed action as stated (supra) and is wide enough to take in the results as the basis for the purposes of restitution. The Court within whose local jurisdiction damage was caused or suffered or sustained would clearly answer the requirements of Section 19 for the purpose of suits mentioned therein. The matters option afforded are not relevant nor decisive for this purpose nor the provisions of section 20 (c) The extract of the provisions of the sections 20 (supra) by its opening part indicates that section 19 is striated as limitation upon the generality of the provisions of Section 20 itself, Reading both sections together if a case is not squarely answered by the earlier sections then it may still be answered by Section 20 itself. Its term are thus residuary. Turning to suits for compensations, if any narrow constructions to be placed on the phrase "wrong done" available in Section 19 then the matter still can be answered by Section 20 (c) of the Code. For then Section 19 would indicate and only operate as "part of cause of action" having in mind only the initial act or cause indicated by "wrong done" and not its effect and though the latter as of necessity must be established to have relief, for that reliance will have to be placed on the intendments of Section 20 (c) of the Code. Such dichotomy is not indicated nor such exercise necessary for n the structure of Section 19 itself both parts of cause of action, i. e., the initial act and its effect are capable of being worked out. Therefore, by its contemplation a suit filed in a Court within the local limits of whose jurisdiction the damages was suffered would still uphold its jurisdiction.” 8. It is reiterated that though the plaintiff has suffered injury at the time of birth at Nahan, he has actually suffered loss at Shimla as well. 9. A Learned Single Judge of Gauhati High Court in State of Meghalaya and others v. Jyotsna Das reported in AIR 1991 Gauhati 96, has held that the expression “wrong done” cannot be given restrictive meaning. Place of wrong done to movables includes the place where effect of the wrong done was felt. 9. A Learned Single Judge of Gauhati High Court in State of Meghalaya and others v. Jyotsna Das reported in AIR 1991 Gauhati 96, has held that the expression “wrong done” cannot be given restrictive meaning. Place of wrong done to movables includes the place where effect of the wrong done was felt. The Learned Single Judge has held as under: “[13] The question is whether the expression "wrong done" should be construed to mean only the act which caused the wrong or should also include and cover the effect of the act. There would be no difficulty if only the act which caused wrong has to be taken into consideration for then the place where the act was done would be the place where wrong was done, but in my opinion, it shall not be reasonable and proper to put such a restrictive meaning to the expression "wrong done", which could very well and justifiably include the effect of the act, for " wrong done" is in reality the effect of the 'act'. The 'act' by itself if it does not have any effect or results in causing effect would hardly be actionable, it is its effect which results in harm, loss or damage, etc. which together with such effect constitutes the 'wrong done'. It should consequently follow that if an act is done, say at place 'x' and its effect which constitutes the wrong is at place 'y', it should not be said that the wrong was not done at place 'y', i. e. that it should not be restricted to mean that the wrong was done only at place 'x'.” 10. In the present case also, though, initially, wrong was done at Nahan but its resulting effects and damages/tortuous act of the defendants will also furnish cause of action at Shimla. 11. A Learned Single Judge of the Gujarat High Court in P.P. Prabhakaran v. Medical Officer-in-charge and others reported in 1984 ACJ 747 has held that a Court at a place where the resulting effects of the wrong are felt or suffered also has jurisdiction to try the suit. The phraseology used by Section 19 about ‘the wrong done’ would clearly take in not only the initial action complained of but its resultant effect and the damage resulting from the tort will also furnish a cause of action. The phraseology used by Section 19 about ‘the wrong done’ would clearly take in not only the initial action complained of but its resultant effect and the damage resulting from the tort will also furnish a cause of action. The Learned Single Judge has held as under: “16. Masolkar, J. having considered the rival views which were put for his consideration, observed as under : "Compensation clearly posits an injury resulting in loss and damage. Mere injury or wrong without anything more would not suffice to sustain the claim for compensation. It is clear that the phrase "wrong done" is not used in any narrow sense but has to be understood in all its amplitude so as to afford forum and necessary relief. That clearly takes in both cause and effect. Injury or actual wrong may occur at place A but its effect may be felt at places other than 'A' and may effect place 'B' or 'C Act or actions taking place at a given time may still give rise to results effecting persons or property at places quite different and at all these places and for all those effects, cause would arise seeking compensation. Without resultant loss or its proof restitutive justice may not afford any relief not there could be any remedy in vacuum. Thus the phraseology used by sec. 19 about "the wrong done" would clearly take in not only the initial action complained of but its resultant effect."” 12. There is neither any illegality nor perversity in the Order dated 5.8.2015 rendered by the learned Civil Judge (Senior Division), Shimla in Case No. 56-1 of 14/11. 13. Accordingly, there is no merit in the present petition and the same is dismissed. Pending applications, if any, are disposed of.