Dr. Enoch and Dr. Rani Enoch vs Mary Bai

A. Selvam, J.—The defendants/appellants have challenged the judgment decree dated 12/7/1994 passed in Original Suit No. 25 of 1991 by The Sub-Court, Kuzhithurai.

The respondent herein as plaintiff has instituted the Original Suit No. 25 of 1991 on the file of the Sub-Court, Kuzhithurai, praying to pass damages to the tune of Rs. 5 lakhs in favour of her, wherein the present appellants have been shown as defendants.

The nubble of the averments made in the plaint may be stated like thus:

On 20/3/1988, the plaintiff has gone to the hospital of the defendants for treatment. The second defendant has examined the plaintiff. The first defendant has told the plaintiff that she is having pregnancy and also having a tumor in the uterus. The defendants have advised the plaintiff to admit in hospital for getting treatment. On 21/3/1988, the plaintiff has been admitted as in-patient. The Doctors have advised her for undergoing an operation, so as to remove tumor and so that the pregnancy of the plaintiff would be saved. The plaintiff has been in the hospital of the defendants from 21/3/1988 to 27/3/1988. The second defendant has advised the plaintiff to take a scan and accordingly, scan has been taken on 29/3/1988. After seeing the scan report, the second defendant has told the plaintiff that she is having tumor in big size and further, the second defendant has stated that in order to save the child, the plaintiff should undergo operation. The plaintiff has given her consent for doing operation. On 30/3/1988, the plaintiff has once again been admitted in the hospital of the defendants. On 31/3/1988, the defendants have conducted operation. Only after conducting operation, the second defendant has told the plaintiff that there is possibility of getting abortion. The defendants have done operation unnecessarily and also in negligent manner. Due to negligent operation of the defendants, the left kidney of the plaintiff has become damaged. The plaintiff has paid Rs. 4,000/- to the defendants. The plaintiff has also taken treatment from Government Hospital, Parasala and subsequently, she has been referred to Medical College Hospital, Tiruvananthapuram. On 7/7/1988, another operation has been done to the plaintiff. The second operation has become necessitated only due to the negligence on the part of the defendants. Due to mental agony, abortion has taken place. The plaintiff has estimated the damages to the tune of Rs. 5 lakhs. The plaintiff has given lawyers notice to the defendants and they have given a false reply notice. Under the said circumstances, the plaintiff has come forward with the present suit for the relief indicated above.

The material averments made in the written statement filed by the defendants can be stated like thus:

The plaintiff has come to the hospital of the defendants only on 19/3/1988 and not on 20/3/1988. On 19/3/1988, it has been found that the plaintiff is having slight bleeding and it is also suspected a mass in the abdomen. The plaintiff has been advised to admit as in-patient. The defendants have not told that the plaintiff is having tumor in uterus. One Doctor by name Samson Chellakkan has been consulted and he wanted to get a scan report. Accordingly, a scan has been taken and found a growth endangering the pregnancy of the plaintiff. From 21/3/1988 to 27/3/1988, the plaintiff has been in the hospital of the defendants for observation. On 30/3/1988, the plaintiff has been told that a tumor is pressing the uterus and therefore, she needs immediate operation and absolutely, there is no intention on the part of the defendants to give wrong advice to the plaintiff. On 31/3/1988, Doctor Samson Chellakkan has done operation to the plaintiff. The second defendant has not participated in the operation. The operation done by Doctor Samson Chellakkan is absolutely necessary to save the life of the plaintiff. The second defendant is only a gynecologist and not a general surgeon. At the time of operation, the second defendant has sustained a fracture on her left hand due to accident. After operation, the plaintiff is directed to give Rs. 5,400/- and her husband refused to give the same. The defendants 1 and 2 have not conducted operation. There is no merit in the suit and the same deserves to be dismissed.

On the side of the plaintiff, a replication statement has been filed, wherein it is stated that the Doctor Samson Chellakkan has never checked up the plaintiff. Further, it is stated that operation has not been conducted by the said Doctor. The defendants have conducted operation in a cruel manner. So, the suit may be decreed as prayed for.

On the basis of the rival pleadings of the parties, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit to the tune of Rs. 50,000/-. Aggrieved by the judgment and decree passed by the trial Court, the present appeal has been filed at the instance of the defendants.

The learned Counsel appearing for the appellants/defendants has contended strenuously that on 19/3/1988, the plaintiff has come to the hospital of the defendants with a slight bleeding and it is suspected a mass in her abdomen and she has been advised to be under the observation of the defendants and one Doctor Samson Chellakkan has advised to take a scan and accordingly, the same has been done. After seeing the scan report, the said Doctor has advised the plaintiff to undergo operation. On 31/3/1988, the plaintiff has undergone an operation and during operation it is found that a mass containing fluid has been pressing against the uterus and there is no negligence either on the part of the defendants or on the part of the Doctor Samson Chellakkan, who has conducted operation and further, by birth, the plaintiff is having two bladder and two ureter against nature and in order to set right, subsequent operation has been done to the plaintiff in Medical College Hospital, Tiruvananthapuram and since there is no negligence on the part of the defendants, the defendants are not liable to pay the damages claimed in the plaint. But the trial Court without considering the contentions urged on the side of the defendants has erroneously decreed the suit to the tune of Rs. 50,000/- and therefore, the judgment and decree passed by the trial Court are liable to be set aside.

The learned Counsel appearing for the respondent/plaintiff has also equally contended that on 31/3/1988, the defendants have done operation to the plaintiff and ultimately found that there is no tumor in the uterus of the plaintiff and therefore, the defendants have done operation unnecessarily and also negligently and due to the negligence of the defendants, the plaintiff has been forced to undergo second operation. On 6/4/1988, abortion has also taken place to the plaintiff. On 7/7/1988, the plaintiff has undergone an operation in Medical College Hospital, Tiruvananthapuram and due to negligence of the defendants, left kidney of the plaintiff has become damaged and therefore, the defendants are liable to pay the amount claimed in the plaint and further, the defendants have failed to prove that the operation in question has been done by Doctor Samson Chellakkan and the trial Court after analysing all the rival contentions has rightly decreed the suit to the tune of Rs. 50,000/- and there is no inkling to make interference with the well merited judgment passed by the trial Court and altogether, the present appeal deserves dismissal.

In fact, both the counsel have accited some decisions so as to buttress the contentions raised by them. Before dealing with the decisions referred to by both the counsel, it has become indefeasible to find out whether the operation in question has been done to the plaintiff either by the defendants or by Doctor Samson Chellakkan? Before instituting the present suit, the plaintiff has given notice dated 31/1/1989 to the defendants, wherein it has been specifically stated that the operation has been done by the defendants and the same has been marked as Ex.A.24. The reply notice sent by the defendants has been marked as Ex.A.25, wherein it has been specifically stated that surgery has been done to the plaintiff by Doctor Samson Chellakkan.

In order to establish the above aspect, on the side of the plaintiff, P.W.4 has been examined. P.W.4 has stated in her evidence that on 31/3/1988, the plaintiff has undergone an operation and the same has been done in the hospital of the defendants. The second defendant has done the same. During the course of cross-examination, she has stated that at the time of giving evidence she is working in Marthandam Jeyaraj Maruthuvamanai. Further, she has stated that she is not having nursing qualification and studied upto XII standard. From the evidence of P.W.4, the Court can easily discern that due to some despair, P.W.4 has left the hospital of the defendants and now, she is working in Marthandam Jeyaraj Maruthuvamani and since she is having antagonistic attitude against the defendants, she might have given evidence against them as if the operation in question has been done to the plaintiff by the second defendant.

The specific case of the defendants is that the operation has been done by Doctor Samson Chellakkan. He has been examined as D.W.2. He has categorically stated in his evidence that on 21/3/1988, he has examined the plaintiff and given his opinion. Further he has stated that on 30/3/1988, operation has been done to the plaintiff and since water is pressing on the left side of her stomach, complete operation has not been done and liquid has been taken for test. At this juncture, the Court can also look into the evidence of D.W.1. The second defendant has been examined as D.W.1. She has stated in her evidence that the operation in question has been done to the plaintiff only by Doctor Samson Chellakkan. During the course of cross-examination, she has stated that in order to prove that the operation in question has been done by Doctor Samson Chellakkan, records are available in her hospital. But to utter dismay and also for the reasons best known to the defendants, the defendants have not produced any document, so as to prove that the operation in question has been done only by Doctor Samson Chellakkan. Since vital document has not been produced by the defendants, the Court can take adverse inference against them. Therefore, the Court can safely come to a conclusion that the operation in question has been done only by the defendants.

Now, the only question that comes up for consideration in the present case is whether the operation in question has caused abortion to the plaintiff as well as caused the damage to her left kidney. The specific case of the plaintiff is that only due to negligence of the defendants, the aforesaid defects have occurred. The specific case of the defendants is that there is no negligence on the part of them.

At this juncture, it would be apropos to look into the decisions accited by the counsel of both the parties.

The learned Counsel appearing for the appellants has drawn the attention of the Court to the decision reported in State of Punjab Vs. Shiv Ram and Others, , wherein the Honourable Apex Court has held as follows:

Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.

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 learned Counsel appearing for the appellants has also drawn the attention of the Court to the decision reported in Jacob Mathew Vs. State of Punjab and Another, , wherein the Honourable Supreme Court has held that

Simply a surgery has failed, the Doctor cannot be held liable per se by applying doctrine of res ipsa loquitur.

The jurisprudential concept of negligence defies any precise definition. In current forensic speech, negligence has three meanings. They are: (i). a state of mind, in which it is opposed to intention; (ii). Careless conduct; and (iii). The breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in difference circumstances but any one of them does not necessarily exclude the other meanings.

Further, it has been held that,

The essential components of negligence, as recognised, are three: "duty". "breach" and "resulting damage", that is to say:

(i). the existence of a duty to take care, which is owed by the defendant to the complainant;

(ii). The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and

(iii). Damage, which is both causally connected with such breach and recognised by the law, has been suffered by the complainant.

If the complainant satisfies the Court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.

Therefore, from the cumulative effect of the reading of the decisions rendered by the Honourable Apex Court, the Court can cull out the following points.

a. There must be a duty to take care on the part of the defendants.

b. Failure to bestow standard of care amounts to breach of duty.

c. Damage should be connected with such breach and also recognised by law.

d. The person claims damage must satisfy the above ingredients so as to hold other liable for negligence.

In view of the guidelines given by the Honourable Apex Court, it is pellucid that in the instant case, the plaintiff must prove the alleged negligence of the defendants which caused damage to her left kidney and also abortion.

The learned Counsel appearing for the respondent has drawn the attention of the Court to the decision reported in (1998) 4 Supreme Court Cases - 39 (Spring Meadown Hospital and Anr. v. Harjol Ahluwalia Through K.S.Ahluwalia and Anr.), wherein the Honourable Apex Court has held that

When the child suffered damage due to negligence of the hospital, nurse and doctor are liable and both the child and the parents could claim compensation.

The second authority is reported in State of Haryana and Others Vs. Smt. Santra, , wherein the Honourable Supreme Court has held that

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.

In the case referred to supra, a poor lady has undergone sterilization operation at Government Hospital and subsequently, she has become pregnant and delivered a female child. Under the said circumstances, the Honourable Supreme Court has held that the concerned Doctor is totally negligent on his part.

With these legal drops, the facts of the present case have to be analysed. It is an admitted fact that the plaintiff has undergone an operation on 31/3/1988 in the hospital of the defendants. It is also equally an admitted fact that the plaintiff has subsequently undergone an operation on 7/7/1988 by which unwanted parts have been removed.

Even at the risk of jarring repetition, the Court would like to point out that the specific case of the plaintiff is that only due to negligence of the defendants, the plaintiff has got abortion and also her left kidney has become damaged. In view of the decisions rendered by the Honourable Apex Court, the entire burden lies upon the plaintiff to prove the same. The plaintiff has been examined as P.W.1. She has simply narrated the operation undergone by her. One Mercy Sterling has been examined as P.W.2. She has stated in her evidence that from 18/4/1988 to 26/4/1988, the plaintiff has taken treatment in Government Hospital, Parasala. The husband of the plaintiff has been examined as P.W.3. He has simply narrated the treatment given in the hospital of the defendants and subsequent treatment taken in Medical Hospital, Tiruvananthapuram. P.W.4 has stated in her evidence that on 31/3/1988, an operation has been done to the plaintiff in the hospital of the defendants. P.W.5 is a vital witness in the present case. One Sasidharan attached to Medical College Hospital, Tiruvananthapuram has been examined as P.W.5. He has stated in his evidence that he has done operation to the plaintiff. Prior to his operation, the plaintiff has undergone exploratory lapratomic operation. Further, he has stated in explicit terms that normally every human being is having one bladder and one ureter. But the plaintiff is having two bladders and two ureters and the same is congenital defects. Further, he has stated in his evidence that unwanted parts have been removed by operation. Further, he has stated that the plaintiff has had cystic mass and that too also a congenital defect. Further, he has stated that in order to find out the problem which occurred in the stomach of the plaintiff, exploratory lapratomic operation might have been done and that has not caused any defect to the plaintiff. Further, he has opined that there is a possibility of causing damage to the pregnancy due to cystic mass. From the evidence of P.W.5, it is pellucid that only to save the life of the plaintiff, the first operation has been done in the hospital of the defendants. D.W.1 has also clearly stated in her evidence that only to save the life of the plaintiff, the operation in question has been done. P.W.5 has also clearly stated in his evidence that the plaintiff has had congenital defects and the same have caused damage to kidney. Therefore, it is very clear that nothing has happened in the form of defect due to operation in question. Further, the plaintiff has virtually failed to prove that the alleged lapse or negligence on the part of the defendants. In short, there is no clinching and trust worthy medical evidence on the side of the plaintiff so as to prove the alleged negligence of the defendants. In view of the discussion made earlier, it is very clear that the plaintiff has failed to establish the three conditions pointed out by the Honourable Supreme Court in the decision reported in Jacob Mathew Vs. State of Punjab and Another, . Since the plaintiff has failed to prove the conditions culled out by the Honourable Supreme Court, it is needless to say that the present suit is liable to be dismissed.

Now, we have to analyse the judgment rendered by the trial Court. It has already been pointed out in many places that absolutely there is no medical evidence on the side of the plaintiff to prove the alleged negligence of the defendants done at the time of operation in question. In fact, this Court has closely perused the entire judgment passed by the trial Court and the trial Court without considering the clinching evidence adduced by P.W.5 has simply found that there is negligence on the part of the defendants in conducting the operation in question and the same caused abortion and also damage to the left kidney of the plaintiff and ultimately has granted a compensation of Rs. 50,000/-. It has already been narrated the entire evidence given by P.W.5, the Doctor who has done the second operation and he has given the actual evidence. In fact, major portion of the evidence given by him supports the case of the defendants. It is not an adulation to say that the evidence of P.W.5 has debilitated the entire case of the plaintiff. Therefore, the evidence given by P.W.5 remains unshattered and the Court is in a position to accept the same in entirety. Further, the evidence of P.W.5 cannot be belittled on any ground. The trial Court has passed its judgment merely on the basis of inference, surmise and conjecture.

At this juncture, a nice legal question arises as to whether a judgment can be passed merely on the basis of inference, surmise and conjecture?

The law of evidence does not permit conjecture of suspicion having the place of legal proof nor permit them to demolish a fact otherwise, proved by legal and convincing evidence. Further, a presumption of fact cannot be drawn on mere conjecture. Presumption is not in itself evidence. It is a rule concerning evidence. The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and co-incidence of the fact and circumstances and therefore, no judgment can be passed on the basis of inference, surmise and conjecture.

It has already been pointed out that absolutely there is no evidence on the side of the plaintiff to prove the alleged negligence on the part of the defendants. Even at the risk of jarring repetition, the Court would like to point out that the evidence of P.W.5 has completely accinged and frapped the entire case of the plaintiff. Even though the plaintiff has not discharged her obligation enjoins upon her, the trial Court has granted the relief in her favour only on the basis of inference and conjecture. As noted down earlier, the conclusion arrived at by the trial Court is totally erroneous and the same is liable to be set aside. Therefore, viewing from any angle, the finding given by the trial Court cannot be sustained. Since the plaintiff as animadverted to in many places has failed to establish the alleged negligence on the part of the defendants, it is highly impossible and improbable on the part of the Court to grant relief to her. Therefore, it is clear that the present suit is liable to be dismissed. In view of the foregoing narration of both the factual and legal premise, this Court has found considerable force in the argument advanced by the learned Counsel appearing for the appellants and there is no subsisting force in the argument advanced by the learned Counsel appearing for the respondent.

In fine, this appeal is allowed without costs. The judgment and decree passed in Original Suit No. 25 of 1991 by the Subordinate Court, Kuzhithurai are set aside and the suit is dismissed without costs. The plaintiff is directed to pay Court fees to the State Government.