Neeraj Amarnath Dora vs Nandan Hospital

THE review application which was placed by circulation in accordance with Regulation 15(2) of the Consumer Protection Regulations, 2005 could not be taken up by the Bench, which had passed the order sought to be reviewed as one of the Members (Dr. P.D. Shenoy) had since relinquished charge on expiry of term of appointment on 6.1.2010. The review application was placed before us and we have heard the Counsel for the OP as also authorized representative of the complainant.

THE complainant has filed these proceedings alleging negligence on the part of OPs on account of death of his wife. The case of the complainant is that his wife was admitted in OP No. 1 hospital for diagnostic laproscopy and OP No. 2 while performing laproscopy negligently damaged a major blood vessel causing extreme loss of blood and cardiac arrest resulting in the death of his wife. As against OP No. 3, allegations are found in para No. 15 and in para No. 27. In para No. 15 it is stated that OP No. 3 who had also been called to the operation theatre performed sub-diaphragmatic cardiac massage of the wife of the complainant and even though the cardiac physician Dr. Kazi was present and was more competent and qualified for the same. In para No. 27 it is stated that there was further negligence on the part of the OP Nos. 2 and 3 by not transfusing blood timely and in sufficient quantity despite cardiac arrest due to excessive loss of blood and not taking further steps including arranging a Vascular Surgeon to save the life of the complainant''s wife. The OP No. 3 died during the pendency of the proceedings on 25.2.2009. The complainant, therefore, filed an application for condonation of delay, setting aside of abatement and for bringing his legal heirs on record. It may be mentioned here that two of the legal heirs of OP No. 3 are already on record being OP No. 1, Smt. Nirmala R. Shelat, Proprietor of OP No. 1 and Dr. Ramesh K. Shelat, father of OP No. 3. The daughter of OP No. 3 was sought to be brought on record by filing the said application. In fact, after hearing the parties, it was held that: "The legal heirs may not be liable for medical negligence, if any, proved as against deceased-OP No. 3, yet if the legal representatives inherit property from the opposite party No. 3, then they may be liable to that extent in their representative capacity as legal heirs of opposite party No. 3."

THE above order is sought to be reviewed by the application under consideration on the ground that the said order has been passed without taking into consideration rulings relied upon by the OP. The learned Counsel for the OP had relied upon the rulings of the Andhra Pradesh High Court in G. Jayaprakash v. State of Andhra Pradesh, AIR 1977 AP 20, 22 and ruling of this Commission in Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital and Ors., I (2001) CPJ 45 (NC)=2001 (1) CPR 45 (NC). The OPs have also placed reliance on the said rulings in the review application in support of the proposition that the right to sue does not survive in a case of medical negligence and the legal heirs cannot be ordered to be brought on record. In the reply filed by the complainant it is stated that the matter cannot be reviewed as there is no error apparent on the face of the record and secondly, reliance has been placed on the observations made in the case of G. Jayaprakash v. State of Andhra Pradesh (supra), to the effect that where a tort-feasor''s estate is benefited by the wrong doer, an action would lie against the representative of a wrong-doer.

WE shall refer to the judgment of the Hon''ble High Court in G. Jayaprakash v. State of Andhra Pradesh (supra). In that case a suit had been filed against two doctors for damages on the ground of recklessness and negligence committed by them in performing operation on him. During the pendency of the suit one of them died and the plaintiff sought to bring his Legal Representatives on record. It was held that the death of the doctor extinguished his liability for damages and the suit against him stood abated. The maxim, "action personalis moritur cum persona" was applied to the said case.

THE Hon''ble High Court had placed reliance on the judgment of the Apex Court in Pedasubhayya v. Akkamma, AIR 1958 SC 1042, wherein after considering the scope of Order 22 Rule 1, CPC, it was observed: "The maxim action personalis cum persona has application only when the action is one for damages for a personal wrong" The High Court after considering the law and judgment on the subject has held as under: "From the above discussion, it is clear that the meaning of this maxim is that a personal action dies with the person, and the effect is that the death extinguishes the liability in tort. In other words the death of the party wronged or the wrong-doer brings an end to the cause of action and the right to sue gets extinguished. But this is subject to a qualification, viz., where a tort-feasor''s estate is benefited by the wrong done, an action would lie against the representative of a wrong-doer. The essence of the maxim applies to an action brought for damages for a personal wrong."

THE complainant has placed reliance on the observations of the Apex Court in the later part of the paragraph 8 in the said judgment. In para 9 of the said judgment it has been observed that unless it is shown that the estate of the deceased are wrong-doer was benefited by the tortuous act committed by him, the right to sue does not survive because the personal action is said to die with the person. In the applications filed by the complainant for bringing the legal heirs of deceased-OP No. 3 there was no allegation whatsoever that the estate of OP No. 3 had benefited by the tortuous act alleged to have been committed by him. The Hon''ble High Court further held that: "The learned Counsel could not cite any decision wherein the legal representatives of a doctor were made liable for a personal wrong committed by the doctor in discharge of his duties. It is rather far-fetched to state that the estate of the deceased 3rd defendant, who was the anesthetist, got benefited by his negligent act said to have been committed in the course of an operation performed on the plaintiff, who was a consenting party for the operation." In para 12 the Hon''ble High Court has held further that: "A case of a lawful surgical operation in general negatives the liability. But in a case where actionable negligence is committed by the doctor, which amounts to a personal wrong done by him, he may be liable for damages. But his death extinguishes his liability in tort and the right to sue also gets extinguished. So I see no force in the contention that the 3rd defendant''s estate was benefited by the wrong done by him."

THIS Commission in Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital and Ors. (supra), has taken the same view. In that case, negligence was attributed to Dr. J.S. Makhani who expired during the pendency of the proceedings and his legal heirs were sought to be brought on record. In this case, this Commission had relied upon judgment in G. Jayaprakash v. State of Andhra Pradesh (supra), and held as under: "In a tort of medical discharging his duties and that the cause of action does not survive against his estate or the Legal Representatives. However, in case the trial had been completed and a decree/judgment had been passed against the said deceased, that amount payable under the decree could be recovered from the estate of the deceased and the deceased and in such event the legal representatives of the deceased could be brought on record. But, that did not happen in the present case and even the question whether Dr. Makhani had been negligent in the discharge of his duties as a Surgeon could not be adjudicated upon. In this view of the matter, the maxim action personals moritus cum persona, as a general rule is applicable to actions in torts and, therefore, the cause of action against the party against whom an action in tort is brought is extinguished on his death. The maxim means that personal right of action dies with the person in other words death destroys the right of action. The right to sue will be extinguished. In this connection, a reference be made to the following, among other, rulings."

THIS Commission further held that in the light of the legal position, there was no option but to hold that the present complaint cannot proceed any further against Dr. Makhani.

IN view of the above position, the order passed by this Commission on 27.10.2009 is non-est and contrary to the law laid down in case of G. Jayaprakash v. State of Andhra Pradesh (supra), and Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital and Ors. (supra). In view of this, the review application is allowed and the application for bringing the legal heir, Ms. Pallavi R. Shelat, daughter of deceased OP No. 3 on record is dismissed. Therefore, the application of the complainant for bringing legal heirs on record as also condonation of delay application and setting aside abatement are accordingly dismissed. In the facts and circumstances, there shall be no order as to costs. Application dismissed.