RAJUBHAI NATWARLAL DATANI vs AMBUBHI CLINIC , For the No. 3 : Served.

BY way of this complaint, the complainants have prayed for compensation in the sum of Rs. 9,26,050 with interest @ 18% p.a. on following brief allegation of facts. Complainant No. 1''s wife Madhuben (mother of complainant Nos. 2 to 5) had an occasion to go to the opponent No. 1 hospital/clinic on 21.8.1995 for consultation and curetting. Kamlaben, her neighbour accompanied her. They were knowing that Dr. Ambukumar Patel was alive and would give treatment to her. At that time, opponent No. 2, who has been described as Dr. Smt. Nirmalaben A. Patel and opponent No. 3, who has been described as compounder of opponent No. 2 were present. Madhuben having already 4 children expressed her difficulty of not adding one more child to the family. It has been alleged that opponent No. 2 advised her to go for curetting and she informed opponent No. 3 to perform curetting on said Madhuben although he was not a qualified doctor. After the curetting was performed, when the patient went home she sustained unbearable pain. Hence, she once again went to opponent No. 1 hospital and explained her problem to opponent No. 2 who felt that the case became serious. She advised Madhuben to immediately go to V.S. Hospital but the doctors at V.S. Hospital could not save her life. It has, therefore, been alleged that on account of medical negligence on the part of opponent Nos. 2 and 3, her life came to an end prematurely. The complainants have, therefore, prayed for expenses incurred by them to the tune of Rs. 13,350 plus Rs. 5,000 expenses for obsequies and compensation for loss of life of said Madhuben. Opponent No. 2 has resisted the complaint inter alia saying that the complaint is not maintainable at law, that it is false, fabricated and manipulated and filed with ulterior motive against her, that it is false, frivolous and vexatious, that it is barred by limitation, that it is barred by the principle of misjoinder of parties and multifariousness, that opponent No. 2 was never a doctor or gynaecologist, that opponent No. 3 was, in the past an attendant of late Dr. Ambukumar Patel, husband of opponent No. 2, that Dr. Ambukumar Patel died on 29.7.1995 and his clinic was totally closed for the purpose of any medical consultation or treatment or operation about a week prior to 29.7.2005 as the said deceased doctor was ailing and bed-ridden as also hospitalized, that information about his death was published in Gujarat Samachar newspaper and board was displayed on roadside front door stating that the clinic was closed since 29.7.1995 and that nobody was authorised to work or render service as doctor in that clinic. It has been asserted that the doctor was only personally rendering medical service in the clinic and it was never run by opponent No. 2 who is merely a social worker and attached to voluntary organisation. She is M.A. with sociology and not having any degree or qualification or experience in medical science. She has denied all the allegations made in the the complaint and prayed for compensatory cost in the sum of Rs. 1,00,000 while dismissing the complaint. Opponent No. 3 has not appeared though duly served and has not filed any reply to the complaint. The complainant has filed affidavit in rejoinder at Exh. 8.

PARTIES have placed on record xerox copies of the documents for stating the facts flowing therefrom. Complainant No. 1 and his witness have been examined on oath. Opponent No. 2 has also been cross-examined by the learned Advocate for the complainants. We have heard the learned Advocates for the parties. We have gone through the material placed on record. We have gone through the notes from the text books submitted on behalf of the parties. In the first place we will be required to decide the liability of opponent No. 2. It is interesting to note that complainants have come out with a specific case that opponent No. 2 happened to be a doctor and gynaecologist, that she was present on the day when curetting was performed by opponent No. 3 under her supervision or under her instructions and that she would be vicariously liable for act and/ or omission of opponent No. 3 who was not qualified doctor to perform operation. We are required to test the truthfulness and correctness of these allegations and facts. It is interesting to note from the documents produced by the complainants themselves that on the very day when Madhuben was taken to the V.S. Hospital on 23.8.1995 the complainants came to know about the fact that Dr. Ambukumar Patel was no more and he died much before the day on which the curetting was performed. Xerox copy of the FIR and other papers would also indicate implication of opponent No. 3 as the sole person who had the occasion to attend to Madhuben in absence of any body else. The same has been annexed with list Exh. 4 at Item No. 7. The FIR appears to have been given by complainant No. 1 who has in terms stated that Dr. Ambukumar Patel died on 29.7.1995 and opponent No. 3 who was working as peon in the clinic during the life-time of Dr. Ambukumar Patel performed curetting without having degree licensing him to perform such an operation or management. That precisely would go to indicate that complainant No. 1 was in knowledge that Dr. Ambukumar Patel had died. He also knew the fact that it was only opponent No. 3 who attended to Madhuben. There is not an iota of evidence to sustain the allegation that opponent No. 2 was present at the time of performing curetting. FIR names only opponent No. 3. This is one important circumstance to render a finding that opponent No. 2 clearly appears to have been falsely joined in this complaint. That would take us to the case papers of V.S. Hospital which have been got produced by the complainants. The history which has been stated in the case papers would indicate that there was D/E (dilation and evacuation) done outside by some private doctor. H/o. same one month ago also present. The trouble which was expressed by and on behalf of the patient was with regard to inability to pass urine during past three days. It would, therefore, clearly appear from the history given to the V.S. Hospital that there is no indication of presence of opponent No. 2 in any manner attributed by and on behalf of the complainants at the earliest point of time. Complainant No. 1 has been cross-examined at Exh. 19. He has admitted that he did not accompany his wife on the first day i.e., on 21.8.1995 and Kamalaben, the neighbour accompanied her. In spite of what is stated above with regard to the FIR and the case papers of the hospital, he deposed that according to his say Dr. Ambukumar Patel was present when his wife was so taken to the clinic. He then testified that subsequently he came to know that Dr. Ambukumar had died and the person concerned was opponent No. 3 Maganbhai Manjibhai who was the compounder. A sum of Rs. 350 was paid but no receipt was passed and no prescription was given. In Para 4 of his cross-examination he has admitted that said Maganbhai had accompanied them when his wife was taken to the V.S. Hospital. This evidence clearly contradicts his whole story set out in the complaint insofar as opponent No. 2 was sought to be connected with the incident in question. The matter does not end here. Kamalaben Datania who accompanied Madhuben on 21.8.1995 had deposed in her cross-examination that she came to know on the next day that the patient was taken to V.S. Hospital and that Dr. Ambukumar Patel had already died. It would, therefore, clearly appear that in spite of the fact that complainant No. 1 had positive knowledge about the fact that opponent No. 3 alone had the occasion to perform curetting, though not authorised, he had the courage to join opponent No. 2 and to make false allegations of facts as noted herein above. This would assume importance particularly when it has been submitted that opponent No. 3 continued in possession of the premises of the clinic even after the death of Dr. Patel. We will take ourselves to the legal position with regard to what would be the effect of death of Dr. Patel on the relationship of opponent No. 3 and the deceased. However, in the presence of aforesaid factual scenario, the complainants clearly came before this Commission with allegations of facts which were false to the knowledge of the complainant, with a view to join opponent No. 2 as party opponent.

It has however, been submitted that opponent No. 3 continued to remain in possession of the clinic or part of the clinic. It has come in evidence of opponent No. 2 that that was a rented premises. The clinic was closed as Dr. Ambukumar, her husband died on 29.7.1995. Key of the clinic was not given to anyone but as opponent No. 3 happened to be an old ward boy he was permitted to reside in one room. The house was a rented house and it was to be handed over back to the landlord. Opponent No. 3 was not ready to allow handing over possession of the house and had retained with him key of the clinic. This would clearly go to indicate that opponent Nos. 2 and 3 were not in good terms right from the time Dr. Ambukumar, husband of opponent No. 2 died. It would be interesting to note what was the relationship of Dr. Ambukumar and opponent No. 3 prior to death of Dr. Ambukumar and that can be visualised from the documents produced by the complainants themselves. At page 212 appear copy of notice issued by Labour Commissioner, State of Gujarat in a complaint filed by opponent No. 3 Maganbhai Manjibhai Chauhan against Dr. Ambukumar Patel. The complaint appears to be under the provisions of Payment of Bonus Act, 1965. The summon/notice shows date 20.11.1995. At page 213 appears another summon/notice dated 15.11.1995 in a complaint/proceeding filed by opponent No. 3 against Dr. Ambukumar Patel for reinstatement in service under Section 10(1)(c) of Industrial Disputes Act. It would, therefore, clearly appear that there were labour disputes between the opponent No. 3 on one side and Dr. Ambukumar Patel on the other side during the life-time of Dr. Patel. Thus, opponent No. 3 was in an imposing situation at a point of time when Dr. Patel became ill, confined to bed and ultimately hospitalised. Under such circumstances, it would be absolutely unnatural or improbable to attract any relationship between opponent No. 3 and opponent No. 2 as that of agent and principal or as that of employee and employer. As a matter of fact, there is no such allegation of fact anywhere to suggest that opponent No. 3 was re-employed or employed by opponent No. 2 for any purpose. In the background of such factual situation it is highly improbable that there could be any relationship of master and servant or principal and agent as between opponent No. 2 and opponent No. 3. The relationship that has been canvassed right from the inception is that of master and servant between Dr. Ambukumar Patel and Maganbhai Manjibhai, opponent No. 3 and upon death of Dr. Ambukumar, such relationship factually and legally came to an end. If any act or omission was done by opponent No. 3, opponent No. 2 could never have been attributed any obligation arising from the principle of vicarious liability. Yet, it has been submitted that the key was allowed to be kept with opponent No. 3 and, therefore, the premises remained in possession of opponent No. 3. It has been submitted that on earlier occasion, opponent No. 2 denied about key having been handed over to opponent No. 3, whereas in the cross-examination she admitted that key was allowed to remain with opponent No. 3. Now, this contradiction which has been canvassed on behalf of the complainants has got to be examined in the light of the facts regarding opponent No. 3 filing labour case against late Dr. Patel. The old widow lady aged around 75 years could hardly have any alternative except to see that opponent No. 3 gracefully vacated the premises and it was quite natural on her part to see that either key was allowed to remain with him or to see that the key was given to him for a short stay as stated hereinbefore. That takes the matter neither here nor there. Keeping the keys with the person who was not authorised to practise medicine will not ipso facto go to impose liability upon a person who is not connected with him. The learned Advocate for the complainant has however relied on the provisions contained in Section 182 of the Contract Act which deals with relationship between principal and agent. He proposes to rely upon the note appearing on page 265 of the Digest of Contract Cases by S. Ramakrishna [1914 to 1996] published by Capital Law House and the note reads "it is well settled that the possession of the agent is the possession of the principal Modi and Narendra Jayantilal Modi v. Vadilal Bapalal Modi, AIR 1989 SC 1269. In the present case there is no relationship of principal and agent. The master had already died and the relationship of master and servant as between Dr. Ambukumar and opponent No. 3 came to an end. There is no factual data worth the name to show that relationship of principal and agent between opponent No. 2 and opponent 3 once again stood established. The facts indicate otherwise. Hence, the provision noted above will not be of any assistance to the cause of the complainants against opponent No. 2. In the same book, on page 277, there is a note to the effect that agency will terminate by death of agent or principal. The note is referable to provision of Section 201 of the Contract Act. Thus, by no stretch of imagination, the principle of vicarious liability would be applicable in support of the cause set up by the complainant against opponent No. 2. Reference has been made to a note appearing at page 158 of ''Law of Torts'' by Ratanlal & Dhirajlal, 24th Edition, 2002. It has been noted that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master''s benefit, though no express command or privity of the master is proved. The master will also be liable if the servant while doing the wrongful act was acting within the apparent scope of his authority even though the act was done for his own benefit or for the benefit of some person other than the master. Reference has been made to further note referring to the decision in the case of Ux-bridge Permanent Benefit Building Society v. Pickard, reported in (1939) 2 KB 248, where a Solicitor''s managing clerk obtained an advance of a sum of 500 upon a mortgage of a property by producing to a building society''s Solicitors a fictitious deed. It was not proved that the Solicitor''s clerk actually forged the deed, but he must have known that it was a forged document. The clerk had apparent authority for all that he did in the matter. It was held that so long the clerk was acting within his apparent authority, the master was liable despite the fact the fraud involved forgery. In our considered opinion this note and the decision referred to therein will not be applicable to the facts of the present case as noted above particularly when the master died long before the act/omission which has been complained of in this complaint.

IN above view of the matter, we have no hesitation to find that opponent No. 2 has been falsely implicated in this complaint. Needless to say that opponent No. 1 is name of the clinic which was run by late Dr. Ambukumar and, therefore, there cannot be any liability of such a clinic which did not have any existence in the eye of law or even on the facts of this case subsequent to the death of Dr. Ambukumar Patel. It would, therefore, clearly appear that no relief can ever be granted in favour of the complainants against first two opponents. The facts of the case as set out by the complainant so far as opponent No. 3 is concerned, are not disputed by opponent No. 3. In fact, he has been implicated right from the time FIR was lodged and patient was admitted to the V.S. Hospital. It has also come in evidence that he had accompanied the patient to V.S. Hospital. It can hardly be disputed by him even if he was present in the complaint that he did not hold any degree in medicine or that he did not have any expertise in practising medicine of the kind which he practised on the patient who ultimately died in V.S. Hospital. We need not take ourselves to the detailed papers of the V.S. Hospital. Copy of the post-mortem report has been placed on record. Opponent No. 3 having no authority to practise medicine in any manner whatsoever performed the act of curetting on the patient at his risk. It was a case of negligence per se which has ultimately resulted into her death. It is no doubt true that there are number of variations in respect of her occupation (occupation of the patient-since deceased) and her income. However, even if she was held to be a house-wife, complainants would be entitled to a reasonable compensation which has been time and often held to be a lumpsum amount of Rs. 2,50,000. That would obviously include the expenses as noted hereinabove. This view can be visualised from the decision of the Apex Court in the case of Poonam Verma v. Ashwin Patel, reported in II (1996) CPJ 1 (SC).

BEARING in mind the facts and circumstances of the case, we pass following order: ORDER Complaint against opponent Nos. 1 and 2 is hereby dismissed. BEARING in mind the fact that the complainants are illiterate/less literate, we do not propose to impose cost insofar as opponent No. 2 is concerned. 2. Opponent No. 3 is directed to pay to the complainant lump sum compensation in the sum of Rs. 2,50,000 with running interest @ 6% p.a. from the date of complaint till payment. This direction shall be complied with by opponent No. 3 within 8 weeks from the date on which he receives true copy of this order. If the complainants pray for direct service of true copy of this order, same shall be given to them. This complaint will stand disposed of accordingly. Complaint dismissed.