Usha Mehra, J.
(1) It is most unfortunate that the life of plaintiff's wife, Smt. Gayatri Devi had been snatched by the cruel hands, but the question for determination is whose hands were those? Were those of a doctor, attending upon her or of the Supernatural power controlling this universe? If the answer is that those hands were of a doctor then we have to keep in mind that to err is human though all errors are not pardonable nor all errors are deliberate and intentional. ft is only when the error arose out of sheer negligence and carelessness or callous treatment of the patient by the doctor or because of the act of the hospital authority, the aggrieved party would be entitled to claim compensation/damage for having lost the near and dear one. It will thus be called causing death at the cruel hands of that human being the so called doctor.
(2) Smt. Gayatri Devi wife .of the plaintiff Sh. M. L. Singhal, died on 21st August, 1978. Plaintiff filed the suit c
(3) To appreciate the grievances of the plaintiff the facts are' very relevant. Those are that Smt. Gayatri Devi started having general weakness in the last week of .Tune, 1978. On 1st. July. 1978. plaintiff on the recommendation of a common friend took her for treatment to Dr. Pradeep Mathur at defendant No. 2 hospital. It is further the case of the plaintiff that patient's previous history regarding Hood pressure and kidney involvement and the treatment taken by her at Safdarjung Hospital were explained to Dr. Pradeep Mathur. It was also made clear to Dr. Pradeep Mathur that by observing due precautions and care as prescribed earlier by Dr. Chug of SafdarjungHospital this ailment had been kept under control. It was only due to general weakness and not passing urine that. he brought her to him. According to plaintiff Dr. Pradeep Mathur after examining his wife admitted her as an indoor patient on 1st July, 1978. She remained under Dr. Pradeep Mathur's treatment till 21st July, 1978. On 21st July, 1978 Dr. Pradeep Matur discharged her. He assured that he would be attending upon her at her residence. Hence after being discharged she still remained under the treatment of Dr. Pradeep Mathur at her residence. He attended upon her at her residence from 21st July, 1978 to 9th August, 1978. On the advise of Dr. Pradeep Mathur, she was again admitted in the hospital on 9th August, 1978 where she remained till 17th August, 1978. On which date doctor discharged her without plaintiff's consent. At the time of her first admission on 1st July, 1978 Dr. Mathur had been informed that Smt. Gayatri Devi was a patient of kidney disease. Even on examination Dr. Mathur assessed her to be a patient of kidney disease. After conducting the test on her it was found that she was not all that serious and her general condition would improve. However. Dr. Mathur inspire of being aware of her kidney ailment neglected in discharging his duties because during the entire period from 1st July, 1978 to 21st July, 1978, he neither consulted nor availed the services of a nephrology nor treated for her kidney ailment. He thus acted in a very negligent and callous manner. He did not care to have the blood, urine and creative tests performed at regular intervals to ensure proper management in carrying: out her treatment for full 38 days. Per plaintiff, Dr. Mathur was guilty of giving her blood transfusion which was not necessary in her case because she was a patient of kidney ailment. In the process of correcting her anemia she was given blood transfusion which beyond a certain level is harmful and undesirable. But Dr. Mathur never cared to look into the same. He gave her over dose of medicines without any valid clinical grounds. Moreover, she was not put on dialysis to preserve or prolong her life nor Dr. Mathur suggested the same. Instead of safeguarding her from infection she was unnecessarily catheterized while she was unconcious. Even the was not proper urine continued to leak as a result she developed bedsores and severe infection. Defendants were negligent in conducting the necessary test nor cared to consult nephrology at the appropriate time. Because of these gross acts of negligence and callousness on the part of Dr. Mathur and hospital authorities the life of Smt. Gayatri Devi has been lost. Had proper care and treatment been administered her life would have been saved for a fairly long time. She suffered agony at the hand of Dr. Mathur because of his rash and negligent manner of providing treatment and of bad nursing by defendant No. 2. Plaintiff being the husband besides suffering loss of company of his wife also underwent agonising moments seeing his wife undergoing physical and mental torture at the hands of defendants. This torture suffered by plaintiff cannot be compensated hence he restricted his claim only to a nominal amount in this suit.
(4) Defendant No. 1, Dr. Mathur, in his written statement beside raising preliminary objections namely; that for want of joinder of necessary party suit is not maintainable: plaint is vague not discloses material particulars; moreover the suit is barred by time, denied plaintiff's claim on merits. He has denied the claim on merits by explaining that he was not the physician consultant in the hospital. He was only one of the Registrars attached to the Cardiology unit of the said hospital which was under the charge of Dr. N. S. Dixit. The other Registrar being Dr. V. K. Tewari. He denied that Smt. Gayatri Devi was brought to the said hospital only to be shown to him or that she was got admitted in the said hospital at his instance. In fact she was admitted in the said hospital as emergency patient in the unit of Senior Cardiologist Dr. N. S. Dixit. Since be was working as Registrar in the said unit under the guidance and supervision of Dr. N. S. Dixit, hence he treated her. Dr. V. K. Aggarwal recorded the case history of the patient. After examining her. Dr. V. K. Aggarwal recorded his observations on the case history. Neither the plaintiff nor Smt. Gayatri Devi at any time disclosed to him or Dr. V. K. Aggarwal that she had suffered kidney ailment earlier nor any document pertaining to her previous treatment in Safdarjung hospital was produced. The fact that she had to had self restricted diet becaues of kidney ailment was also not disclosed. Only ailment mentioned at the time of admission was bypertension. For this she stated she was taking allopathic medicines untill three months before where after the started homeopathy treatment. Diagnosis recommendations or prescription of the previous treatment by Dr. Chug of Safdarjung Hospital was neither shown nor produced at any stage. In the absence of any such disclosure by plaintiff or his wife treatment for her was prescribed on the basis of the case history disclosed by plaintiff and his wife and .on the basis of the observations recorded by Dr. V. K. Aggarwal after examining her. He denied that he treated Smt. Gayatri Devi at her residence between 21st July. 1978 to 9th August, 1978. He, however, did visit piaintiff's residence twice to see his wife but that was at the insistence of Mr. B. S. Mathur the common friend. He denied that on 9th August. 1978, Smt Gayatri Devi was readmitted in the hospital on his advise or that on 17th August, 1978. the discharged her without plaintiff's consent. He denied that he continued to treat her up to 21st August. 1978, According to Dr. Mathur. due attention and care was given to the patient after she was admitted in the hospital. Regular tests were conducted. Even though she was admitted as a non-paying patient in the general ward still best of the treatment was given to her. In fact by concealing the factum of her previous history of kidney ailment and the treatment given by Dr. Chag, the plaintiff himself contributed to the death of his wife. The allegations of callousness in treating her have been denied. The specific instance of negligence leveled against him have been specifically denied by Dr. Mathur. Dr. Mathur besides denying the allegations in the plaint, has filed counter claim against the plaintiff. That is for loss of his reputation. on account of libillous, slanderous and defamatory statements made by the plaintiff in the plaint by writing to other authorities.
(5) Defendant No. 2, i.e. Sir Ganga Ram Hospital in its written statement has denied the charge of poor nursing and negligence in carrying out tests. It has been reiterated that the plaintiff's wife was admitted in hospital under the charge of and in the unit of Dr. N. S. Dixit. It has been denied that Smt. Gayatri Devi was admitted by Dr. Pradeep Mathur. Dr. Pradeep Mathur and Dr. V. K. Tewari were working as Registrars and Dr. V. K. Aggarwal as House Surgeon in the Icc Unit under the charge of Dr. N. S. Dixit. They used to work under the supervision and guidance of Dr. N. S. Dixit. It has been reiterated that Dr. V. K. Aggarwal recorded the case history of the patient at the time of her first admission. Based on the information furnished by the patient and her husband as well as on the basis of preliminary examination conducted by Dr. V. K. Aggarwal, the case history was recorded. Smt. Gayatri Devi was 66 years of age when she was admitted in the hospital on 1st July, 1978. She remained under the overall care of Dr. N. S. Dixit. It has been denied that she was admitted or discharged. from the hospital on the instruction and advise of Dr. Pradeep Mathur. The patient did not produce any medical record, previous prescriptions or information nor disclosed her previous history of kidney involvement ailment. Plaintiff and his wife withheld the material particulars of her previous ailment from the doctors as well as from hospital authorities. The allegations of rash and callous attitude of the defendants in treating or giving medical treatment have been denied. In fact by concealing the material facts and information of her previous kidney ailment, the plaintiff contributed to the death of his wife.
(6) In the replications to the written statements filed by defendants and in his written, statement to the counter claim filed by defendant No. 1 the plaintiff has denied the averments made therein. On the pleadings of the parties following issues were framed:-
1. Whether the suit is bad for non-Joinder of necessary parties? 2. Whether the plaint dues not disclose any cause of action against the defendant OPP-1. 3. Whether the suit as framed is not maintainable? OPD-1. 4. Whether plaint is liable to be rejected on the ground that it does not disclose material particulars OPD-1, 5. Whether Smt. Gayatri Devi, plaintiff's wife remained under the treatment of defendant No. 1 during the period 1-7-1978 to 21-8-1978? OPD. 6. Wether the defendant No. 1 acted in a callous and negligent manner in the discharge of his duty as a doctor while treating plaintiff's wife and as a result thereof plaintiff's wife died prematurely on 21-8-1978? OPD. 7. Whether the plaintiff is entitled to recover a sum of Rs. 1,25,000 from defendant No. 1 as damages? Opd 8. Whether the defendant No. 2 is also liable for the amount of damages because defendant No. 1 was in the employment of defendant No. 2? OPD. 9. Whether the plaintiff defamed defendant No. I and caused him mental agony? OPD-1. 10. If issue No. 9 is decided in favor of defendant No. 1, then to what amount of damages, if any, is the plaintiff liable to pay to defendant No. I? OPD-1. 11. Whether the counter claim is barred by time? OPD. 11-A. Whether the suit is barred by limitation. 12. Relief and against whom.
I have heard Mr. Narottam Vyas for the plaintiff, Mr. Jagdeep Kishore for defendant No. I and Mr. H. L. Raina for defendant No. 2. Issue No. 1
(7) For the determination of this issue, we have to keep in mind that the suit would not lie in the absence of a necessary and proper party, in whose absence the dispute in the suit cannot be properly adjudicated and determined. To find out whether plaintiff has failed to implead such a party in the absence of whom suit cannot be effectively and properly adjudicated, we have to scrutinise the claim as set up and the relief sought. Also to find out whether in the absence of team of doctors working in Icc Unit of defendant No. 2. the claims cannot be determined? According to defendants. Dr. Dixit was the head of the .Department. of Icc Unit of defendant No. 2. Dr. V. K. Aggarwal was Senior Kesident. and Dr. V. K. Tiwari Along with dependant No. 1 were working as Registrars. All these doctors at one or the other time attended the patient. Mr. Jagdeep Kishore contended that all these doctors ought to have been imploded failing which responsibility cannot be fasten defendant No. 1. Defendant No. 1 was one of the doctors working as Registrar under the supervision and guidance of Dr. N. S. Dixit who attended the patient. Dr. Dixit was the consultant and in charge of the Icc Unit. The question for determination is whether in the absence of in charge of the unit and co-doctors, relief as sought cannot be granted. To my mini, the answer will be in the negative. If in a given hospital a team of doctors are working manning a particular unit that by itself will not give cause to an aggrieved party to sue all the doctors. Plaintiff's case through out had been that he went to Sir Ganga Ram Hospital to consult defendant No. I in his personal capacity and on the recommendation of Mr. B. S. Mathur a common friend, it was the defendant No. 1 to whom he narrated the illness of his wife. It was at defendant No. 1's instance that he got his wife. admitted in the said hospital. After admission all formalities started. Plaintiff's grievance is only against defendant No. 1. It was he who had been attending upon the patient and monitoring the medical treatment and management. It has never been plaintiff's case that other team of doctors were also attending upon his wife regularly and at her residence also. In the absence of any allegations of neglect or callous manner attributed to other doctors of the team, plaintiff, to my mind. cannot be compelled to implead other team of doctors. Plaintiff has based his relief on the specific assertion made by him i.e. he had gone to defendant No. 2 hospital only to consult defendant. No. 1. He further stated if defendant No. I had not been working in defendant No. 2, he would not have taken his wife to the said hospital. She was. admitted in the hospital on 1st July, 1978 at the instance of defendant No..1. Initial treatment was also given to her by defending No. 1. Plaintiff was permitted to stay in the hospital Along with his wife in order to lookafter her by defendant No. 1. thereforee, , has personal knowledge regarding treatment prescribed and . medicines administered to his wife by defendant No. 1 and the nursing done by the staff of defendant No. 2 .hospital.. Defendant No. I not only attended his wife in the hospital but also .attended her medical needs by visiting at her residence .after she was discharged from the hospital. According to plaintiff it was defendant No. 1 who told him at the time of her discharge that in case of emergency he would visit her at her residence. During her stay in the hospital in case of any emergency he becalled. Dr. N. S. Dixit was only Consultant heading the Unit. The treatment was in fact suggested and given by defendant No. 1. Case of the plaintiff does not end here, according to him, the defendant No. 1 after discharging his wife from the hospital, visited her at her residence in order to monitor her treatment. He prescribed various medicines at different times. This part of Iris testimony remained unrebutted. Rathen when subjected to cross examination Dr. Mathur admitted he visited the house of the deceased on two occasions between 21st July, 1978 to 9th August, 1978 in older to check the condition of plaintiff's wife though he tried to explain it away by saying that he did so at the instance of their common friend i.e. Mr). B. S. Mathur. From this admission it is clear that Dr. Pradeep Mathur visited the patient at her house on two occasions between 21st July, 1978 to 8th August, 1978. The fact that Dr. Mathur -was attending Smt. Gayatri Devi is proved from this conduct of the defendant No. 1. The Explanationn given by defendant No. 1 that his visits were friendly and at the asking of his friend docs not alter the fact nor create any dent in the case as set up by the plaintiff nor would absolve the defendant No. 1 from his responsibility as doctor. From the facts which have come on record, it is clear that it was defendant No. 1 who had been treating the wife of the plaintiff. He not only looked after Smt. Gayatri Devi in the hospital as an indoor patient but also attended upon at her residence. Plaintiff's statement that first time his wife was discharged at the instance of Dr. Mathur has not been controverter nor rebutted. Moreover, plaintiff's categorical stand that he approached Dr. Mathur in his personal capacity and not as an employee of defendant No. 2 has not been dislodged. Even the defendant No. 1, appearing as his own witness admitted that he got admitted Mrs. Gayatri Devi. It was Dr. Mathur who got her admitted in Icc Unit under the chars of Dr. N. D. Dixit. Nothing turns on .the same because simply she was admitted under the unit of Dr. N. S. Dixit would not mean that she was the patient of Dr. Dixit. Since Dr. Dixit was in charge of the unit hence she was shown to have been admitted in that unit of Dr. Dixit. Dr. Mathur grudgingly admitted that he was told about patient's illness by her husband at the time plaintiff brought her to hospital. Based on that information Dr. Mathur started the initial treatment. However, the history of her ailment was pin down by Dr. V. K. Aggarwal. From the testimony of .the plaintiff it is clear that Smt. Gayatri Devi remained under the treatment of Dr. Mathur. In fact Dr. Dixit being consultant Head might have 'been consulted by defendant No. 1 to .find out whether the treatment prescribed by him was proper or not. But that by itself does not lead to the conclusion that in .the absence of Dr. N. S. Dixit, Dr. V. K. Tewari or for that matter Dr. V. K. Aggarwal the question of negligence attributed to Dr. Matter cannot be decided effectively and properly. Impleading of doctors of the Icc Unit was neither necessary nor proper not it can be said that in their absence the suit cannot be adjudicated properly. Accordingly this issue is decided against the defendants Issued No. 2, 3 & 4
(8) These three issues are common and touch the same legal aspect of the case, hence are taken up together and disposed by one older. Cause of action has not to be seen in isolations- It is based on bundle of facts. Perusal of the plaint shows that platitiff's case is based on specific allegations of negligence of Dr. Mathur and bad nursing by the Hospital staff leading to a hasty death of his wife. It is plaintiff's case that doctor was negligent which he described in the following words 'highly rash, negligent and callous manner of treatment given to deceased Gayatri Devi, as a result of which she died'. This averment itself discloses the cause for his action. The contention of the defendants that these words have been lifted by the plaintiff from other judgments without knowing the significance or meaning of the same The use of these words by itself would not establish negligence. To my mind, this argument has no merits. Plaintiff was not to plead evidence in the plaint. Suffice it was for him to mention the grounds on which he based. his. claim. It was not necessary for the plaintiff to incorporate evidence in the pleadings. Pleadings should be such from the reading of which the case as set up becomes dear to the other side so. that the defendant could take his appropriate defense. Pleadings should not be indefinite or vague. Allegations of negligence and callous manner of treatment and nursing performed by defendants to Smt. Gayatri Devi which according to plaintiff caused her death, are the foundation of his claim. This discloses cause of action. Hence the suit on this ground cannot fail.
(9) So far as issue No. 4 is concerned, reading of the plaint indicates that the plaintiff has claimed Rs. 1,25,000 towards damages on four counts, namely, (i) on account of the premature death of his wife at the age of sixty six years; (ii) the agony suffered by. her during the time she remained indoor patient; (iii) the agony suffered by the plaintiff while seeing her treatment at the. hands of the defendants and (iv) for the loss of company of his wife Admittedly, no breakup of this claim has been given But Mr. Vyas rightly contended that there is no standard to measure the damages for such a loss against each head- Hence the plaintiff claimed jump sum amount by way of damages suffered by him under four heads. Non furnishing of the specific amounts against each head in the plaint by itself is no. ground to throw away the suit. Hence, issues 2 to 4 are decided against the defendants,
(10) Vide issue No. 1. it has been held that Smt. Gayatri. Devi. wife of the plaintiff, was under the treatment of defendant No. 1. It has also come on record by the testimony of Dr. N. S. Dixit that the treatment prescribed by Dr. Mathur was a proper treatment. Admittedly, Dri. Mathur was working as Registrar in Icc Unit under the supervision and guidance of Dr. Dixit. Initial treatment was prescribed and administered by Dr. Mathur which was subsequently confirmed by Dr. Dixit a Senior Consultant of defendant No. 2. From the evidence which has come on record, it can safely be concluded that the patient was prescribed the initial treatment by Dr. Mathur which was subsequently confirmed by the Head and in charge of the Unit. The issue is decided accordingly. Issue No. 6 & 8
(11) These Issues are inter-related and inter-connected hence taken up together. The burden of these issues was on the plaintiff, which the plaintiff has failed to discharge. He has not been able to established by convincing evidence or from medical record that there was negligence and callousness on the part of Dr. Mathur defendant No. 1 For arriving at this conclusion reference can be had to the testimonies of Dr. N. S. Dixit, Dr.D. S. Rana and of defendant No. 1 himself. Dp. Dixit appearing as D2W2 testified that the condition as revealed at the time of admission needed immediate treatment in order to enable her to pass urine. The case history Ex. P/Y was recorded by Dr. V. K. Aggarwal, a House Physician at the time of her admission. This shows the problem suffered by the patient namely slight loss of appetite, inability to pass urine since morning of 1st July. 1978, known hyper tensive for the last four years and progressive weakness for the last six months. Plaintiff had informed that the patient was having treatment three months prior to her admission in respondent No. 2. hospital. That treatment she stopped and thereafter started homeopathic treatment. Ex. P/Y also shows that Cholecystectomy was done 12 years back. There was no history of diabetic or chronic cough or vomiting. On examination anemia was found positive. Dr. Mathur after perusing the report advised the treatment namely administration of 5% glucose lasix. He advised blood tests and other tests on 1st July. 1978 itself. Test report is Ex.. P-l which is dated 3rd July 1978.. The teatment sheet is Exhibit P-2. Urine test done on 2nd July. 1978 shows normal results. Urine reports regarding albumin were found to be normal. Ex. D1W3/1 D1W3/16 are the intake and output charts or urine of Smt. GayatriDevi taken in between 1st. July. 1978 to 21st July. 1978. From these charts it is apparent that the doctor, was monitoring and keeping track in order to ensure about the in juctioning of the kidney. Ex. DIW3/l7 to D1W/19 are charts with respect to patient's temperature, pulse and blood pressure taken at different hours between 1st July, 1978 to 21st July, 1978. These charts show that the blood pressure of Smt. Gayatri Devi was under control There was no sudden fluctuations of the temperature, The blood urea and cretonne were found within limits vide Ex. P-1 as such the involvement of kidney was ruled out. Moreover, the patient had passed urine after administering fluids. On 4th July, 1978 further blood tests were recommended namely for hemoglobin (Hb.) TLC. Dlc and Esr, which show very low percentage of Hb. and anaemic condition vide Ex. Public Witness 2/D1. The Tlc, Dlc reports were normal. This also in a way did not indicate any manifestation of kidney involvement. Various other tests carried out revealed Cyanosis negative, jaundice negative, clubbing negative, lymphadenopathy negative, edema negative and J.V.P. normal. In view of these tests, the liver disease and heart diseases were also ruled out.
(12) On further investigation it was found that the patient was loosing some blood through stool which was detected when stool test was carried out on 8th July, 1978. Gynecological check up was also done. Further blood tests were recommended for Hb' Tlc, DLC. Esr and reticulosive count to find out type of anemia in order to enable the doctor to determine whether the blood loss was due to iron deficiency or due to kidney failure or for any other reason. As per report Ex. Ex.2/D2 and Ex. Public Witness 2/D2A, the Hb. came down to 5.0gm%. It. thereforee, became iMperative to give blood transfusion. If the blood loss had not been supplemented through transfusion the patient would have died. Doctor investigated the cause of anemia and treated accordingly. Blood transfusion was administered over a period of 10 days between 10th July. 1978 to 19th July, 1978 as a result of which the Hb. count increased to 8.5 gm% as per Ex. P-4 and Ex. P-5. Ex. P-3 shows the increase in Hb. counts from 5gm. to 7gm.% on 12th July. 1978. To find out the reason for loosing blood through stool patient was riven barium anima followed by an X-Ray to see whether there could be any intestinal bleeding or not,
(13) Plaintiff in his testimony has reiterated the negligent and callous attitude of defendant No. 1 while discharging his duties as doctor on the following amongst other 'rounds :__
(I)Dr. Pradeep Mathur did not care for. proper management of the patient. Regular tests were not carried out: (ii) Blood transfusion was given inspire of there being no necessity of the same. knowing fully well that the patient was suffering from kidney disease. Indiscriminate blood transfusion resulted in the development of drowsiness, restlessness, vomiting and swelling etc' (iii) Patient was. given overdose of medicines without any valid clinical ground; (iv) Patient was not put on dialysis to preserve or prolong her life, nor such an advise was given to the plaintiff; (v) Patient was unnecessarily catheterized while she was unconscious; (vi) nephrology was not consulted at the appropriate lime.
(14) He further stated that reno gram test was conducted at Safdarjang Hospital but admittedly he never produced or showed the same to defendant No. 1. It is his own case that after the treatment of the patient in Safdrajang Hospital in 1976 he did not get her treated in any other hospital except for getting her blood pressure checked from Cghs Dispensary occasionally. The hospital record produced by defendant No. 2 show that on 2nd July, 1978 and 9th July, 1978 salt level tests were also carried out. Smt. Gayatri Devi was found to be very low in salt level. Salt deficient diet could have made the patient unconscious and ultimately caused death. Dr. D. S. Rana, Specialist nephrology appearing as witness for defendant No. 1 confirmed with approval the treatment given by Dr. Ramesh Khanna, nephrology, who attended upon Smt. Gayatri Devi on 12th August, 1978. Dr. D. S. Rana after going through the photocopies of the hospital record stated that if a patient had been passing urine then there was no harm in giving whole blood especially under the cover of diuratics. Main indication for avoiding whole blood transfusion and giving packed cell in cases of anemia is presence of gross congestive cardiac failure- Perusal of the record of Mrs. Gayatri Devi during her stay in the hospital from 1st July, 1978 to 21st July, 1978 reveals that she never suffered from cardiac failure. On her readmission second time on 9th August. 1978 the treatment given by Dr. Khanna has been re-confirmed by Dr. D. S. Rana. The record shows that the treatment given by the defendant No. I and by Dr. Khaana was proper which was required to be administered to the patient in order to bring her out of the problem she was facing. Dr. Dixit also appearing as witness for defendant No. 1 testified that proper treatment was administered to her. There was no involvement of kidney when she was admitted on 1st July. 1978 which fact has been corroborated on the basis of various test reports and charts.
(15) The initial treatment though prescribed by defendant No. 1 but was approved by Dr. Dixit when visited the Icc Unit the next morning. He found the line of treatment prescribed by Dr. Pradeep MAthur in order. The blood test report Ex. P-1 dated 3rd July, 1978, shows the promptness with which the medical treatment, was given to the patient. She was admitted in the hospital on 1st July, 1978 at 4.30 p.m. Blood sample was taken, as per defendants, on the morning of 2nd July, 1978 and on 3rd July, 1978 report vide Ex. P-1 was received. At that point of time the blood urea was found to be 4 mg% and retaining 1.3 mg%. On the same day urine test was recommended for routine and microscopic examination. Report of the same is Ex. P-2. Since the patient passed urine after intravenous fluids it became obvious that the reason for not passing urine was pre-renal. Dr. Dixit testified that neither the patient nor his relation disclosed past ailment of renal failure- Had it been so, Dr. Aggarwal would have recorded the same in the case history. According to Dr. Dixit when the patient was admitted at the first instance on 1st July, 1978, there was no indication of kidney involvement. It was only on 9th August, 1978 when. she was re-admitted that sign of kidney involvement manifested. There was infact no overdose of medicines. The accusation of the plaintiff in this regard are vague. On the contrary it has come on record that after the initial tests and the treatment given to the patient there was improvement. It was only when she was re-admitted on 9th August, 1978 that the tests of cretonne and blood urea revealed renal involvement. for which nephrology was immediately consulted.
(16) From the evidence which has come on record it can be seen that the involvement of kidney ailment was not there initially when she was admitted on 1st July, 1978. She was found to be suffering from anemia, thereforee, treated for anemia and after conducting the necessary tests for the kidney of anemia, blood transfusion was recommended besides giving iron supplements. It has also been explained that high blood pressure is not necessarily indicative of kidney involvement.
(17) In the testimony of defendant No. 1 it has been stated that a possible kidney problem was not ruled out on 1st July, 1978 and that is why all the tests were carried out to find out if there was any kidney ailment. Since that was ruled out after test reports hence the direction of the treatment was focussed on anemia. Treatment for that was accordingly given. This course of treatment has been approved and confirmed by Dr. N. S. Dixit and Dr. D. S. Rana. Specialists in their field.
(18) Plaintiff appearing as his on witness could not point out any discrepancy in the treatment given to the deceased. His only grievance had been that nephrology ought to have been consulted at the first instance on 1st July, 1978 itself. Non-consultation has been convincingly explained by the defendants. As discussed above, since the blood tests and urine and cretonne tests and blood pressure were -normal, thereforee, involvement of kidney was ruled out. Defendant No. 1 explained that nephrology was not consulted at that stage because kidney involvement was not manifested by them. In this view of the matter, this act of the defendant No. 1 for not consulting a nephrology cannot constitute an act of negligence. Similarly, administering of blood transfusion has been justified. see no reason to disbelieve the Explanationn given by these doctors appearing as witnesses. Rather from the unrebutted and uncontroverted testimony of Dr. D. S. Rana, Dr. N. S. Dixit and that of Defendant No. 1 it stands established that in the circumstances in Which the patient was admitted this was the right course of treatment which any prudent doctor ought to have given and the same was provided by defendant No. 1. As regards dialysis the defendants cannot be held responsible for various reasons, namely, the plaintiff knew that there was no provision of dialysis at Sir Ganga Ram Hospital yet he choose to get his wife admitted there. Hospital record shows the plaintiff removed the patient from the said hospital against medical advise and finally it was a costly affair. Smt. Gayatri Devi was admitted as patient in free patient ward. For these reasons if dialysis was not done then defendant No. 1 cannot be blamed for the same. In fact except for finding possible alternative medical course of treatment, the plaintiff has not been found any palpable neglect in the course of treatment decided and given by the defendant No. 1 as confirmed by Dr. N. S Dixit and Dr. D. S. Rana.
(19) As regards bad nursing and unnecessary catheterization that has been admitted by the defendant No. 1 in his letter Ex. E1/1 dated 5th November, 1978. He, however, tried to explain it away by saying it was normal affair in the hospital. Though catheterisationmay have been necessary as explained by the doctors because of patient having been given antibiotics and in that semi-conscious state she had been passing urine in the bed. But the nursing staff of the hospital had no right to be negligent and allow the urine to spread on the bed or allow the catheter to leak. The nurse and staff could not be careless in the discharge of their duties towards a patient. It has all along been the complaint of the plaintiff that his wife suffered on account of bad nursing and her life shorten because of the same. She developed bed sores which ultimately made her life not only uncomfortable but miserable. The fact that there was nursing and patient developed bed sores has been admitted by Dr. Pradeep Mathur in his letter Ex. D1/1 dated 5th November, 1978. Therein he stated that there was leakage of catheter and the patient developed bed sores because of bad nursing. He admitted vide Ex. D1/1 that good nursing could have postponed the development for a couple of days, but bed sores do invariably develop in a patient lying down for such a long time. Deterioration is a usual story with all chronic renal failures. Bad nursing may not have been the pause of the death of Smt. Gayatri Devi but bad nursing hastened the end. It cannot be ruled out in view of the admission, made by defendant No. .1 vide exhibit D.1/1. Because of bad nursing not only the patient suffered even the plaintiff who was attending upon her also suffered mental torture and agony. From the testimony of the plaintiff-coupled with the admission made by defendant No. 1 vide Ex. D1/1, negligence of defendant No. 2 is clearly established. But at the same time we cannot loose sight of the fact that bed sores. and bad cursing was not the cause of Gayatri Devi's death, it may have contributed in hastening her death. thereforee, to this extent defendant No. 2 is held responsible. issue No. 9, 10& 11
(20) Issues 9, 10 & 11 are taken up together because these are inter-connected and linked. These can be disposed of by one order. In the written statement the defendant No. 1 has raised a counter claim against plaintiff on the allegation that he had been defamed by the plaintiff's acts. The question whether the counter claim is barred by time has a direct bearing on the claim set up by the defendant No. 1. Defendant in. order to establish that he suffered loss of reputation adduced evidence of Sh. A. P. Mathur, D2WI, Administrative Officer of the defendant No. 2. He further proved that defendant No. I was declined the post of Hony. Consultant because of the controversy raised by the plaintiff. To the same effect is the evidence of Dr. N. S. Dixit. D2W2. He was the Member of the Selection Committee. According to Dr. N. S. Dixit, defendant No. I was not considered for the post of Consultant. To my mind, non-consideration of defendant for the post of Hony. Consultant on account of the allegations leveled by the plaintiff does not by itself mean that he had been defamed. Nor it proves that the hospital Administration or Sr. Consultant considered the defendant No. 1 less meritorious or that they started thinking of defendant No. 1 i anyway inferior professionally. Admittedly, plaintiff had raised the controversy regarding proper or non-providing of proper or non providing of proper treatment to the plaintiff's wife. Plaintiff had the bonafide belief that had the defendant No. 1 consulted the nephrology at the very initial stage perhaps his wile could have lived longer. It cannot be said that this presumption of the plaintiff was imaginary. Defendant No. 1st letter exhibit D.1/1 does indicate that defendant No. 1 after preliminary investigations was of the view that Smt. Gayatri Devi's kidney was involved. If a doctor could form such an impression then why the plaintiff could not think so and allege that for kidney treatment a Neurologist should have been consulted. Since the renal failure was not detected inspire of various tests, thereforee, they did not consult the nephrology. But, the fact remains that defendant No. 1 in his letter Exhibited D1/1 admitted that after examining the deceased he formed an opinion that her basic problem was kidney disease. thereforee, the presumption of the plaintiff based on defendant No. 1's opinion cannot be called imaginary. To ex- press a grievance strongly against a. professional does not. amount to defamation by any stretch of imagination. Difference of opinion on the basis of which the plaintiff alleged negligence on the part of defamation by any stretch of imagination. Difference of opinion on layman after consulting other doctors found that blood transfusion ought not to have been given, which doubt he expressed to the defendant No. 1 when he wrote a letter on 14th October. 1978 i.e. Ex. D1. though clarified by defendant No. 1 vide his letter dated 5th November, 1978, Ex.D-1/1. thereforee, if the controversy was raised by the plaintiff regarding the treatment given to his wife that by itself will not amount to lowering the status of the defendant No. 1. So far as defendant No. 2 is concerned, the defendant No. I in his letter Ex. D-1/1 in no uncertain words admitted the negligence of nursing staff. He admitted that there was a bad nursing and leakage of cathetar. He also admitted that good nursing could have postponed the development of bedsores for couple of days. thereforee, being a husband he underwent mental torture and agony by seeing his wife suffering and not being properly looked after by the nursing staff of the hospital. There was leakage of cathetar. bedsores, then naturally plaintiff was bound to complaint. He complained to Medical Council of India or for that matter to different authorities. That by itself would not amount to lowering the status of the defendant No. 1. Filing of a case or raising a bonafide controversy regarding treatment given would not constitute defamation. If for raising this controversy, hospital authorities did not consider the candidature of defendant No. I for the post of Hony. Consultant. The plaintiff cannot be blamed for the same. In fact if he hospital authorities were satisfied that there was no negligence on the part of defendant No. I in discharging of his duties as a doctor and that he worked only as a Registrar under Dr. N. S. Dixit and was not responsible in any manner for the treatment, then the complaints filed by the plaintiff would not have come in the way of the defendant No. 1 for the post of Hony. Consultant. For these reasons I find no merit in the counter claim. Even otherwise the counter claim is barred by time. Article 75 of the Limitation Act prescribes a period of one year for raising a claim for defamation and libel. In this case complaint is dated 20th April, 1979. The incident leading to filing of FIR. took place in August. 1979. thereforee, cause of action arose to defendant No. I in August. 1979. Petition ought to have been filed within one year. Having not done so. the counter claim is barred by time. The contention of Mr. Jagdeep Kishore that cause of action arose on 17th August. 1981 when the plaintiff lodged a criminal complaint in the court on the basis of Fir lodged by the plaintiff, to my mind, has no force. The cause of action did not arise on the filing of complaint in Court, it arose as per his own showing when the Fir was lodged in 1979 and the police called him in the Police Station in the presence of his relations.. That was the time when cause of action arose in favor of defendant No. 1. He having filed the counter claim on 12th April, 1982 for damages beyond, one year hence the counter claims cannot be entertained being time barred. Issues decided accordingly. Issue NO. 11-A & 7
(21) Mr. Jagdeep Kishore at the outset had stated that the issue of limitation be treated as preliminary issue and be decided without deciding other issues on merits. It was made clear that since the issue of limitation is not a pure issue of law but based on mixed questions of tacts and law hence cannot be treated as preliminary issue.
(22) Rule 2 of Order 14 Civil Procedure Code lays down that notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. Sub-rule (2) of Rule 2 of Order 14 further provides that it is only issue of law which has to be tried first, particularly if that issue relates to the jurisdiction of the Court or creates a bar to the institution of a suit on accouant of any law for the time being in force. The question of limitation is a mixed question of law and facts hence has to be taken up Along with other issue on merits.
(23) Mr. Jagdeep Kishore then urged that since this can only be filed under the (The Indian) Fatal Accidents Act, 1855 (In. short the Act), thereforee, provisions of Section 1A of that Act arc relevant for determining the question of liability to pay damages. The claim. of damages amounting to Rs. 1,25.000.00 admittedly does not give any break up. This lumpsum amount has been claimed under four heads as stated earlier. Mr. Jagdeep Kishore contended that in the absence of any break up the claim cannot be entertained The reason why claim be rejected, Mr. Jagdeep Kishore contended would depend upon the decision on issue No. 11A. Since this suit could be filed only under Fatal Accident Act, thereforee, as per Article 85 of the Limitation Act, the suit having been filed after two years is barred by time. Moreover, under Section 1A of the Fatal Accident Act plaintiff being husband of the deceased cannot make any claim on account of suffering of the deceased.
(24) The maintainability of the claim for damages on account of the agony suffered by Smt. Gayatri Devi that cannot be claimed by the plaintiff in a representative capacity. As husband he can claim damages either under the Fatal Accident Act or under the Motor Vehicle Act. Mr. Narottam Vyas's contention that plaintiff could claim damages under general law of tort. to my mind. has no sub- stance. Even a case based on Tort has to be under one or the other provision of some Act. Admittedly, the plaintiff has claimed a lump- sum amount against all the four heads. The question for determination is whether the plaintiff can claim damages for the agony and suffering undergone by his wife The answer is in negative. Section 1A of the Act which is reproduced as under : Section 1A : Suit for compensation- to the family of a person for loss occasioned to it by his death by actionable wrong. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would' (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action' or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whoso death shall have been so caused, and shall be brought by and in the name of the executor, administrator of representative of the person deceased; And in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment of decree shall direct.
(25) The provision of this Section clearly stipulate that being the husband of the deceased he can claim damages, for the death of Smt. Gayatri Devi due to negligence by the defendants. This Section deals with claims to be preferred on the death of a person caused by willful act neglect or default. The claim can be preferred for the benefit of the wife, husband, parents and child, if any, of the person whose death has been so caused. Death will include the suffering but a separate claim on account of suffering cannot be lodged. He can, however, claim for the loss of the company of his wife and connected with that any loss suffered by him in fact in the case shri Kishan Lal through LRs & Ors. v. Shri Mood. Din & Ors., : AIR1994Delhi10 this court awarded compensation to the legal heirs of the deceased for the Joss of the life of their dear one. To the same effect are the observations in the case of Regan v. Williamson 1976 I Wlr 305 where the court held that husband is required to be compensated for the loss of company as well as for the death of his wife which amounts to pecuniary loss for domestic services rendered by her. Plaintiff is claiming damages on account of the negligence of the defendants. Such a claim as representative of the deceased he can make only under the Fatal Accident Act as held by this Court in the case of Smt. Shakuntala Devi v. M.C.D. 1985 Acj 205 .(3) Thus the claim of the plaintiff can only be scrutinised under the said Act.
(26) Section 2 of the said Act deals with the claim for loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum when recovered shall be deemed part of the estate of the deceased. Claim under Section 2 of the said Act has lo be inserted in the suit filed under Section 1 A of the said Act. For raising the claim under Section 2 of the said Act, the period prescribed under Article 82 of the Limitation Act in two years from the date the cause of action accrued.
(27) Article 82 of the Limitation Act deaths with suits to be filed by the executor, administrator and legal representatives under Section , of the Act. Since under the Act only one suit can be brought, thereforee, the period of limitation prescribed under Article 82 would apply to a claim under Section 1A as well as under Section 2 of the Act. In this regard he placed reliance on the decision of this Court in- the case of Smt. Shakuntala Devi V. Mcd 1985 Acj 255. The question of limitation arose in that case. The Court was confronted with a question whether the claim on the basis of negligence of Mcd could be brought with in six months under the D.M.C. Act or the claimant, would be entitled, to bring their claim under the general law. After considering various provisions of law the Court opined that since the death was caused by negligence on the part of the Mcd, hence the claim of the petitioner was covered under the Fatal Accident Act and the period of limitation would be two years. So relying on this judgment, Mr. Jagdeep Kishore contended that in this case also as the claim of the plaintiff is based on the allegation of negligence and carelessness on the part of defendants, thereforee, at best his claim can be covered under the Act. The period of limitation would be two years which in this case expired in August. 1980. Whereas the suit has been filed in February, 1981, i.e. after the expiry of limitation hence the suit is barred by time. Mr. Jagdeep Kishore then contended that the provision of Motor Vehicles Act are not attracted in this case. la order to sfreng then his arguments that the claim based on negligeace. and pecuniary loss caused on the death of the person are covered by the Patal. Accidents Act, he placed reliance on the decision of Supreme Court in the case of Gobald Motor Services v. R.M.K. Veluswami & Ors. : [1962]1SCR929 .(4) In that case the claim was based on the rash and negligent driving resulting in the death. The family claimed compensation. The Supreme Court instead of awarding compensation under the Motor Vehicle Act, which was in force, yet covered the actionable wrong under the Fatal Accidents Act. The Fatal Accidents Act provides for compensation to family members for the loss occasioned on the death of a person caused by an actionable wrong. The allegation of negligence. carelessness and rashness are actionable wrong and. thereforee, case of the plaintiff has to he covered under the Act and not under any other provision of law. He further relied on the case of Dr. Laxman Balkrishnan Joshi v. Dr. Trimbak Bapu Godhole & anr.. : [1969]1SCR206 .(5) The case to that claimant was considered under the provisions of Fatal. Accidents Act for the purpose of awarding the damages. thereforee, any claim based on actionable wrong by the family of the deceased has to be under this Act. The limitation. being two years from the date of death of the person. In. the present case death accrued on 21st August, 1978, hence limitation expired' on 20th August, 1980. The suit having been filed beyond that period is barred by time
(28) Mr. Narottam. Vyas controverting the averments of Mr. Jagdeep Kishore placed reliance on the residuary A ruck 113 of the Limitation Act under which the limitation prescribed for a suit to be filed is three years from the date when the right to sue occurred. According to Mr. Vyas, the right to sue for damages arose for the first time on 1st July, 1978 when the plaintiff's wife was admitted in the Hospital and she was deprived of the assistance of a nephrology and Dialysis facility was also not provided to her. Ultimately when she died on 21st August, 1978, thereby, depriving the plaintiff her company leading to recurring financial loss. The plaintiff's claim is not merely based on account of the death of his wife but also on account of the mental and physical torture he underwent while attending his wife in the hospital. Thus, his case is nut merely based on account of the death of his wife but also on account of being deprived of her company and the mental, agony suffered by him during her life time on account of being neglected by nurses and non-proper treatment. thereforee, Mr. Vyas contended that. his case cannot be covered under the provisions of Article 82 of the Limitation Act. It is only the. residuary Article 113 of the Act which will attract to the facts of this case. The said Act prescribes three years us the period, of limitation. Mr. Vyas further contended that suit has been filed under the general law of damages, thereforee the provisions of Fatal Accident Act are not attracted In this regard he has placed reliance on the decision in the case of averments v. Tedesco. 1926 (2) Kb 227, Mr. Vyas further contended that the cases cited by the defedants a distinguishable because in all those cases family members of the deceased made the clai m on account of loss or the death of the per son. But in this case the plaintiff beside claiming loss of company of the death of his wife has also claimed damages on account of the mental agony suffered by him due to the negligence and callous attitude of the defendants during the time she remained under the treatment of defendant No. 2 as well as of the defendant No. 1 from 1st July. 1978 to 21st August, 1978.
(29) Arguments advanced by both the parties appear to be very attractive at the first glance and these are mind boggling. Mr. Vyas admits that if it was :i case only of claiming compensation or damages on account of the death of plaintiff's wife then the case would be covered under the Fatal Accidents Act. But, since his claims are based on four different heads and one of the claim being damages for mental agony suffered by the plaintiff, thereforee, his case would be covered under the general law and not by this Act. Even otherwise Section I A and Section 2 of the said Act are. distinct. different and independent. The cause of action under Sections 1A & 2 of the Act arc different The Act lays down two heads of damages under Section 1A i.e. right to ask for damages is dealt with while Section 2 gives right to claim damages of any pecuniary loss to the esta.te of the deceased. thereforee, to this extent the contention of Mr. Vyas appears to be Justified that his claim, is not purely based on the loss caused by the death of his wife but also because of the suffering he underwent on account of the bad nursing done by the defendant No. 2 and also according to him for the improper treatment given by the defendant No. 7. thereforee, his all claims cannot be squarely covered under Article 82 of the Limitation Act, Moreover Article 82 of the Limitation Act. deals only with claims covered under Section 2 of the Act. The cause of action under both the sections i.e. Sections 1 & 2 of the Act being different, thereforee. Article 82 as such cannot apply to a case falling under Section 1 of the said Act. But so far as the loss on account of death of his wife is concerned that would apparently be barred because the case has been filed after more than two years.
(30) Now, so far is the question. of damages on account of mental agony is concerned, the plaintiff has not claimed any specific amount. He has claimed reasonable compensation on this account. As already observed while deciding Issues No. 6 and 8 that there was bad nursing by defendant No. 2. which fact has been admitted by the defendant No. 1 a doctor attending upon the. deceased. thereforee, to that extent claim of the plaintiff based on mental torture suffered by him on seeing his wife being not properly nursed and that there, was a leakage of cathetar, he can be compensated was just compensation. Accordingly, I hold that a cum of Rs. 10,000 would be a just compensation on this account payable by defendant No. 2.
(31) In this case end of justice will be met if directions are given to the defendant No. 2 to pay a sum of Rs. 10,000 to the plaintiff towards compensation on account of the mental torture suffered by him because of bad nursing as pointed out above. Ordered accordingly. So far as claims against defendant No. 1 are concerned, these fail as plaintiff failed to establish the same against him. Similarly, counter claim of the defendant No. I also fail with no order as to costs. October 30, 1995.