SHANTI MUKAND HOSPITAL Vs. RINCHU

JUDGEMENT

(1.) THE issue that arises for consideration in this appeal is whether the appellant Shanti Mukand Hospital could be saddled with a liability of making payment of compensation of an amount of Rs. 5. 5 lacs out of the total 7. 5 lacs awarded to the respondent No. 1 who became a victim of rape and grievous injury thereby loosing one eye while being on private duty attending a patient at the aforesaid hospital.

(2.) THE writ petition was filed by the respondent No. 1 herein who is a nurse by profession. She was engaged to render her services to a paralytic patient, namely, Mr. S. K. Kaushik, who was an indoor patient at the appellant Shanti Mukand Hospital. On the night between 6-7 September, 2003, she not only became subjected to sexual assault and violence by a ward boy/ sweeper Bhura engaged by the appellant through a contractor but she also lost her right eye. She filed a writ petition seeking for adequate compensation from the respondent No. 2, Government of NCT of Delhi, respondent No. 3, Guru Teg Bahadur Hospital, which is a hospital run by the respondent No. 2 and also from the appellant Shanti Mukand Hospital, which is a nursing home and being run through a licence issued by the respondent No. 2. In the writ petition there was a further prayer seeking direction to the appellant nursing home for making provision for free medical treatment and a suitable job for herself. The aforesaid writ petition was heard after completion of the pleadings of the parties. On consideration of the records placed and the pleadings, the learned Single Judge held that the respondent No. 1 has undergone a horrific violence and trauma apart from violation of her person leaving her psychologically shattered at a young age of 19 years and that she has also been left with a permanent disability on account of loss of her right eye. The learned Single Judge also considered the factor that she has become handicapped which would not only adversely affect her potential as a professional nurse but also would affect her matrimonial prospects in future. Having considered the fact that the respondent No. 2 had given her some relief and succor by providing her a job, it was held that taking all the factors into account, total compensation of Rs. 7. 5 lacs should be paid to the respondent No. i out of which Rs. 5. 5 lacs should be paid by the appellant nursing home and the remaining 2. 00 lacs should be paid by the respondent Nos. 2and3 herein. As to how the aforesaid amount is to be disbursed to the respondent No. 1 is also recorded by the learned Single Judge in the aforesaid order. Being aggrieved by the aforesaid order passed by the learned Single Judge, the present appeal is filed on which we have heard the learned counsel appearing for the parties.

(3.) COUNSEL appearing for the appellant submitted before us that Bhura who has committed the offence of rape on the respondent No. 1 and inflicted a grievous injury as a consequence of which she lost her right eye is not a direct employee of the appellant and he was employed only through a contractor and, therefore, the appellant could not have been saddled with the aforesaid liability of making payment of compensation to the victim. The next submission of the counsel for the appellant was that in the criminal case the learned Additional Chief Metropolitan Magistrate (ACMM) held that there was no criminal negligence on the part of the appellant in the entire matter and, therefore, the learned Single Judge was wrong in holding that the appellant is liable to pay the aforesaid compensation. Another submission of the learned counsel appearing for the appellant was that disputed questions of fact as to whether or not the respondent No. 1 had suffered any injury and, if so, to what extent, amount of compensation etc. , are matters which are required to be proved and established by filing a civil suit and such a disputed question of fact cannot be decided by filing a writ petition. In support of the said contention the counsel for the appellant relied upon two decisions of the Supreme Court to which reference has been made during the course of discussion in this judgment.