MADAN GOPAL Vs. RUGMINI

JUDGEMENT

(1.) THE C. M. appellant is the petitioner in an application in the court below under Order XXXIII R. 1 of the Code of Civil Procedure for permission to sue as an indigent person. He seeks recovery of Rs. 6 lakhs from the respondents, who are medical practitioners, as damages for the alleged professional negligence and dereliction of duty.

(2.) THE petitioner is the husband of deceased Mala. He married her on 16-4-1982 and since then she had been residing in her husband's family. THE petitioner and his wife had a very happy married life. By early 1983, Mala was enceinte and was taken to the first respondent Civil Surgeon for pre-natal treatment. THE first respondent examined Mala and assured the petitioner that everything was normal and there would not be any complications. On 19-9-1983, Mala developed labour pain and as directed by the first respondent she was admitted in the Lakshmi Nursing Home run by the 2nd respondent. Both respondents examined Mala and again assured the petitioner that everything was normal and no special treatment or attention was called for. On 20th and 21st, September, 1983 both respondents examined Mala. On 21st, she was removed to the labour room under the direction of the respondents. THEy asked the petitioner to bring two bottles of blood of Group B-positive. Petitioner rushed out in search of blood and brought the blood. On arrival he was told that his wife died after giving birth to a still born child. THE petitioner attributes utter negligence to and want of due care on the part of the respondents. With these allegations petitioner filed the indigent original petition for damages. THE respondents denied the averments in the petition and contended that no negligence was shown by them. THEy also contended that the petition is defective since the parents of the deceased Mala are not impleaded in the suit and that the petitioner's claim being under the provisions of Fatal accidents Act, 1855 the same is barred by limitation. THE indigency of the petitioner was also disputed.

(3.) THE first point that would arise for consideration is whether the petition as framed would come with in the purview of the Fatal accidents Act, 1855. If the claim is one under the provisions of the Fatal accidents Act, 1855, Art. 82 of the Limitation Act would apply and if not, art. 113 is applicable. THE relevant portion in S. 1-A of the (Indian) Fatal accidents Act, 1855 reads as follows -. "ia.-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 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 whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased. "