STATE OF GUJARAT Vs. BABUBHAI UKABHAI SARVAIYA

JUDGEMENT

(1.) Present appeal has been admitted on the following substantial questions of law:

(2.) The facts of the case briefly summarized are that, Respondent No. 1 - original Plaintiff filed Special Civil Suit No. 101 of 2001 before Court of Civil Judge (Senior Division), Dhoraji claiming compensation of Rs. 3,00,000/- for medical negligence in performing the family planning operation resulting in death of wife of Appellant No. 1 Prabhaben. It is contended that death of the deceased-wife Prabhaben was caused due to negligence in performance of the said operation by the doctors and the compensation has been claimed on different grounds like love and affection as well as loss of affection suffered by the children. It is stated that, on 23.02.1993, at Government Hospital at village Moti Marad, Taluka: Dhoraji, the deceased-wife Prabhaben was operated upon for aforesaid operation of family planning. However, she succumbed to death due to negligence in administering anesthesia for which suit came to be filed. However, said suit was dismissed by the trial Court on the ground that negligence of Defendant No. 2 -doctor is not proved and Defendants are not liable for the death and sufficient care and caution was taken. It is also observed that cause of death of deceased-Prabhaben is due to vasovagal shock. However on the basis of the evidence the negligence was not accepted. Against the said impugned judgment and order, First Appeal No. 1568 of 2002 came to be preferred before the High Court, which was transferred to the District Court and re-numbered as Regular Civil Appeal No. 173 of 2005. The Presiding Officer, Fast Track Court, Gondal Camp at Dhoraji, allowed the appeal and judgment and decree of the trial Court were set aside and the Plaintiff was held to be entitled for recovery of Rs. 3,00,000/- towards the compensation. The lower Appellate Court has, while appreciating the material and evidence, discussed at length with regard to the medical negligence and has specifically observed referring to the evidence that deceased died due to vasovagal shock as reflected in Exh.45. It was also observed that Dr. Trivedi was not having the degree of expert and skillfulness, who administered the anesthesia. It was also observed that while performing the operation at the initial stage, the deceased died due to dose of anesthesia which can be said to be negligence in performance of operation. It is also observed that, "Doctor has not given tested dose of anesthesia prior to give full dose and thereby it is maltreatment without successful degree in the particular branch and thereby proper care which is required to he taken by doctor is not performed which itself established negligence of Dr. Trivedi." Further, it is observed that, "There is no documentary evidence that what type of dose was administered which is also suggests the negligence of Dr. Trivedi. Doctor Trivedi failed to perform operation for which he was appointed to follow procedure and without his branch for which practice he registered under Medical Council Rules he has practiced as anesthetist, however, he was not having any degree for the said practice which itself is negligence and recklessness of doctor." Reference is also made to a book of Dr. N.J. Modi on Medical Jurisprudence that an anesthetist should be duly qualified man and he should always administer a generally accepted anesthetic after his examining the heart, urine, etc. of the patient." As it can be seen from the evidence on record, reference is made to the Bombay Medical Council Act which defines the Anesthetist. Similarly there is a discussion on this aspect referring to the judgment of this Court Koli Kababhai v. State of Gujarat, 1996 1 GLR 342 as well as the judgment of the Apex Court, in the case of Nazim Institute of Medical Sciences v. Prasanth S. Dhananka and Ors.,2009 2 SCC 218 for the purpose of considering the medical negligence. The P.M. report is at Exh.46 and Forensic Laboratory Report is at Exh.47. The testimony of Dr. Trivedi is at Exh. 61. The cause of death as stated in Exh. 41 is vasovagal shock which is also evident from the P.M. Report Exh. 45. The notes regarding pre-investigation are at Exhs. 49 and 50 which clearly establishes that Dr. Trivedi has administered the anesthesia and he has also admitted the said fact in his cross-examination. It is in background of these facts the submissions are now required to be considered for deciding the present Second Appeal.

(3.) Learned AGP Ms. Pathak has referred to both the judgments and tried to submit that Dr. Trivedi was a seasoned doctor and had performed many operations which has been discussed by the trial Court. She has pointedly referred to the observations made on pages 26, 27, 28 that the allegation levelled by the Plaintiff that doctor has not taken due care and caution as the Prabhaben was given dose of the medicines and injections more than what is required resulting in convulsion and later on death of the deceased is not believed or accepted. She pointedly referred to this discussion and emphasized that as observed in this judgment also the doctor should normally treat the patient as human being and the doctor is a life saver, but he is not God, nor he is a magician. She emphasized that miracles do take place and every such lapse is not necessarily negligence and some times the operation may not be successful as legally it is accepted that there are chances of failure, She, therefore, submitted that the judgment of the trial Court is just and proper and the lower Appellate Court has failed to appreciate the evidence and has erroneously reversed the findings of the trial Court and, therefore, the present Appeal may be allowed.