H RANGANATHAN Vs. V CHANDRASEKAR

JUDGEMENT

(1.) THESE petitions arise in O.S. Nos. 215 and 216 of 1993, which were preferred against the judgment and decree passed in C.S. No. 690 of 1985, wherein a learned single Judge of this Court has granted general as well as special damages to the plaintiff/respondent of Rs. 10,00,000/- and Rs. 7,00,000/- respectively, with interest at the rate of 9% per annum from the date of the suit till the date of the decree and 6% per annum from the date of the decree till realisation with costs payable by the appellants. We have ordered in C.M.P. Nos. 14392 & 14393 on 15.10.1993, as follows:?

(2.) THE contentions raised on behalf of the appellants appear to take the court to the maxim res ipsa loquitur, the rule as to the onus of proof in such a case and the requirements of proof by deductions from established facts etc.

(3.) THE case in hand, however, has been first of its kind in this court and the rules as to damages by way of compensation in case of the alleged medical negligence is not settled by any authority of this court. Judgments of this court such as one in the case of THE Managing Director Dunlop India Ltd. v. S.G. Krishnakumari and others (1992-1-L.W. 625) and the Supreme Court in the case of Shyam Sundar v. State of Rajasthan (AIR 1974 S.C. 890) have recognised that the doctrine of res ipsa loquitur is attracted in the cases of the alleged negligence of the person under whose management and control or at whose hands the accident occurs is in the know of the things and not the person who has suffered the injury. THE maxim is recognised, however, as a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant without having to allege and prove any specific act or omission on the part of the defendant. THE principal function of the maxim is to prevent injustice which would result if a plaintiff was invariably compelled to prove the precise cause of the accident and the defendant responsible for it, even when the facts bearing in the matter are at the outset unknown to him and often within the knowledge of the defendant. But, though the parties' relative access to evidence is an influential factor, it is not controlling. Thus the fact that the defendant is as much at a loss to explain the accident or himself died in it, does not preclude an adverse inference against him, if the odds otherwise point to his negligence. THE extent of this maxim some times has been that the mere happening of the accident may be more consistent with the negligence on the part of the defendant than with other causes. Learned counsel for the appellants have readily acknowledged that medical negligence may be one professional negligence, in which the doctrine of res ipsa loquitur would assume importance and the patient's position is such that he may very well not know and not be able to establish what treatment he received and how his injuries were caused. THEy have submitted that there must be reasonable evidence of negligence audit should not be assumed that there cannot be either external and/or internal causes except any negligence on the part of the Hospital and its Doctors. According to them, the negligence must stem from any act or omission of the Hospital and/or its Doctors and found to have affected the patient adversely for attracting the maxim res ipsa loquitur. THEy have canvassed with vehemance that the Court ought to have taken notice of the stastistical evidence as to operation and its success and should have asked for evidence from the plaintiff as to the alleged negligence. THE main argument of the learned counsel for the appellants for stay before us is that the Court should not assume any negligence and that medical science has not yet reached the stage where the law ought to presume that a patient must come out of an operation better than he went into it. Although the treatment of the plaintiff was under the control of the defendant Doctors, it was not under their sole control in the sense that they could see, observe and react to the immediate effects of the external application of such treatment but not such hidden and unexplained mysteries of the plaintiffs own physiology which developed as a consequence of the treatment that he received at the hands of the Hospital. Learned counsel for the plaintiff/respondent has, however, contended that this should not be taken into account as a ground to stay the operation of the decree at this stage of the proceeding in the appeal, for, according to him, learned single Judge has gone by a specific evidence of one of the defendants who has in Court not stated about any mistake in administration of the Oxygen, but in an earlier letter for the records he has recorded that the plaintiff suffered a condition of post-anoxic encaphalapathy, i.e. damage to the brain after the condition of total lack of Oxygen. THEre is no mistake in the inference of negligence on the part of the defendant Doctors on such evidence and there is also no mistake in awarding compensation based on such evidence.