MOHAMED SHAFI SULEMAN KAZI Vs. VILAS DHONDU KAVISHWAR

JUDGEMENT

(1.) SHRI M.R. Kotwal, the learned Government Pleader, appearing for the appellant State. Sprat from challenging the finding as to negligence of Defendent No. 1 contended that running of hospitals is part of the regal functions of the State and the State can never be held liable for the tortuous acts of its servants when the complained acts of negligence are claimed to have been committed by the servants in the discharge of such regal functions. Reliance is placed on a Division Bench judgment of this Court (Baidya and naik. JJ.). in First Appeal No 620 of 1968 with First appeal No, 852 of 1968 dated 15 -4 -1977. *. The judgment no doubt, supports his contention. One Chandrikabai in that case died in the Government owned hospital after her delivery and sterilisation operation,. The two doctors attending to her operation were alleged to have sutured the wound without caring to remove the cotton swab inserted during the operation. Her death was attributed to this negligence of the doctors. Here husband and children claimed compensation for these tortuous acts from the doctors and also from the Government for its vicarious liability for the negligence of its servants. The trial Court held the doctors to be guilty of negligence and passed a decree against the doctors and the Government. The Division Bench, however, did not find evidence enough to sustain the finding of negligence. The question of any liability for compensation of either of the defendants for any such negligence, obviously could not arise on this finding. Further question whether running hospitals was *Reported in ILR (1980) Bom 660. Part of its regal functions and whether Government could not be vicariously liable for the negligence of its servants also could not arise for decision. Even 46, the learned Judges discussed this point in paras 238 to 253 of their judgment and held that running the hospital was part of the regal functions of the Government and the Government can never be held liable for the tortuous acts of its servants in the discharge of any such delegated regal junctions amongst other, the learned Judges relied on the judgment of the Madras High Court in the case of Etti v. Secretary of State, reported in AIR 1939 Mad 663 and the judgment of the Supreme Court in the case of Management of Safdar Jung Hospital. New Delhi v. Kuldip Singh Sethi, reported in AIR 1939 Mad 663 and the judgment of the Supreme Court in the case in the case of Management of Safdar Jung Hospital. New Delhi v. Kuldip Singh Sethi. Reported in : (1970)IILLJ266SC . Ratio of the earlier Supreme Court judgment in Hospital Mazdoor Sabha's case reported in : (1960)ILLJ251SC was found to have been overruled. The Division bench also seems to have though the ratio in Safdar Jung Hospital case had the effect of making the Supreme Court Judgment in the case of State of Rajasthan v. Mst. Vidhyawati reported in : AIR1962SC933 and Kasturi Lal v. State or U. P. Reported in : (1966)IILLJ583SC and Division Bench judgement in the case of Union of India v, Sugrabai reported in : AIR1969Bom13 , irrelevant. The Division Bench also thought that the Government has to run such hospitals to comply with the directive principles of the Constitution and functions required to be so discharged in compliance with the Constitution, cannot but be held to be regal.

(2.) -8. Shri B. P. Apte, the learned Advocate appearing for the plaintiff, however, relied on a subsequent judgment of the larger Bench of the Supreme Court (Seven Judges) in the case of Bangalore Water Supply v Rajappa reported in : (1978)ILLJ349SC in which ratio of its judgment in Mazdoor Sabha's case is affirmed and that of Safdar Jung Hospital's case is overruled, and contended that ratio of the Division Bench judgment, based on Sardar Jung Hospital case, is no more a good and binding law, This contention appears to us to be well founded.

(3.) THE law laid down in this case has been uniformly followed by the privy Council and all the High Courts in India. The Supreme Court had an occasion to consider the impact of the Constitution thereon in the light of Art. 300 of the Constitution in the case of State of Rajasthan v. Vidhyawati reported in : AIR1962SC933 and in the case of Kasturi Lal v. State or U. P, reported in : (1966)IILLJ583SC . The State was held liable in the former for fortions act of its employee -driver in driving the truck negligently, while it was held not so liable for seizure of the goods negligently in the course of its regal function of investigating an offence. In the latter case Gajendragadkar. C. J. Approvingly summarised the ratio of the Calcutta Supreme Court judgment as follows (at p. 1046) : -