DR. RITA BHERWAL Vs. RAGHAV GUPTA AND OTHERS

JUDGEMENT

(1.) This petition has been filed against Order dated 5.8.2015 rendered by the learned Civil Judge (Senior Division), Shimla in CMP No. 43-6/2015 in Case No. 56-1 of 14/11.

(2.) "Key facts " necessary for the adjudication of the present petition are that respondent No. 1-plaintiff (herein after referred to as 'plaintiff' for convenience sake) filed a suit for recovery of Rs.15,00,000.00 on account of damages against the petitioner as well as respondents No. 2 and 3. According to the averments made in the plaint, plaintiff's mother was admitted in District Hospital Nahan, District Sirmaur for delivery. Petitioner was the gynecologist posted in District Hospital Nahan at the relevant time and respondent No. 3 was posted as Orthopedic surgeon in the said hospital during relevant period. Petitioner was the attending doctor on the mother of plaintiff but she did not make herself available for delivery of baby. Father of the plaintiff made various request to the attending nursing and para medical staff of the hospital to call the petitioner but she failed to turn up. In these circumstances, Dr. Lila Aggarwal came forward for the delivery of baby though she was only an orthopaedic surgeon. Plaintiff suffered severe injury at the time of birth. His right arm had no sensation and was diagnosed for 'Erb's Palsy " caused in the process of delivery. He remained under treatment. Plaintiff suffered 50% permanent disability. He could not join Army or other armed force. He was facing mental block with respect to his personality. He suffered the aforesaid disability and consequent trauma, mental agony due to the negligence on the part of petitioner and respondent No. 3 at Shimla. Suit was filed on attaining age of majority on 6.4.2010.

(3.) Petitioner filed an application under Order 7, Rule 10 Civil Procedure Code for dismissal of the suit for lack of jurisdiction. According to the averments made in the application, plaintiff has claimed damages on account of injuries suffered by him during the process of delivery. Cause of action has neither taken place nor the petitioner and respondent No. 3 Rita Bherwal and Leela Aggarwal resided within the jurisdiction of the learned trial Court. Reply was filed by the plaintiff to the application. It was specifically averred in the reply that the petitioner has already taken objection to this effect in the written statement and the Court below was bound to decide the issues together. Petitioner has not prayed that this issue be decided as a preliminary issue. Application filed was to delay the proceedings. Learned Civil Judge (Senior Division), Shimla dismissed the application on 5.8.2015.