MANOJ KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The above writ petition has been filed by the father of one Vijay Kumar aged about 11 years, who, it is stated, was studying in 1991 in 6th standard in Government High School, Gagal, Tehsil Sadar, District Mandi, H.P. The circumstances which led to the filing of this writ petition are that late Vijay Kumar, the son of the Petitioner appears to have complained of some stomach-ache and pain in legs on 17.1.1991, that he was found also to be running with High temperature, and therefore, taken to the Government Ayurvedic Dispensary at Gagal. After initial treatment since he did not show any sign of improvement, on 21.1.1991, it is stated that the boy was taken to Civil Hospital at Mandi, where he was admitted in the Children Ward as indoor patient and remained under treatment. It is further stated that he remained as indoor patient in the General Ward between 21.1.1991 and 23.1.1991 5 p.m. and thereafter shifted to the private ward in the Hospital. The details are also given about the names of the Doctors, who treated the boy from time to time as also about the Female Health Workers attending on the boy. As misfortune would have it, on 27.1.1991 at 2 p.m. the boy expired and complaining of negligent and reckless treatment in applying and injecting glucose, the above writ petition has been filed claiming a compensation of Rs. 2 lacs by way of damages on account of the death of the son of the Petitioner. The notice under Section 80, Code of Civil Procedure dated 10.6.1991 appears to have been sent. The State of Himachal Pradesh through its Secretary has been impleaded as the first Respondent, the Director of Health Services being the second Respondent and the Chief Medical Officer, Zonal Hospital, Mandi, being the third Respondent. It may be pointed out even at this stage that neither the Doctors, who were attending on him or the Female Health Workers who were supposed to have allegedly applied glucose in a negligent and reckless manner resulting in the death of the son of the Petitioner, have been impleaded as party-Respondents.

(2.) We find from the records pertaining to the case that when the matter initially came up before the Court on 22.9.1992, the then learned Chief Justice and the learned Judge, who constituted the Bench, recorded the fact that the matter in question raised in the writ petition is really a matter for a civil suit and that the Counsel should be ready to substantiate the question relating to the entertainment of the writ petition. Even by the time the said thing could be made out a direction has emanated from this Court to the State to deposit a sum of Rs. 1 Lac, in the Registry, which has been complied with and the said amount was directed to be deposited in a fixed deposit receipt pending disposal of the writ petition. The attempt made by the Petitioner on two occasions to secure payment has been rejected on the ground that only after the disposal of the writ petition at the final stage any such order could be made.

(3.) While matters stood thus, the Director of Health Services, the second Respondent, has filed a reply on behalf of Respondents No. 1 to 3 not only disputing the factual claims alleging negligence and reckless treatment of the son of the Petitioner and disputing further the claim of compensation but a preliminary objection has also been taken contending that the subject-matter of the claim is not and could not be in the form of or espoused through the means of a writ petition invoking the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India and that since the disputed questions of fact and the positive proof of alleged negligence have to be proved by letting in evidence besides substantiating that it is on account of the so-called negligent and reckless treatment that the boy ultimately died, such questions cannot be projected, pursued or vindicated in a proceeding under Article 226 of the Constitution of India. A supplemental affidavit has also been filed by the Deputy Director of Health Services explaining date-wise details of the advice as well as the treatment accorded to the son of the Petitioner.