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Thursday, April 24, 2014

The maxim res ipsa loquitur- Patient admitted in hospital while strolling in the Hosptial received major injuries by fall - Hospital trust is liable to pay compensation due to inadequacy of vigilance on the principles of IPSA LOQUITUR - suit decreed for 7 lakhs - appeal and cross appeal - appeal was dismissed cross appeal for enhancement was allowed to 11 lakhs - second appeal and cross appeal - Apex court held that as the trial court and appellant court not accepted the plea of defendant that the plaintiff himself voluntarily jumped through the Window on sound discussion and upheld the application of IPSA LOQUITUR = ASHISH KUMAR MAZUMDAR ... APPELLANT (S) VERSUS AISHI RAM BATRA CHARITABLE HOSPITAL TRUST & ORS. ... RESPONDENT (S) = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41442

The maxim res ipsa loquitur- Patient admitted in hospital while strolling in the Hosptial received major injuries by fall - Hospital trust is liable to pay compensation due to inadequacy of vigilance on the principles of IPSA LOQUITUR - suit decreed for 7 lakhs - appeal and cross appeal - appeal was dismissed cross appeal for enhancement was allowed to 11 lakhs - second appeal and cross appeal - Apex court held that as the trial court and appellant court not accepted the plea of defendant that the plaintiff himself voluntarily jumped through the Window on sound discussion and upheld the application of IPSA LOQUITUR  =

Suit No. 3413 of 1991 filed by one Ashish Kumar Mazumdar  (hereinafter
referred to as ‘the plaintiff’) was decreed by a  learned  Single  Judge  of
the High Court of Delhi awarding a sum of Rs. 7 lakhs with  interest  @  12%
per annum on account of damages  for  injuries  suffered  by  the  plaintiff
while undergoing treatment in the  Batra  Hospital,  Delhi.
The Division Bench of  the
High Court by a common order dated 23.12.2009 dismissed the appeal filed  by
the defendant trust and allowed the appeal filed by the plaintiff  enhancing
the amount of damages awarded from Rs. 7 lakhs to  Rs.  11  lakhs  alongwith
interest @ 12% per annum.  Not satisfied,  the  plaintiff  has  filed  Civil
Appeal No.4010 of 2010, whereas aggrieved by the dismissal  of  its  appeal,
the defendant trust has filed the connected appeals (Civil Appeal Nos. 4011-
4012 of 2010).
The learned Trial Judge came to the conclusion that, having regard  to
the layout of the room and the  location  of  the  window  and  also  having
regard to the precarious health condition of the plaintiff  on  the  day  of
the incident (he was running high fever), it was not possible to accept  the
contention of the defendant that the plaintiff had  himself  jumped  out  of
the window resulting  in  the  injuries  sustained.=

The maxim res ipsa loquitur in its classic form  has  been  stated  by
Erle C.J.

      (1)   “……..where the thing is shown to be under the management of  the
           defendant or his servants, and the accident is such  as  in  the
           ordinary course of things does not happen if those who have  the
           management use proper care, it affords reasonable  evidence,  in
           the absence of explanation by the defendants, that the  accident
           arose from want of care.”[1]


      The maxim applies to a case in  which  certain  facts  proved  by  the
plaintiff, by itself, would call  for  an  explanation  from  the  defendant
without the plaintiff having  to  allege  and  prove  any  specific  act  or
omission of the defendant.

9.    In Shyam Sunder and Others vs. The State of Rajasthan[2] it  has  been
explained that the principal function of the maxim is to  prevent  injustice
which would result if the plaintiff was invariably  required  to  prove  the
precise cause of the accident when the relevant facts  are  unknown  to  him
but are within the knowledge of the defendant.  It was also  explained  that
the doctrine would apply to a situation  when  the  mere  happening  of  the
accident is more consistent with the negligence of the defendant  than  with
other causes.=
 On a consideration of the facts of the present  case  we  do
not find any error in the application of the principle of res ipsa  loquitur
to the present case.  In so far as the findings of  negligence  and  absence
of due care of the defendant is concerned, we are  of  the  view  that  such
findings being concurrent  findings  of  fact  the  same  ought  not  to  be
reopened by us in the appeal filed by the defendant-hospital  under  Article
136 of the Constitution.  Any such exercise would  be  wholly  inappropriate
to the extraordinary and highly discretionary jurisdiction  vested  in  this
Court  by  the  Constitution.  Even  otherwise,  we  do  not  find  anything
inherently improbable or outrageously illogical in the  conclusions  reached
by the learned Trial Judge as affirmed in appeal.  The appeals filed by  the
defendant-hospital are, therefore, dismissed.

11.   Insofar as the quantum of compensation is concerned,  we  are  of  the
view that the three broad heads considered by the Division Bench  for  award
of damages are sufficiently representative of the claim  of  the  plaintiff.
The precise quantum of compensation that should  be  awarded  in  any  given
case  cannot  and,  in  fact,  need  not  be  determined  with  mathematical
exactitude or arithmetical precision.   So  long  the  compensation  awarded
broadly represents what could be the entitlement of a claimant in any  given
case the discretion  vested  in  the  trial  court  and  the  regular  first
appellate court ought not to be lightly  interfered.   Taking  into  account
the facts before us and having regard to the basis  on  which  damages  have
been awarded, we do not  consider  the  same  to  be  either  inadequate  or
inappropriate so as to justify interference.  Accordingly, the appeal  filed
by the plaintiff is also dismissed.

12.  Consequently and in the light of the aforegoing discussions, both  sets
of appeals are dismissed.

2014 ( April.Part ) judis.nic.in/supremecourt/filename=41442
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA
                                REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL  NO. 4010 OF 2010


ASHISH KUMAR MAZUMDAR        ...  APPELLANT (S)

                                   VERSUS
AISHI RAM BATRA CHARITABLE
HOSPITAL TRUST & ORS.             ...   RESPONDENT (S)

                                    WITH

                     CIVIL APPEAL NOS. 4011-4012 of 2010


                               J U D G M E N T

RANJAN GOGOI, J.


1.    Suit No. 3413 of 1991 filed by one Ashish Kumar Mazumdar  (hereinafter
referred to as ‘the plaintiff’) was decreed by a  learned  Single  Judge  of
the High Court of Delhi awarding a sum of Rs. 7 lakhs with  interest  @  12%
per annum on account of damages  for  injuries  suffered  by  the  plaintiff
while undergoing treatment in the  Batra  Hospital,  Delhi.   The  aforesaid
judgment and decree passed on 02.12.2008 was  challenged  in  appeal  before
the Division Bench of the High Court by the defendant in the suit  i.e.  the
trust managing the hospital (hereinafter referred to  as  ‘the  defendant’).
The plaintiff had also filed a separate appeal challenging  the  quantum  of
damages awarded and seeking enhancement thereof.  The Division Bench of  the
High Court by a common order dated 23.12.2009 dismissed the appeal filed  by
the defendant trust and allowed the appeal filed by the plaintiff  enhancing
the amount of damages awarded from Rs. 7 lakhs to  Rs.  11  lakhs  alongwith
interest @ 12% per annum.  Not satisfied,  the  plaintiff  has  filed  Civil
Appeal No.4010 of 2010, whereas aggrieved by the dismissal  of  its  appeal,
the defendant trust has filed the connected appeals (Civil Appeal Nos. 4011-
4012 of 2010).

2.    We have heard Mr.  S.B.  Upadhyay,  learned  senior  counsel  for  the
plaintiff and Mr. S.S. Khanjuda, learned counsel for the defendant.

3.    According to the plaintiff, he was admitted as an  indoor  patient  in
the Batra Hospital on 27.10.1988 and was lodged in Room No.305 on the  third
floor of the hospital.  He was running high fever and  was  in  a  delirious
state.  In the night intervening 31.10.1988 and 01.11.1988,  at  about  2.20
a.m., the plaintiff’s sister, one Kajal, who was staying  with  him  in  the
room had noticed the absence of the plaintiff from the room.   She  promptly
informed the staff nurse on duty and a search was  conducted  to  trace  out
the plaintiff in the course of which a security guard, Hans Raj,  found  the
plaintiff lying on the ground floor in the oncology gallery of the  hospital
and at a distance of 50 yards from a point immediately below the  window  of
room No. 305.  The plaintiff suffered multiple fracture of lumbar  vertebrae
with complete dislocation of  the  spinal  cord  and  despite  treatment  he
became a paraplegic i.e. 100% disabled below the waist.  Though  the  plaint
is silent on the circumstances in which the  injuries  were  caused  or  the
manner in which the same were sustained, according to the plaintiff,  as  at
the time of the incident he was an indoor patient in  the  hospital  it  was
the duty and responsibility of the hospital authorities to take care of  the
plaintiff who was suffering from high fever and was in  a  delirious  state.
The plaintiff had alleged that it is on account of the absence  of  due  and
reasonable care on the part of the hospital authorities  that  the  incident
could occur disabling the plaintiff for the rest of his life.  According  to
the plaintiff though the  injuries  suffered  by  him  had  not  immediately
affected his employment as a Junior Assistant in Punjab  National  Bank  the
same had severely affected his service prospects.  Accordingly, the suit  in
question was filed seeking damages to  the  extent  of  Rs.  58  lakhs;  the
claim,  however,  was  restricted  to  Rs.  25  lakhs  on  account  of   the
plaintiff’s inability to pay the requisite court fee  on  the  rest  of  the
amount.

4.    The defendant trust, in its written statement,  took  the  stand  that
the hospital had permitted the plaintiff’s sister to stay in the room as  an
attendant and that the plaintiff had himself jumped out  of  the  window  of
his room despite  the  presence  of  his  sister  leading  to  the  injuries
suffered.   On the said broad facts the defendant denied the  allegation  of
negligence and absence of due care on its part as claimed by  the  plaintiff
in the suit.

5.    On the basis of the pleadings of the parties, the learned Trial  Judge
framed four issues for trial in  the  suit.  Five  witnesses  including  the
plaintiff himself (PW-1), his sister    (PW-2) and his brother  (PW-3)  were
examined.  One Dr. R.K. Srivastava (PW-5) was also  examined  to  prove  the
disability  certificate  showing  the  extent  of  the  disability  of   the
plaintiff.  To controvert the case  of  the  plaintiff,  the  defendant  had
examined one Dr. Arun Dewan (DW-1) who had treated  the  plaintiff  and  the
security guard Hans Raj (DW-2) who had found the  plaintiff  in  an  injured
state.

6.    The learned Trial Judge came to the conclusion that, having regard  to
the layout of the room and the  location  of  the  window  and  also  having
regard to the precarious health condition of the plaintiff  on  the  day  of
the incident (he was running high fever), it was not possible to accept  the
contention of the defendant that the plaintiff had  himself  jumped  out  of
the window resulting  in  the  injuries  sustained.   On  the  contrary  the
learned Trial Judge came to the conclusion that  the  facts  established  by
the evidence on record attracted the principle of  res  ipsa  loquitur  and,
therefore, it was for the defendant to prove the absence of  any  negligence
and due care and attention on  its  part.   Proceeding,  the  learned  Trial
Judge was also of the view that  duty  of  a  hospital  is  not  limited  to
diagnosis and  treatment  but  extends  to  looking  after  the  safety  and
security of  the  patients,  particularly,  those  who  are  sick  or  under
medication and therefore can become delirious and incoherent.  Adverting  to
the facts before him, the learned Judge took the view  that  it  is  evident
that in the present case the plaintiff, who was suffering from  high  fever,
had gone out for a stroll in the middle of the night being unable to  sleep.
 His absence from the room on being noticed by his sister  (PW-2)  a  search
was organized and the plaintiff was found lying on the ground floor  in  the
oncology gallery of the hospital with the  injuries  in  question.   On  the
said basis, the learned Trial Judge concluded that,  in  the  present  case,
the hospital should be held liable for not maintaining the  necessary  vigil
in the hospital premises to ensure the safety of its patients and it  is  on
account of the absence of such vigil that the plaintiff,  despite  his  poor
health, was able to walk  around  and  in  the  process  had  sustained  the
injuries in question.  So far as the quantum of damages  is  concerned,  the
learned Trial Judge quantified the same at Rs.7 lakhs  along  with  interest
at 12% per annum thereon.

7.    In appeal, the Division Bench reiterated the findings recorded by  the
learned Trial Judge holding the same to be justified in the totality of  the
facts proved in the case.  Additionally, the Division Bench was of the  view
that the plaintiff was entitled to a total amount of Rs.11 lakhs by  way  of
damages which was quantified in the following manner :

|(i)       |For loss of future prospects in   |Rs. 4,00,000.00       |
|          |employment                        |                      |
|(ii)      |For keeping an attendant          |Rs. 4,00,000.00       |
|(iii)     |For non-pecuniary loss including  |Rs. 3,00,000.00       |
|          |pain and suffering, loss of limb  |                      |
|          |etc.                              |                      |



      The aforesaid amount of damages was directed to carry interest  @  12%
from the date of filing of the suit i.e. 29.10.1991.

 8.   The maxim res ipsa loquitur in its classic form  has  been  stated  by
Erle C.J.

      (1)   “……..where the thing is shown to be under the management of  the
           defendant or his servants, and the accident is such  as  in  the
           ordinary course of things does not happen if those who have  the
           management use proper care, it affords reasonable  evidence,  in
           the absence of explanation by the defendants, that the  accident
           arose from want of care.”[1]


      The maxim applies to a case in  which  certain  facts  proved  by  the
plaintiff, by itself, would call  for  an  explanation  from  the  defendant
without the plaintiff having  to  allege  and  prove  any  specific  act  or
omission of the defendant.

9.    In Shyam Sunder and Others vs. The State of Rajasthan[2] it  has  been
explained that the principal function of the maxim is to  prevent  injustice
which would result if the plaintiff was invariably  required  to  prove  the
precise cause of the accident when the relevant facts  are  unknown  to  him
but are within the knowledge of the defendant.  It was also  explained  that
the doctrine would apply to a situation  when  the  mere  happening  of  the
accident is more consistent with the negligence of the defendant  than  with
other causes.

10.   We have  considered  the  case  of  the  respective  parties  and  the
evidence adduced in support thereof; the judgment under appeal  as  well  as
the view taken  by  the  learned  Trial  Judge  besides  the  arguments  and
contentions advanced  before  us.   The  learned  courts  have  applied  the
principle of res ipsa loquitur to the present case to  cast  the  burden  of
proving that there was no negligence  on  the  defendant.   Thereafter,  the
learned Trial Judge as well as the Division Bench  of  the  High  Court  has
held the defendant liable for negligence and failure to  take  due  care  of
the plaintiff who was an indoor patient  in  the  hospital.   The  aforesaid
conclusions reached is on an elaborate consideration  of  the  evidence  and
materials on record and after a detailed discussion  of  the  stand  of  the
rival parties.  On a consideration of the facts of the present  case  we  do
not find any error in the application of the principle of res ipsa  loquitur
to the present case.  In so far as the findings of  negligence  and  absence
of due care of the defendant is concerned, we are  of  the  view  that  such
findings being concurrent  findings  of  fact  the  same  ought  not  to  be
reopened by us in the appeal filed by the defendant-hospital  under  Article
136 of the Constitution.  Any such exercise would  be  wholly  inappropriate
to the extraordinary and highly discretionary jurisdiction  vested  in  this
Court  by  the  Constitution.  Even  otherwise,  we  do  not  find  anything
inherently improbable or outrageously illogical in the  conclusions  reached
by the learned Trial Judge as affirmed in appeal.  The appeals filed by  the
defendant-hospital are, therefore, dismissed.

11.   Insofar as the quantum of compensation is concerned,  we  are  of  the
view that the three broad heads considered by the Division Bench  for  award
of damages are sufficiently representative of the claim  of  the  plaintiff.
The precise quantum of compensation that should  be  awarded  in  any  given
case  cannot  and,  in  fact,  need  not  be  determined  with  mathematical
exactitude or arithmetical precision.   So  long  the  compensation  awarded
broadly represents what could be the entitlement of a claimant in any  given
case the discretion  vested  in  the  trial  court  and  the  regular  first
appellate court ought not to be lightly  interfered.   Taking  into  account
the facts before us and having regard to the basis  on  which  damages  have
been awarded, we do not  consider  the  same  to  be  either  inadequate  or
inappropriate so as to justify interference.  Accordingly, the appeal  filed
by the plaintiff is also dismissed.

12.  Consequently and in the light of the aforegoing discussions, both  sets
of appeals are dismissed.


                                  ...…………………………CJI.
                                        [P. SATHASIVAM]


                                  .........………………………J.
                                        [RANJAN GOGOI]

                                                       …..........……………………J.
                                        [N.V. RAMANA]

NEW DELHI,
APRIL   22, 2014.
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[1]     Scott v. London & St. Katherine Docks, (1865) 3 H & C 596, 601
[2]    1974 (1) SCC 690

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