Arun Balakrishnan Iyer and Anr. Vs Soni Hospital and Ors. On 17 June, 2003

Arun Balakrishnan Iyer And Anr. vs Soni Hospital And Ors.
on 17 June, 2003
Madras High Court

Arun Balakrishnan Iyer And Anr. vs Soni Hospital And Ors. on 17 June, 2003
Equivalent citations: AIR 2003 Mad 389
Author: A Rajan
Bench: A Rajan
JUDGMENT A.K. Rajan, J.
1. Suit for damages.
2. The plaint averments are as follows : First plaintiff is the husband of the second plaintiff; first
defendant is the hospital at Jaipur, second and third defendants are the doctors working in the
hospital. The second plaintiff was admitted in the first defendant hospital on 28-9-1989 for removal
of overian cyst and was under the care, advice and treatment of the second defendant who
performed the operation on 29-9-1989 assisted by the third defendant; during the process of
operation, the second defendant came out of the operation theatre and had informed the first
plaintiff who was waiting outside the operation theatre that the second plaintiffs uterus also should
be removed to avoid chances of future surgery; the first plaintiff shocked to hear this and he was not
mentally and psychologically prepared for that; first plaintiff protested saying that the consent of the
second plaintiff should be obtained for removal of the uterus; but the second defendant pleaded
inability as the patient was under anaesthesia, but stated that removal of uterus was necessary; the
first plaintiff under such compulsive circumstances had no other alternative except to leave the
matter to the discretion of the second defendant: after the completion of the operation, second
defendant told the first plaintiff that the uterus had been removed and also insisted that the second
plaintiff should not be told about the removal of the uterus as that might have adversely affect her
recovery and might give her a mental shock; second plaintiff remained under the post-operative care
of the second defendant and was discharged from the first defendant hospital on 6-10-1989. The
second plaintiff continued to be under the advice and treatment of the second defendant; but the
health qf the second plaintiff did not become normal and it resulted in continuous severe stomach
ache; this condition deteriorated day by day and she became acutely anemic. The continued
treatment of the second defendant did not yield any result; second plaintiff was referred to a general
physician for "colic pain" and indigestion by the second defendant and in her opinion, the second
defendant had no gynaecological problem; the first plaintiff put the second plaintiff under the care,
advice and treatment of Dr. Galundiya at Jaipur; in spite of few months' treatment, the second
plaintiff did not improve; therefore, Dr. Galundiya himself referred the second plaintiff to Dr. S. S.
Thambi of Santokhba Durbabhji Medical Hospital at Jaipur; he suspected "intestinal obstruction"
due to post-operative adhesions and advised immediate hospitalisation. He also advised that the
second plaintiff might have to undergo another operation to find out the cause for the decline in her
health; second plaintiff was not mentally prepared for the third operation (the first operation she
had undergone was a caesarian in the year 1987). Hence, the first plaintiff consulted Dr. Junejo of
City Nursing Home at Jaipur and another doctors, but that yielded no result. Therefore, the second
plaintiff refused to stay any more at Jaipur and decided to move to Madras: on 28-6-1990, the
plaintiffs along with their children came to Madras; the second plaintiff was admitted in "Rakhee
Nursing Home" at Madras; subsequently, she was shifted to City Tower Hospital in Madras and was
Indian Kanoon - http://indiankanoon.org/doc/185835/
under the care, advice and treatment of Dr. S. Varadharajan; the x-rays and scans taken did not
reveal anything; the barium test X-pay revealed enlargement of intestine of the second plaintiff;
abscess cavity surrounded by the attachments of intestine was found; Dr. Varadharajan advised her
to go in for an immediate surgery and surgery was performed on 11-9-1990 by Dr. Varadharajan: he
discovered that an abdominal pad measuring 12" x 12" was lying inside her body in the junction of
small and large intestine; the pad was removed: it was found to contain a label naming, "Soni
Hospital"; the technical details of the process and result of the surgery conducted by Dr. S.
Varadharajan on 16-9-1990 are clearly given in the report given by the doctor; thus, it is clear that
the defendants-2 and 3 were grossly negligent in operating on the second plaintiff; they failed to
take necessary care expected of any doctor in performance of Such operation and closed the
abdomen of the patient, opened by them for surgery even without verifying whether any foreign
body still remained inside the body of the patient. The act of removal of uterus without getting the
permission of the patient is unjustified; no emergency could have surfaced during the operation
conducted by the second and third defendants; to warrant a hasty decision to remove the uterus of
the patient; second defendant failed and neglected to diagnose and detect the actual malady of the
patient after the surgery, though it could have been detected had the second defendant taken
appropriate diagnostic measures; second and third defendants are employed in the first defendant
hospital and hence, the first defendant is vicariously liable for the negligence of the second and the
third defendants; the second plaintiff entrusted herself only to the first defendant and therefore, by
necessary implication, the act of negligence in allowing a foreign material to be kept in the abdomen
and closing it is attributable not only to the second and third defendants, but also to the first
defendant; thus all the three defendants are responsible for the acts of negligence and hence they are
jointly and severally liable to compensate the plaintiffs for the loss caused to the plaintiffs
consequent to such negligence. The plaintiffs have suffered a huge loss, but have restricted it to Rs.
15 lakhs; that amount has to be paid by the defendants together with interest at 19.5 per cent.
Because of the unwarranted removal of uterus, the second plaintiff became permanently disabled for
further procreative prospects; on account of the surgery the plaintiffs have been permanently
deprived of having full sexual relationship; this is not only due to the physical condition of the
second plaintiff, but also due to the psychological scare and the traumatic experiences that have left
in the mind of the second plaintiff; the plaintiffs have valued such invaluable losses caused by the
defendants at Rs. 5 lakhs; due to their shifting to Madras, the first plaintiff lost his business; he was
an active partner of a firm called M/s. Soma at Jaipur; the other partner is a nonresident Indian; the
firm had made a net profit of Rs. 4,69,649.02 in the year 1990 and in the next year, Rs. 7,91,326.73;
had the firm continued to make a net profit of Rs. 8,00,000/- every year, it would have fetched not
less than Rs. 3,20,000/- as profit; thus, they lost Rs. 75 lakhs, as future income; further, the
plaintiffs have restricted their claim to Rs. 15 lakhs; thus, the plaintiffs pray for compensation
towards damages a sum of Rs. 15 lakhs together with interest at 19.5 per cent per annum on Rs. 15
lakhs from the date of plaint till the date of realisation and for the costs.
3. In the joint written statement filed by the defendants-1 to 3, it is stated as follows : The present
suit is an abuse of process of law; the plaintiffs have made false and baseless allegations; the suit is
not maintainable in this Court as it does not have jurisdiction to try this case; defendant No. 1 is at
Jaipur and defendants-2 and 3 are permanent residents of Jaipur; even as per the plaint averments,
no part of cause of action arose at Chennai; hence, this Court will not have the jurisdiction to try this
suit; leave to sue was granted on 30-4-1991 was" ex parte without notice to this defendant; hence,
this suit is liable to be dismissed in limine on the question of jurisdiction which may be tried as a
preliminary issue. It is further stated that M/s. Soni Hospital was a proprietorship concern upto
1995; thereafter, it became a public limited company by name, "Soni Medicare". The third defendant
has been impleaded unnecessarily; she did not perform any operation on the second plaintiff, but
was only an assistant to the second defendant. The second defendant is an eminent doctor; she had
been awarded various awards, medals and fellowships and membership to number of professional
organisations of international level; she has also got the prestigious "PFANNEENSTIEL" medal for
excellence in gynaecological surgery and laproscopy in Germany. It is true that the second plaintiff
was admitted in the hospital on 28-9-1989; she was diagnosed as having overian cyst; she was under
the care and advice of the second defendant; operation was performed on the second plaintiff on
29-9-1989 by the second defendant; the fact that the second defendant came out of the operation
theatre and told the first plaintiff about the seriousness of the disease shows that the second
defendant was deeply concerned about the welfare of the patient and the feelings of her relatives and
the fact that she did not want to perform the operation without their consent; during the operation,
it was found that there was serious cyst of ovary about 4" x 4" on the right side; the cyst was twisted
on its pedicle; there were no haemorrhages and oedema of tubes, because of twisting; the ovary on
the cyst on the left side was unhealthy and looking enlarged forming a mass with the tube of that
side which was also edematous and unhealthy; this mass was badly adherent posteriorly with the
uterus; there were also lots of omentel adhesions anteriorly over the previous caesarian scar; the
uterus was bulky and therefore, the second defendant concluded that abdominal hysterectomy with
removal of both the uterus and ovaries was necessary; in this case, the second defendant consulted
the first plaintiff and informed him of the situation; only after explaining all the consequences to
him and taking his consent, the uterus was removed; the surgery was not only imminent, but also
necessary; the first plaintiff never protested against the surgery and that the consent of the second
plaintiff had to be obtained; there was no question of obtaining the consent of the second plaintiff as
she was under general anaesthesia; the first plaintiff gave his consent out of his own free will for the
operation; it is false to say that the second defendant had insisted that the second plaintiff should
not be told about the removal of uterus; when the second plaintiff was discharged from the hospital,
she was absolutely fit and fine and did not make any complaint; the first defendant has no
information of what happened after she was discharged; the plaintiff did not make any complaint to
the second defendant; the averment that any abdominal pad had remained inside the body of the
second plaintiff during the operation is not correct. The defendants are not aware of any treatment
and surgery performed on the second plaintiff by her doctor, Dr. S. Varadarajan in Chennai; the
averments that an abdominal pad with a label reading "Soni Hospital" was found inside the body of
the second plaintiff and that the same was removed are not admitted; the defendants-2 and 3 were,
not negligent during the operation; they had taken all necessary care while performing the surgery;
the minor complaints during post-operative period of convalescence are normal; the defendants
were not negligent nor liable vicariously or otherwise to the plaintiffs; the defendants have exercised
full and utmost care and caution in discharging their professional duty; the removal of uterus was
done only in the interest of the patient and to save her from future complications; the claim of the
plaintiffs is frivolous and misconceived; no cause of action arose against the defendants either at
Madras or at Jaipur. Hence, the suit has to be dismissed with costs.
4. On these pleadings, the following issues were framed :

(1) Whether the defendants were negligent in the medical treatment accorded to the second
plaintiff?
(2) Whether the plaintiffs have jointly suffered a loss on account of the acts of negligence of the
defendants?
(3) Was there any consent from the plaintiff for removing the uterus and ovaries from the second
plaintiff?
(4) Whether the first and third defendants are also liable for the suit claim?
(5) Whether the plaintiffs are entitled to the damages in a sum of Rs. 15,00,000/- as claimed by the
plaintiffs?
(6) Whether the plaintiffs are entitled for interest at the rate of 19.5% per annum from the date of
plaint till realisation?
(7) To what reliefs the plaintiffs are entitled to?
(8) Whether this Hon'ble Court has jurisdiction to adjudicate the suit dispute?
(9) Whether the plaintiffs have any valid sustainable cause of action against the defendants?
(10) Is Dr. Varadharajan's report dated 16-9-1990, proof of presence of an abdominal pad with a
label reading "Soni Hospital" inside the body of the second plaintiff?
5. The issues are re-cast as follows :
(1) Whether this Court has no jurisdiction to try this case?
(2) Whether the defendants are not liable to pay compensation for removing the uterus without
obtaining consent of the second plaintiff?
(3) Whether abdominal pad was not placed in the body of the second plaintiff and omitted to be
removed during operation?
(4) Whether the defendants were not negligent in the medical treatment given to the second
plaintiff?
(5) Whether, the plaintiffs are not entitled to Rs. 15 lakhs towards damages from the defendants?
(6) Whether the plaintiffs are not entitled for interest at the rate of 9% per annum?
(7) To what other reliefs the plaintiffs are entitled?

6. To prove the case, the plaintiffs have themselves examined as P.Ws. 1 and 2 and Dr. Varadharajan
who performed the operation at Chennai has been examined as P.W. 3. On the side of the
defendants, two witnesses, D.2 and D.3 were examined.
7. The substance of the evidence adduced is briefly as follows : Second plaintiff who has been
examined as P.W. 1 has stated that she got married in the year 1983 and was only 28 years of age at
the time of surgery; that she was admitted in D.1 Hospital at Jaipur on 28-9-1989 for a simple
surgery of overian cyst; the second defendant who was attached to the first defendant hospital
performed the surgery with the assistance of third defendant on 29-9-1989; she was administered
general anaesthesia for operation; three months after the operation, she came to know that the
second defendant removed her uterus during operation; after discharge, she became anaemic and
developed severe stomach ache, nausea, vomiting and dehydration and she could not take any solid
diet. Day by day, her health was deteriorating in spite of the post-operative treatment given by the
second defendant; the second defendant told her that her problem was one of general health and
that she should consult a general physician; therefore, D.2 referred her to Dr. Nagpal who also could
not diagnose the problem; she started developing a deep psychic fear and anxiety in living at Jaipur;
hence, she started to put pressure on her husband to go over to Ghennai for treatment; since, her
husband developed a good business at Jaipur, he was reluctant to abandon the good business
developed at Jaipur; her husband consulted Dr. Galundia and then Dr. Thambi at Jaipur, in vain;
she was advised to undergo another surgery; she lost faith in the treatment given in Jaipur and
hence left for Chennai; in Chennai, she was taken to Dr. Ravindran who introduced Dr. S.
Varadharajan; after diagnose, Dr. S. Varadharajan found there was something blocking in and
around her intestines and advised her to undergo an immediate surgery; on 11-9-1990, she was
operated upon by Dr. S. Varadharajan at City Tower Hospital at Chennai; she was told that such an
extraordinary quantum of pus inside; that organs were stuck to one another and that every thing
was due to the presence of a huge foreign material inside which was extracted and found to be an
abdominal pad nearly of the Size 12" x 12"; she was told that the pad had a label reading "Soni
Hospital". This pad was negligently left inside her body during the operation on 29-9-1989 and that
Was the reason for the trouble in the health; since she was afraid of going back to Jaipur, her
husband got out of his business at Jaipur; her husband spent huge sums for her treatment and
surgery and also suffered a huge loss due to the abandoning of his business at Jaipur; all such
expenses and loss were the direct results of negligence of defendants-1 to 3, Exs. P.1 to P.21 are the
documents filed in support of her case. She has stated that due to the negligence of the defendants,
further prospects of procreation is denied which caused great mental agony and impaired her
conjugal life. In the cross-examination, she has admitted that Ex. D. 1 is the admission discharge
record and also only her husband was present during operation in the hospital. Two wrongs were
committed by the second defendant; one is that her uterus was removed without obtaining her
consent, but by obtaining the signature from her husband; the other wrong is that during the
operation, abdominal pad was kept in her stomach; both were done at Jaipur; only for that, she filed
this suit; no wrongs were done within the city of Madras; only because of these two wrongful acts
committed by the second defendant in the first defendant's hospital, she has filed the suit; she has
also stated that she belongs to Madras and' also for good, they came to Madras and the doctor who
treated her is also at Madras and to save them from going to Jaipur as witness, she along with her
husband has filed this suit in this Court. Further, she has stated that she underwent caesarian
operation in 1987 at Jaipur. In the beginning of 1989, Dr. Sarada Rao told her that she had overian
cyst and must undergo a minor surgery and she need not worry about that; that doctor was working
in a common hospital, not in a nursing home and was more than 60 years of age; hence, she went to
Soni Hospital for second opinion, where the hospital deputed second defendant for necessary
treatment. Because she was literally on the death bed and totally unwell; she did not see the swab
removed from her stomach and the swab is not in her possession.
8. The first plaintiff has been examined as P.W. 2; he has stated that on 28-9-1989, when her wife
was operated upon, she was anaesthetized and while she was not conscious, the second defendant
came out of the operation theatre and told him that a crisis has emerged necessitating removal of
her uterus forthwith; he was upset and refused to give consent without his wife's concurrence;
however, the second defendant removed uterus then and there: he told the second plaintiff about
this only after three months since the second defendant instructed him not to divulge this
information to second plaintiff, since she would not withstand the shock at that stage; after the
operation, the second plaintiff suffered from stomach ache, nauses, vomitting and dehydration, etc.;
when enquired, the second defendant stated that it was a problem of general health and she should
consult a general physician and referred to Dr. Nagpal who was also not able to diagnose the
problem; since her health became worse, they also went to Dr. Galundia and Dr. Thambi at Jaipur;
ultimately, they came to Chennai; on 11-9-1990, second plaintiff was operated by Dr. S.
Varadharajan at City Tower Hospital, Chennai; further, he has stated that he was an active partner
of the firm, M/s. Soma at Jaipur; the other partner was one Radhakrishnan, a non-resident Indian
settled in Canada; he was looking after the entire business; Ex. P.22 dated 15-5-1985 is the deed of
partnership; P.W. 2 is entitled to 40 per cent of the share in the profit and loss of the firm; the firm
had lucrative business; Exs. P.23 to 26 are the balance sheets of the firm; during the period,
1990-1993, the firm was not having enough income even for filing returns; Ex. P.29 is the certificate
issued by the auditor to that effect; due to the negligence of the defendants, the plaintiffs suffered
huge loss; hence, the defendants are liable to pay this amount, jointly and severally.
9. P.W. 3 is Dr. S. Varadharajan who performed the operation in Chennai; he has stated that the
second plaintiff complained of pain in her abdomen; initially, he admitted her at Rakki Hospital;
then, he admitted her in City Tower Hospital; barium study was done which revealed that a mass
lesion was found in the terminal ileum; when he tried to remove the mass, he found an abdominal
pad there; he, "removed the pad along with the intestine"; the size of the pad was 10" x 10"; that the
pad removed had on it inscribed the words, "Soni Hospital"; he reported this to the patient's
relatives; he also took photograph of the pad; he had stated that he had been keeping that pad, but,
as he had shifted his practice, he lost the pad; Ex. P-29 is the photograph of the pad; the negatives
were lost along with the pad in 1999; (it was objected for marking since the negatives were not
produced); leaving that pad in the abdomen may cause intestine obstruction, malabsorption,
nutritional deficiency and it would also cause death; Ex. P.6 is the report given by him after surgery.
In the cross-examination, he has stated that he completed his post-graduation in surgery in 1986 in
Government Stanley Medical College Hospital at Madras; Rakki Hospital is at Ambattur; the patient
consulted him at Ambattur; Ex. P. 6 was issued at Ambattur; Ex. P. 6 is not a discharge certificate; it
is the practice that discharge certificate is issued when a patient is discharged; in Ex. P. 6, there is no
reference about the size of the pad or the identity of the hospital in the pad; Dr. Surendran who was
assisting him in the hospital was also present when the pad was removed from the abdomen of the
second plaintiff and two or three nurses were also present; soon after removal of the pad, he showed
it to the attenders and thereafter "kept it in his box"; he removed the box to his residence; it was in
the custody of the theatre sister for some time before he took it to his house; the ab dominal pad that
he removed was made up of many layers of roller gauze; barium meal test did not reveal the
presence of any foreign body, but there were indications of some abnormalities; in Ex. P. 6, he
referred to some of the internal obstructions; ileum is the terminal portion of the small intestine;
however, he has stated that the foreign body removed was made up of cotton; in between the rollers,
there was a gauze stitched; the foreign body may or may not retain strength and texture when
remained in the body; "foreign body was inside to the small intestine"; he cannot say whether six
months' time was sufficient for the foreign body to decay; he has further stated that he "handed over
the removed intestine part with the foreign body inside the theatre assistant"; only thereafter, he
opened it; "foreign body had the shape of the intestine as it was, inside there it was in a rolled
shape"; he had further stated that", a foreign body can get into the intestine without its being
swallowed in it is possible for any foreign object inserted as suggested' in Ex. P. 13 getting itself
deposited in a cavity and reaching the intestine and staying there on account of the negligence of the
patient concerned."
10. The second defendant has been examined as D.W. 1; she has stated that she commenced the
medical practice in the year 1957; she was the Professor and Head of Gynaecology, S.M.S. Medical
College, Jaipur for sixteen years; she is qualified in M.B.B.S., M.S. and also got many diplomas from
KEIL University, Germany and also possesses many medals; she was the Director of Endoscopy also
covering U.P. Punjab and Haryana and trained in Laproscopy; she found that the second plaintiffs
was a case of twisted overian cyst; it was an emergency operation and if delay occurred, it would
have detached due to devascularisation which would lead to massive haemorrhage and ultimately
cause death of the patient; this was explained to the second plaintiff; she had taken consent from the
second plaintiff and then only consented to the operation; Ex. D. 1 is the consent given by the
husband; she performed the operation on 29-9-1989; after opening the abdomen, she found that
there was a cyst which was twisted twice on its pedical; she removed it which was on the right side
and then, she found that tube and ovaries were making a mass which was very badly inflamed and
Was attached to the posterior side of the uterus; if she had not operated it, that would lead to
septicemia; consent was already given for any additional procedure or operation which was
therapeutical in nature; hence, she removed it; after that, she found that the uterus was enlarged
and contained multiple fibroids; uterus being reproductive organ had lost its productive function
due to the removal of the ovaries on both sides; had she left the uterus, it would have led to any kind
of degeneration more severely sacromatus, that is cancer which would have endangered the patient's
life; as a senior doctor, it was her duty and hence, she called the person who had given consent and
explained to him these matters and told him that since the overies had been removed, his wife would
never beget any children in future and that if the uterus with multiple fibroids had been left, it would
lead to another operation, because of sarcomatus in danger; nothing extra was charged for this
extended operation; the first plaintiff told her that he left everything to her decision and that
consent was already given; by removal of uterus, she had done nothing against law; second plaintiff
was under her post-operative treatment for 11/2 months; but she (P.W. 1) had not questioned her as
to why she has conducted such an operation. Further, she has stated that they clipped the tail with
artery forceps and the tail will be left out from the abdomen and no heavy pieces will be left inside
the abdomen; it is the duty of the senior nurses to count the number of sponges, instruments and all
other things that are used for operation; before closing of the abdomen, it is the duty of the senior
surgeon and the assistants to ask the senior nurse as to whether everything was O.K.; when the
senior nurse replies in affirmative, then only, they close the abdomen; if a pad of that size is retained
in abdomen for 11 months, it would have definitely lose its characteristic features; had she left the
pad in the abdominal cavity by mistake, between 30 to 42 days; (1)1 the abdominal sutures would
have burst; the counsel for the plaintiff objected to this question as that would be in the nature of
opinion. (This objection is to be rejected as this witness has a right as well as competence to say
this), (2) burst abdomen, septicemia and peritonitis would have set in and the abdominal and
vaginal vault have burst. But nothing happened to the patient during this time, and there was
nothing wrong. She was not negligent, in any manner; there was no negligence on the part of the
defendants in performing the operation; second defendant is not liable to pay any amount; in the
cross-examination, the has stated that after opening the abdomen, if she had found the ovary on the
left side was normal, she would not have removed it; but she found the left side ovary was unhealthy
and there was tub ovarian mass and hence, she had to remove it; she is not presently working in the
first defendant hospital; she retired in the year 1990.
11. The third defendant has been examined as D.W. 2; in her evidence, she has stated that she is the
Director in the first defendant hospital and consultant gynecologist; she is a post-graduate in
gynecobstetrics; authorisation was taken from the husband of the patient for treatment; she assisted
D.W. 1 during the operation; the progress shows in Ex. D. 1 has been written mostly by her; the
patient was comfortable and fine and there was nothing abnormal till she was discharged; sutures
were re moved and wound got healed; there was no negligence on the part of the doctors; neither of
the plaintiffs ever complained to the hospital about the negligence prior to the suit notice; they are
not liable to pay any compensation.
12. Issue No. 1 : The counsel for the defendant contended referring to the judgment of this Court in
Mitsubishi France v. Neyveli Lignite Corporation Limited, , where a suit to recover damages for
breach of contract was filed and the defendant raised the plea of jurisdiction, the Division Bench of
this Court has held that the issue of jurisdiction has to be tried as a preliminary issue at the first
instance and hence the issue relating to jurisdiction alone shall be decided now. It is true that this
Court has held that, "it would not be proper to decline to try the issue of jurisdiction as a preliminary
issue on the ground that it is a mixed question of fact and law....." But the defendants in this case did
not file such application that the preliminary issue relating to jurisdiction should be tried at the first
instance. The defendants instead of pressing for a decision on that issue, participated in the
examination of witnesses. Without raising any objection, the defendants cross-examined P.Ws. 1 to
3 and also examined D.2 and D.3 as D.Ws. 1 and 2. Therefore, the defendants, though raised the
plea of want of jurisdiction did not want to try that issue as preliminary issue. Hence, at this stage,
preliminary issue alone cannot be decided; the other issues also have to be decided.
13. In so far as this Court is concerned, the Original Side Rules of the High Court are applicable; only
where the Original Side Rules are silent, the provisions in the Civil Procedure Code are to be
resorted to. Where there are specific provisions in the Original Side Rules of this Court, the
provisions of CPC cannot be pressed into service.
14. The counsel for the defendants contended that this Court has no jurisdiction to decide this case.
The counsel relied upon the admission by P.W. 1 in the Court that there was no injury caused to her
in Chennai and that she has filed the suit in this Court only because she and her husband lives in
Chennai and Dr. S. Varadharajan who had treated her is also at Chennai and to save them from
going to Jaipur, she has filed the suit in this Court. Referring this, the counsel submitted that the
alleged injury (leaving the abdominal pad inside the abdomen during the operation conducted in
Jaipur) was caused only in Jaipur; no injury was sustained by P.W. 1 at Chennai and that therefore,
the entire cause of action arose only in Jaipur; no part cause of action arose in Chennai as admitted
by P.W. 1 in the absence of any part of cause of action within the jurisdiction of this Court, the suit
as filed in this Court is not maintainable.
15. The counsel for the defendants contended that only the provisions of Section 19, CPC is
applicable to this suit and not Section 20, CPC. In support of his contention, he relied upon the
decision in Sreepathi Hosiery Mills v. Chitra Knitting Company, . where it was observed, "Whenever
a suit for compensation for wrong done to person or to movable property is filed, the option is with
the plaintiff to either institute the case based on such cause of action at the place where the
defendant resides or works for gain or at the place where the wrong was committed. There is no way
out of this limitation as to jurisdiction envisaged in Section 19, CPC. The argument is that the
plaintiff has examined a witness who has sworn to the fact that he heard about the alleged damage
done to the plaintiff. If this were to be the basis on which jurisdiction can be created or vested in a
Civil Court, then Section 19 would be otiose. When the Code, which more or less lays down the
substantive law, though procedural in aspect, regarding such matters of jurisdiction, creates certain
peripheries and limitations, particularly in the matter of the laying of suits in the forum of specified
Courts, then no option is left to the litigant except to strictly adhere to such prescriptions in the
section of the Code. Section 19 is a specific section. It says that where a suit for compensation for
wrong done to person is laid, it should be filed at the place where the wrong is done or at the place
where the author of the wrong resides or works for gain. There being no other choice available to the
litigant who wishes to seek such compensation, he cannot whittle down the express prescription in
Section 19 of the CPC, and lay emphasis on the oral evidence casually let in by him so as to create or
vest jurisdiction in the Court, which has none."
To this, the counsel for the plaintiffs replied that the plaintiffs had obtained leave to file this suit in
this Court; since this Court has granted leave to sue the defendants, this Court has got jurisdiction to
try this issue.
16. Of this Court, Section 12 of the Letters Patent confers original jurisdiction as to suits. In that
clause, with respect to all cases other than cases relating to immovable properties, this Court has
jurisdiction to try that case where the cause of action has not arisen wholly, but, a cause of action
has arisen in part within the local limits of the ordinary original jurisdiction of this Court, in case the
leave of the Court is first obtained. This Court can grant such leave under Order III, Rule 1 of the
Original Side Rules to file the suit in this Court. In the present case, such an application has been
filed and this Court has granted leave to file the suit against the defendants in this Court. Therefore,
this Court has jurisdiction to try this case, inasmuch as the leave has been granted.
17. When such leave (to sue) is granted, the summons to the defendants are to be served. Such
summons shall contain a notice set out in Form No. 9 which is as follows :
FORM NO. 9
"Order III, Rule 1, Notice of Grant of Leave to Sue in the High Court And also take notice that leave
to institute the said suit in this Court was granted by an order, dated the......... day of..............and
that you are at liberty to apply to this Court to stay the said proceedings.
Therefore, when summons are served on the defendants, the defendants are at liberty to apply to
this Court to stay such proceedings. That is when the leave to sue is granted by this Court and
notices are served on the defendants, the defendants can apply to stay permanently the proceedings
before this Court. When such a stay is granted, it will have the effect of cancellation df the leave
already granted to sue in this Court. The leave granted can be cancelled only by this procedure. If the
defendant does not apply to stay the proceedings, then this Court may proceed with the case and
decide all the issues in that case. But, no such application has been filed in this case; therefore, the
leave granted by this Court has not been cancelled; therefore, this Court can decide all the issues
before it.
18. That apart, the defendants have entered appearance and filed their written statements. Only in
that, they have raised the issue of jurisdiction of this Court. They have not filed any application for
stay of the leave to sue granted by this Court. Even though a specific plea has been raised with
respect to the jurisdiction of this Court, no evidence has been let in by the defendants. D.Ws. 1 and 2
have not objected to the jurisdiction of this Court when they were in the box. Thus, the defendants
have submitted to the jurisdiction of this Court. By reading Section 12 the Letters Patent together
with Order III, Rule 1, this Court gets jurisdiction to decide all the issues; therefore, the arguments
of the learned counsel for the defendants that this Court has no jurisdiction is not acceptable and
hence it is rejected.
19. Further, according to the pleadings in the plaint, the injury alleged has been caused to the second
plaintiff (the placing of the abdominal pad in her body while performing the operation in Jaipur)
was cured or rectified in the City Tower Hospital, Chennai. The termination of the defect or injury is
also continuation of the same cause of action and connected with the injury (for which the suit has
been filed claiming damages); it is a part cause of action. Therefore, part cause of action has arisen
in Chennai. Hence, this Court gets jurisdiction also on the basis that part cause of action has arisen
within the jurisdiction of this Court. The Issue No. 1 is answered in favour of the plaintiffs.
20. Issue No. 2 ; From the evidence available, it is seen that the second plaintiff was admitted in first
defendant hospital for removal of overian cyst; but in that operation, her uterus had been removed.
10
Admittedly, the consent of the second plaintiff was not obtained. According to the defendants,
instead, the consent of the first plaintiff was obtained during the operation for removing the uterus
of the second plaintiff. P.W. 1 also has stated that she did not give her consent for removal of her
uterus. P.W. 2 has stated that during the operation when his wife was anaesthetized and was not
conscious, second defendant came out from the operation theatre and said that a crisis had emerged
necessitating the removal of the uterus of P.W. 1 forthwith; he was upset and refused to give his
consent without his wife's concurrence; but, the second defendant had removed the uterus. In the
cross-examination, he had admitted that he signed the second page of Ex. D. 1; in that, he has
stated, "I voluntarily signed Ex. D. 1 letter...... I have trusted the hospital and doctors."
Also, in the plaint in paragraph 9, it is stated that the matter was left to the decision and discretion
of the second defendant; at no point of time, the plaintiffs questioned the decision and discretion of
the second defendant, in writing.
Ex. D. 1 reads, inter alia as follows :
"Authorisation For Treatment, Finances Etc.
I, the undersigned, a patient of Soni, Hospital hereby authorise Dr./Drs. ............. (and whomsover
are designated as specialists/assistants) to administer any such treatment and its related diagnostic
examinations and investigations and also to perform any such operation or such additional
operations/procedures which are considered as therapeutically necessary in the course of above
treatment. I also consent to the administration of any kind of anaesthesia and procedure thereof
necessary. I have also understood and have been explained the reasons, advantages and
complications of the above treatment and that no guarantee has been made to the outcome
obtained."
................................................................."
Beneath that, P.W. 2 has signed. The counsel for the plaintiffs submitted that this was not signed by
the second plaintiff, but only the first plaintiff had signed; therefore, this is not the consent of the
second plaintiff. Therefore, the uterus had been removed without the consent of the second plaintiff
and therefore, the defendants are liable to pay compensation for the loss sustained by the second
plaintiff. The learned counsel for the defendants contended that the second plaintiff admittedly left
the matter to the discretion of the second defendant doctor and hence, no compensation is payable
for removing the uterus without obtaining consent.
21. In the plaint itself, it is stated that the plaintiffs had left the matter to the "decision and
discretion" of the second defendant (in para 9 of the plaint). D.W. 1 in her evidence has stated that,
during the operation, she found there was a cyst which was twisted twice on its pedicle; she removed
it which was on the right side and then, she found that tube and ovaries were making a mass which
were very badly inflamed and was attached to the posterior side of the uterus; if she had not
operated it, that would have led to septicenia; after that, she found that the uterus was enlarged and
contained multiple fibroids; had she left the uterus, it would have led to any kind of degeneration
11
more severely sacromatus that is cancer which would have endangered the patient's life; as a senior
doctor, it was her duty and hence, she called the person who had given consent and explained to him
these matters and told him that since the overies had been removed, his wife could never beget any
children in future and that if the uterus with multiple fibroids had been left, that would have led to
third operation, because of sarcomatous in danger; nothing extra was charged for this extended
operation. In the cross-examination, D.W. 1 had stated that the removal of uterus was not
contemplated prior to the surgery; but only during surgery, it was so decided. From this evidence, it
appears that D.W. 1 did her duties in good faith as a dutiful surgeon. According to D.W. 1, if she had
not removed the uterus, it would have necessitated another operation on P.W. 1 in future. The
counsel for the defendants submitted rightly so, that when a surgeon find? it necessary during
operatiqn to do certain things which had not been anticipated earlier, even in the absence of the
consent by the parties concerned, the doctor is bound to do whatever necessary in that matter. In
support of that argument, the counsel relies upon a judgment of the Kerala High Court in T.T.
Thomas v. Elisa, where the Court has held as follows :
"Consent is implicit in the case of a patient who submits to the doctor and, the absence of consent
must be made out by person alleging it. A surgeon, who failed to perform emergency operation must
prove with satisfactory evidence that the patient refused to undergo the operation not, only at the
initial stage, but even after the patient was informed about the dangerous consequences of not
undergoing the operation."
This view expressed by the Kerala High Court is acceptable.
22. When the doctor opines, in good faith, that emergency steps need to be taken in the interest of
the patient, but fails to take such steps, he would be failing in his duty; and such failure would be a
wrongful omission. Therefore, unless the patient proves that there was no such emergency or that
those acts were not done bona fide, the doctor or surgeon cannot be found fault with.
23. As stated above, D.W.1 has stated before this Court that the emergency situation that had arisen
necessitated to remove the uterus and she could not get the consent of the patient who was
anaesthetized and hence got the consent of the husband who was there in the hospital. This is the
maximum possible effort that could have been taken by the doctor at that point of time; D.W. 1 is
categorical in her evidence that had she left the uterus as such, it would have resulted in cancerous
growth which would have endangered her life. This has not been controverted or denied by P.W. 1
when she was examined in Court. Therefore, this Court can come to the only possible conclusion
from the evidence on record that D.2 has acted in good faith in the emergency and has taken all the
steps possible for her at that time. This evidence has not been challenged at all; there is hot even a
suggestion that there was no such emergent situation which necessitated the removal of uterus and
that the removal was not bona fide. In the absence of any such challenge to the evidence of D.W. 1, it
proves that there was an emergency which necessitated the removal of uterus of P.W. 1. The fact that
no extra charges were levied for the extra operation proves, prima facie, that D.W. 1 performed the
operation in good faith and there was no mala fide intention. The doctors (D.2 and D.3) gained
nothing by removing the uterus when they have not even charged extra for that operation. On the
other hand, in such emergent situation, if the doctor failed to perform his or her duty, it would be a
12
wrongful omission that will give rise to a cause of action against the doctor for not performing his
duty as a surgeon or a professional. That would give rise to an actionable claim for the plaintiffs to
proceed against the defendants.
24. The counsel for the defendants referred to a few decisions of State Commissions of Andhra
Pradesh and Karnataka established under the Consumer Protection Act and wanted to rely on those
decisions as a precedent or a judgment which has a persuasive value. But those decisions cannot be
relied or referred before this Court or before any subordinate Court as precedents. The "orders"
passed by the District Consumer Redressal Forum or State Commission or National (Commission)
functioning under the Consumer Protection Act are not binding precedents. These commissions are
not Courts. All the persons presiding over these commissions are not Judges. A retired Judge of the
High Court is one of the three members in the State Commission. In the case of National
Commission, a former Judge of the Supreme Court is one of the five members of the Commission;
the other members are not legally trained persons, the "decisions" are not judgments, but only,
"orders." Under Article 141 of the Constitution of India, the judgments rendered by the Supreme
Court are binding on all. Further, the judgment of the High Courts are binding precedents on the
Court over which the High Court exercises supervisory and revisional powers, under Article 227 of
the Constitution of India. On other Courts, it has a persuasive value. Only the ratio decidendi in the
deqisions of the Higher Courts, viz., the Supreme Court and the High Courts are binding precedents.
Therefore, the decisions of the Consumer Dispute Redressal Fora including the State Commission
and the National Commission are not binding precedents on the Courts. The Consumer Redressal
Fora only pass orders redressing or granting relief to the consumers. They are not higher Courts like
the High Court or the Supreme Court. Therefore, the decisions of the State Commission or National
Commission constituted under the Consumer Protection Act are not judgments laying down a ratio
decidendi. Therefore, those decisions are not referred.
25. Taking the totality of evidence, adduced in this case, it appears that D.W. 1 was not negligent
when she removed the uterus of the second plaintiff. In the circumstances, as evidenced in the this
case, the removal of uterus without getting the consent of the second plaintiff does not give rise to
any actionable claim. P.W. 1 was incapable of giving consent as she was anaesthetized when the
emergency arose; therefore, the only alternative for D.W. 1 was to get the consent from her husband
(P.W. 2) which was obtained by the defendants. That apart, by virtue of Ex. D.1, the doctors D-2 and
D-3 had the right as well as the duty to perform any such additional operation which were
considered as therapeutically necessary in the course of the treatment. D.W. 1 has proved that such a
necessity arose during the operation and that she only did her duty. This was not disproved by the
plaintiffs by adducing to the contrary evidence. Therefore, there is no actionable claim on the
ground that the uterus of the second plaintiff was removed without her consent. Therefore, for the
removal of uterus of P.W. 1, the defendants are not liable to pay any amount as damages. Hence
Issue No. 2 is answered against the plaintiffs.
26. Issue Nos. 3 and 4 : The case of the plaintiffs is that during the operation, an abdominal pad was
left in the body of the second plaintiff negligently by the defendants. In the plaint in paragraph 19, it
is stated.
13
"The x-rays and scans taken did not reveal anything, since the foreign material in the body of Mrs.
Meena was then covered with intestine and pus. The barium test x-ray revealed enlargement of
intestine of Mrs. Meena. Abscess cavity surrounded by the attachments of intestine was found."
....................................................
"........ .a surgery was performed on 11-9-1990 by Dr. S. Varadarajan on the second plaintiff when it
was discovered that an abdominal pad measuring 12 inches x 12 inches was lying inside her body in
the junction of small and large intestines. The pad was removed. It was found to contain a label
reading, "SONI HOSPITAL."
In paragraph 21, it is stated that, "Thus it is now clear that the defendants 2 and 3 have been grossly
negligent in operating on Mrs. Meena Balakrishnan failed to take the necessary care expected of any
surgeon or Assistant Surgeon in performance of such operation and closed the abdomen of the
patient, opened by them for surgery, even without verifying whether any foreign body still remained
inside the body of the patient. The magnitude of negligence is manifest from the measurements of
the 'pad' later removed by Dr. S. Varadarajan from inside the abdomen of Mrs. Meena
Balakrishnan."
Dr. Varadarajan who performed the operation on the second plaintiff has been examined as P.W. 3.
He has stated as follows :
"There was a mass lesion in the terminal ileum. As I was trying to remove the mass, I found an
abdominal pad there. I removed the pad along with the intestine. The size of the pad removed was
10 inches by 10 inches. I reported this to the patient's relatives. The pad removed by me had on it
inscribed the following words, Soni Hospital. I also took photograph of the pad removed. I reported
the matter to her husband/the plaintiff herein and her brother."
In the cross-examination, he has stated "the foreign body was inside the small intestine."
"I had handed over the removed intestine part with the foreign body inside to the theatre assistant.
Only thereafter, I opened it and found the foreign body inside. Immediately after removal, the
removed portion of the intestine continued to be kept inside the theatre. The foreign body had the
shape of the intestine as it was inside there it was in a rolled shape."
From this evidence, it is seen that P.W. 3 had cut a portion of the intestine and subsequently when
the removed intestine part was "opened," he found the foreign body inside the intestine. That is, the
foreign body was found "inside the intestine." Further, P.W. 3 the doctor was categorical that the
foreign body was found at the end of the small intestine at ileum.
27. P.W. 3 in his evidence has stated that the pad was found rolled "inside" the intestine. Also P.W. 3
has stated that he had taken a photograph of the pad removed from the intestine of the second
plaintiff. But, the photograph and the pad which had the inscription "Soni Hospital" cannot be taken
as evidence without the negative being produced; hence, it is inadmissible in evidence. The Privy
14
Council in the case of United States Shipping Board v. Ship St. Abbans, AIR 1931 PC 189 has held
that photograph by itself is not proof of dimensions and relative proportions of the object depicted.
The counsel for defendants also relied upon a decision of Gujarat High Court reported in 1991 Cri LJ
978 that photograph is inadmissible when the person who took the photograph was not examined
and when the negatives are not produced. This Court has also held so in a number of cases. Hence,
the photograph of the abdominal pad with inscription of Soni Hospital does not help the plaintiffs,
as the photographs inadmissible in evidence without the negatives.
28. The evidence of P.W. 3 before this Court is that he found an abdominal pad inside the small
intestine. In the cross-examination he has further stated, that, "A foreign body can get into intestine
without being swallowed in."
This evidence of P.W. 3 that an abdominal pad was found inside the intestine and a foreign body can
get into the intestine without its being swallowed has not been denied at all by the defendants. It
was not even suggested to P.W. 3 that what he has stated was not true. Further, there is no contrary
evidence through D.W. 1 or D.W. 2 to the effect that a foreign body cannot enter into the intestine
otherwise than its being swallowed.
29. It is true that P.W. 3 has further stated, It is possible for any foreign object inserted as suggested
in Ex. P. 13 getting itself deposited in a cavity and reaching the intestine and staying there, on
account of the negligence of the patient concerned."
(In Ex. P. 13, the relevant; procedure is as follows :
"(3) Take Mahathikthaka Gritham and Honey in equal parts. Mix it well. Taken clean piece of cloth.
Roll it into the size of a thumb. Soak this in the mixture of Mahakallyanaka Gritham and Honey and
insert it into the vagina. Keep overnight and remove it on next day morning. Then wash private
parts with luke warm water.") But, earlier he has stated that, "If as directed in Ex. P. 13, the patient
had followed the instructions, there was no likelihood of any piece of cloth rolled into a piece of
stump go in or occupy in any cavity created on account of the removal of the uterus, as after the
removal of the uterus, the stump will be closed."
In the light of this earlier assertion, it appears the subsequent answer is a slip of the tongue or a
typographical mistake; the evidence of P.W. 3 stated earlier appears to be correct. Therefore, this
Court is of the view that by following the procedure advised in Ex. P. 13, there was no likelihood of
any foreign body entering the intestine.
30. The research article by Alper Cyhan of the Gazi University, Ankara, Turkey, Faculty of Medicine,
Departments of General Surgery and Gastroenterology, published in Gazi Medical Journal (8 :
122-125, 1997), titled "Surgical Gauze Pseudotumor Eroding into the Intestine" throws sufficient
light on this aspect. The author has stated as follows :
"Surgical gauze is made of cotton, which is rather inert and does not stimulate any specific
biochemical reactions. Pathologically, two types of foreign body reactions can be induced. One is an
15
aseptic fibrious response that creates adhesions and encapsulation, resulting in a foreign body
granuloma. This occurrence usually follows a rather silent clinical course. The other response is an
exudative type that leads to abscess formation with or without secondary bacterial infection (13).
The development of an abscess represents the body's attempt the extrude the foreign material either
externally or internally into a hollow viscus (3). The most unusual sequela is the erosion of the
sponge into the intestine (1, 4). The retained sponge may lie entirely or partially within the bowel
lumen, or it may eventually pass per rectum. Elimination of the sponge may occur as early as two
weeks following laparotomy or it may be delayed as long as several years (6, 1,0). The retained
sponge evokes an inflammatory reaction and is surrounded by omentum intestinal mesentery,
and/or nearby organs. Sooner or later, the foreign body exerts pressure and forces an opening into a
hollow organ, and a fold of sponge then penetrates into the lumen of the bowel. Peristaltic activity of
the bowel helps propulsion of the foreign body (4, 10). In some cases, there is spontaneous
expulsion of the foreign body to the exterior, but in most cases, operative interventions required to
remove the offending item (11). Unusual pathways of extrusion include the abdominal wall or
umbilicus (3). If a patient develops an unusual pain or strange abdominal symptoms soon after
laparotomy, a retained foreign body should be considered. The patient reported in this paper
developed persistent abdominal pain and recurrent incisional hernias following cholecystectomy.
Neither an intra-abdominal abscess nor a chronic fistula had appeared soon after this initial
operation. Instead, the retained sponge had partially migrated into the bowel lumen and formed a
pseudotumor. We cannot contradict that the sponge might completely pass into the bowel lumen
and eventually per rectum if we had left it behind and if the patient was lucky enough. The more
probable course would possibly be persistent abdominal pain and partial or complete obstruction
that could provoke another herniation.
.........................................................
The surgical sponge retained in our patient lacked a radiopaque marker; thus, the diagnosis was not
possible with plain radiography."
It has been summarised as follows :
"Surgical sponges, instruments, and drains left in abdomen following surgery may be responsible for
bizarre and varied complications. The patient may remain asymptomatic for months or even years:
Among the complications reported following retention of laparotomy pads and surgical sponges are
obstruction, peritonitis, adhesions, fistulas, abscess formation, erosion into gastrointestinal tract, or
extrusion of the laparotomy pad via the rectum. Transmural migration of the retained sponge is a
rare phenomenon. A laparotomy sponge may extrude into the bowel lumen and migrate along the
intestinal tract, or it may partially penetrate the bowel wall."
31. From the above article, it is seen that a surgical gauze left in the abdominal cavity can make its
entry into the small intestine. Therefore, the evidence of P.W. 3 that a foreign body can enter into
the small intestine without its being swallowed in, appears acceptable. In this case, because the
foreign body was found inside the small intestine, it cannot be said that the foreign body should
have entered only orally. It is possible that a surgical sponge left in the abdominal cavity during an
16
operation could have entered into the small intestine.

32. The evidence of P.Ws. 1 and 2 proves that P.W. 1 was last operated in D. 1's hospital at Jaipur.
P.W. 1 has stated that she developed severe stomach ache immediately alter the surgery and the
doctors when examined her, could not diagnose the cause and the barium study revealed mass
lesion in the ileum to P.W. 3. Reading the evidence of P.Ws. 1, 2 and 3 together with that of D.Ws. 1
and 2, it can be safely concluded that an abdominal pad was negligently left inside the body of the
second plaintiff during the operation in D. 1 hospital at Jaipur by D.2 and D.3. Therefore, the case of
the plaintiffs that an abdominal pad was left in the body during the operation is conclusively proved.
It is true that there is no reference in Ex. P.6 with regard to either the size of the pad or the identity
of the hospital in the pad but that does not affect the case of the plaintiffs. Therefore, that the
defendants 2 and 3 who performed the operation in Jaipur were negligent in performing the
operation in not removing the abdominal pad from the abdomen before closing the abdomen at the
end of the operation is proved. Therefore, the issue Nos. 3 and 4 are answered in favour of the
plaintiffs.
33. Issue Nos. 5 and 6 : The plaintiffs have claimed Rs. 5 lakhs for loss of happy conjugal life and the
mental suffering and deprivation of further procreation due to removal of uterus of the second
plaintiff without her consent. He has claimed Rs. 15 lakhs for loss of business income; further, he
has claimed Rs. 42,917/-, the expenditure for undergoing the operation at the first defendant
hospital as well as the school fees paid for the children for readmission and the expenses they
incurred to come to Madras and the expenditure incurred in the hospitals at Chennai; in all, they
claimed Rs. 20,67,793/-, but restricted to a sum of Rs. 15,00,000/-. The counsel for the defendant
submitted that first of all, even assuming a loss has been incurred by the plaintiffs, in their business,
it is not a direct consequence of the operation performed in Jaipur; it is a remote consequence.
Under that circumstances, the plaintiffs are not entitled to any compensation. Further, the counsel
pointed out that when P.Ws. 1 and 2 were in the box, they have given the address both in the
affidavit of evidence and to the Court during the examination, they have stated that they reside in
Jaipur. Therefore, it is proved that P.Ws. 1 and 2 are residing only at Jaipur. There is no evidence as
to how long they were staying in Madras which resulted in their inability to concentrate in the
business at Jaipur. Therefore, the plaintiffs have failed to prove that they sustained a loss of Rs.
15,00,000/- in the business. This argument of the counsel for the defendants has force. P.Ws. 1 and
2 have stated that they are residing in Jaipur in the address given therein when they were examined
in the Court. Therefore, it is proved that the plaintiffs were residing in Jaipur. As rightly pointed out
by the counsel for the defendants, there is absolutely no evidence on the side of the plaintiffs to the
effect that up to which date, they were residing in Chennai after the operation. Even assuming that
the plaintiffs sustained loss in the business at Jaipur, there is no evidence to show that they were
residing in Chennai during that period. Further, by no stretch of imagination, the loss of business
can be said to be a direct consequence of negligence on the part of the defendants 2 and 3.
Therefore, the plaintiffs are not entitled for any damages for the loss in their business in Jaipur.
Hence, the plaintiffs are not entitled to this claim.
34. In the annexure to the plaint, they have given details for Rs. 42,917/- under the head, medical,
hospital and other incidental expenses. Exs. P. 1 to P. 14 are the bills relating to medical
17
expenditure. In the annexure, the details of the expenditure of Rs. 42,917/- has been given. This
includes air ticket to Chennai, train ticket, petrol expenditure, taxi and bus, hotel and lodging
expenditure, etc. Apart from that, it also includes loss in children's school fees and for re-admission.
All these amounts cannot be said to be amounts spent for medical expenses. Therefore, these
amounts are to be deducted. After deducting such of those amounts, it comes to Rs. 24,979/- This
can be rounded off to Rs. 25,000/-. Apart from that, the other expenditure including travel and
lodging at Chennai may be reasonably fixed at Rs. 10,000/-. In all, they are entitled to Rs. 35,000/towards medical expenditure both in Jaipur and in Chennai.
35. In the plaint prayer, the plaintiffs pray for a decree directing the defendants 1 to 3 directing the
defendants jointly and severally to pay to the plaintiffs Rs. 15 lakhs towards compensation and
damages of the defendants in negligently performing the surgery on the second plaintiff. Though in
the annexure, the plaintiffs have given break up figures as stated already, the main prayer does not
restrict it only to those heads. Therefore, this Court can grant any amount as compensation not
exceeding the amount claimed in the plaint, though not under the very same head they claimed but
under other heads which they have omitted to claim. The only, restriction is that the total
compensation shall not exceed the total amount claimed in the suit.
36. In view of the finding to Issue No. 2 that the action of the defendants in removing the uterus
without the consent of the second plaintiff does not give rise to an actionable claim, the defendants
are not liable to pay any amount as compensation for removal of the uterus without the consent. At
the same time, in view of the finding to Issue Nos. 3 and 4, that the defendants were negligent in
performing the operation, the defendants are bound to pay compensation for the pain and suffering
as well as for the mental agony caused to the second plaintiff. This Court estimates the
compensation for pain and suffering at Rs. 2,00,000/- and for the mental agony at Rs. 1,00,000/-.
The defendants- 1 to 3 are liable to pay Rs. 3,00,000/- in all, as compensation. Defendant 3 cannot
escape the liability that she was only assisting the operation. She is also equally responsible for the
negligence during the operation. The second defendant, the main surgeon who conducted the
operation is also responsible for the negligence. The first defendant is the hospital to which the
second plaintiff went for treatment. First defendant who admitted the plaintiffs and referred to D.2
and D.3, is also liable to pay the compensation. Therefore, the defendants 1 to 3 are jointly and
severally liable to pay the compensation of Rs. 3,35,000/- to the second plaintiff.
37. Issue No. 6 : Therefore, the amount of compensation, viz., Rs. 3,35,000/- together with interest
at the rate of 6 per cent, per annum is to be paid by the defendants from the date of plaint till the
date of payment.
38. Issue No. 7 : In the result, the suit is decreed in part with proportionate costs.
18

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Arun Balakrishnan Iyer And Anr. vs Soni Hospital And Ors.

Madras High Court

Indian Kanoon - http://indiankanoon.org/doc/185835/

4. On these pleadings, the following issues were framed :

(7) To what other reliefs the plaintiffs are entitled?

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operation could have entered into the small intestine.

Indian Kanoon - http://indiankanoon.org/doc/185835/

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