Gujarat High Court
Mahendrakumar Punjalal Chawda vs Sarojben Madhusudanbhai Shah (Died ... on 14 October, 2025
NEUTRAL CITATION
C/FA/3429/2007 JUDGMENT DATED: 14/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3429 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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MAHENDRAKUMAR PUNJALAL CHAWDA & ANR.
Versus
SAROJBEN MADHUSUDANBHAI SHAH (DIED DURING PENDENCY) &
ORS.
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Appearance:
MR SANDIP C SHAH(792) for the Appellant(s) No. 1,2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 8
MS. KRUTI M SHAH(2428) for the Defendant(s) No. 4,5,6,7
N R MEHTA(7794) for the Defendant(s) No. 4,5,6,7
RULE SERVED for the Defendant(s) No. 3
SERVED BY AFFIX. (R) for the Defendant(s) No. 2.1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 14/10/2025
ORAL JUDGMENT
1. The present Appeal is filed by the appellants - original plaintiffs under Section 96 of the Civil Procedure Code, 1908 against the judgment and decree dated 14.02.2007 passed by the learned Presiding Officer, Fast Track Court No.2, City Civil Court, Ahmedabad (hereinafter be referred to as "the trial Court") in Civil Suit No.1689 of 1990, whereby the learned Judge has partly allowed the suit filed by the appellants herein and awarded a sum of Rs.2,00,744/- with 6% interest and costs against the respondent Nos.2 to 8 - original defendant Nos.2 to 8 jointly and severally liable to pay from the date of filing of the suit till realization.
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2. Brief facts of the case in nut-shell are as under :
2.1 That, on 24/5/1988 the appellant No.1 and his wife Ramilaben visited Kantilal Manilal Hospital for gynec problem and approached the respondent No.3 Dr. Truptiben Vinaychandra Jain (RMO) who prepared the necessary medical case paper after inquiring about the complaints of deceased Ramilaben and then directed Ramilaben to meet Dr. Sarojben (respondent No.1). Thereafter, Dr. Sarojben clinically examined Ramilaben and informed her that she was pregnant since about six weeks. As Ramilaben was doing service and was already having a female child of 5 months old, she expressed her desire not to have further child and therefore, Dr. Sarojben advised to undergo a small operation of curettage, which was very simple in nature and harmless operation which hardly takes 10 to 15 minutes to complete. That, relying upon the representation of Dr. Sarojben, Ramilaben and her husband agreed for the suggested operation.
Therefore, as per the advise and instructions of Dr. Sarojben and staff persons, the deceased Ramilaben reported at K.M.Hospital on 4/6/1988 at about 8.00 a.m. alongwith her husband and accordingly, after undergoing preoperative, preliminary examination; at about 9.40 a.m., the respondent No.3 and other staff members took Ramilaben into the operation theatre, where the respondent Nos. 1 to 3, one Nurse and attendant were present. That, after about 15 minutes thereafter, the patient was brought out from operation theatre on a stretcher in unconscious condition and on being asked by the appellant no.1, the respondent No.1 Dr. Sarojben informed that the operation was over, however due to aftereffect of anesthesia, the patient was unconscious and would come to senses within a short time as soon as the effect of anesthesia would be over and then they Page 2 of 9 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 00:11:39 IST 2025 NEUTRAL CITATION C/FA/3429/2007 JUDGMENT DATED: 14/10/2025 undefined left the premises. That, the patient Ramilaben was removed from stretcher and moved to bed in the adjoining room of OT, where the appellant No.1 was sitting besides the patient's bed and was waiting for the patient to come to senses. As all the medical staff was inside the OT, there was none to look after the patient in that room. That, after about half an hour, one junior Doctor came to see the patient and on examining her, he found that the patient was cold and hence, was terribly confused and upset and thereafter, respondent Nos. 1 to 3 rushed to the patient's bed and after examining her, the respondent No.2 administered some injections to Ramilaben, however, Dr. Sarojben after examining the patients, pronounced her death. Thus, owing to negligence of the operative procedure (including administration of anesthesia) Ramilaben lost her life at a prime youth; even though she was hale and hearty and was physically fit while entering OT on her feet and therefore, the appellant No.1 filed criminal complaint against all the attending Doctors of K.M.Hospital on the same day. Thereupon, the Police Authority investigated into the police complaint and obtained Reports of Forensic Laboratory and Pathology Department of New Civil Hospital, Ahmedabad and the final opinion of the investigation and examination of the Forensic Medicines Department was communicated to the Police Authority by their letter dated 6/4/1989 and it was written in the said letter that the death was due to "Cardio respiratory failure, which appears to be due to combining effect of anesthetic drug used and detected in the Blood and viscera and the pathology-pyogenic pericarditis and intra- arterial hemorrhages with pulmonary edema." Thus, on account of death of deceased Ramilaben, a sum of Rs. 3,50,000/- with 12% interest as damages was claimed by the appellants by way of preferring Civil Suit No.1689 of 1990.
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denying all the averments made in the plaint and thereafter, after considering the pleadings of both the sides, the trial Court had framed the issues at Exh.-52 referred in para-17, which are as under :
(1) Whether the plaintiffs prove that the defendants advised that the curretage Operation was very simple and harmless without any pain and injury to the decease Ramilaben?
(2) Whether the plaintiffs prove that the curretage operation was performed by the defendants and because of grave negligence on the part of the defendants and their staff member and treatment, deceased Ramilaben expired?
(3) Whether the plaintiffs prove that they are entitled to claim Rs.3,50,000/- as stated in the plaint ?
(4) Whether the defendants prove that before performing operation of Ramilaben, necessary precautions were all the taken and necessary investigation was carried out ?
(5) How many defendants are responsible and to what extent?
(6) What order ?
2.3 That, the trial Court had answered the issues in para-18 and after considering the documentary as well as the oral evidence referred in paras-10 and 14 led by both the sides and after considering the facts of the case, the trial Court has partly allowed the suit and awarded a sum of Rs.2,00,744/- with 6% interest and costs against the respondent Nos.2 to 8 - original defendant Nos.2 to 8 jointly and severally liable to pay from the date of filing of the suit till realization vide its judgment and decree dated 14.02.2007.
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3. Being aggrieved and dissatisfied with the aforesaid judgment and decree dated 14.02.2007, the appellants have preferred the present appeal.
4. Heard Mr. Sandip C. Shah, learned counsel appearing for the appellants, Ms. Kruti M. Shah, learned counsel appearing for the respondent Nos.4, 5, 6 and 7 and Mr. Palak Thakkar, learned counsel appearing for the respondent No.8.
Respondent Nos.1 to 3, though served, have chosen not to remain present before the Court.
5. Learned counsel Mr. Sandip Shah has submitted that the amount awarded by the trial Court is very meager and inadequate and thus, the trial Court has committed an error by not awarding an amount as prayed for by the appellants. He has submitted that the trial Court has not even considered the ratio laid down by the Hon'ble Apex Court and therefore, under such circumstances, the trial Court has committed a serious error of la and on facts both while awarding inadequate and insufficient amount. He has submitted that decree passed by the trial Court, in so far as quantum of damages Is concerned, is contrary to law, against the provisions of statute and against principles of awarding just and proper compensation. He has submitted that the trial Court has erred in not considering the age of the deceased and income of deceased at the time of her death on 4/6/1988 and erred in passing the decree of only Rs.2, 00,744/-, which is on lower side. He has submitted that the trial Court has erred in not considering the written arguments submitted by the appellants while passing the decree in so far as quantum is concerned. He has submitted that the deceased Ramilaben was born on 3/11/1964, Page 5 of 9 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 00:11:39 IST 2025 NEUTRAL CITATION C/FA/3429/2007 JUDGMENT DATED: 14/10/2025 undefined hence, she was aged 25 years at the time of her death on 4/6/1988 and was having excellent qualifications, which were duly proved on record, vide documents at Exh.73 to 78 and she was serving as Teacher in Government Primary School of Kadi Taluka and was getting salary of Rs. 1531/-pm, which was proved, on record. He has submitted that as a government servant, the deceased was also entitled to get future increase in pay revision and as per Gujarat Civil Services (Revision of Pay) Rules 1998, the salary was increased to about Rs.7740/-pm which was proved on record by evidence of Jayantibhai K Patel at Exh. 129 and hence, if she had survived and not died, then she would have received the said income in future. He has submitted that the trial Court has not properly appreciated the actual income of deceased at the time of her death and future prospective income in very near future as per Revision of Pay Rules while computing damages and erred in considering income at only Rs.1329/-pm which is less than even actual income, and erred in passing award which is on lower side. He has submitted that the trial Court has failed to appreciate various decisions cited at the bar namely (2006) 2 GLR 1514, (2002)1 ACJ 638, 1996 ACJ page 16. (2003) 3GLR page 2386 etc., while awarding compensation. He has submitted that it is evident from the record that the deceased was having minor child/plaintiff no.2 only 5 moths old and minor has lost love and affection of mother for rest of her life which cannot be compensated in terms of money. He has submitted that the appellant No.1 was required to engage maid servant to take care of child aged 5 months old only after death of deceased and incurred expenses of about Rs.400/-pm, however, services rendered by maid servant can never be compared with that of mother to her child. He has submitted that though the appellant No.1 remarried to take care of minor child, Page 6 of 9 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 00:11:39 IST 2025 NEUTRAL CITATION C/FA/3429/2007 JUDGMENT DATED: 14/10/2025 undefined in 1990, second wife cannot be a substitute of deceased for both. He has submitted that the appellants have not only lost love and affection for rest of life but, also lost dependency benefits since the deceased was a government servant and earning member in the family and the second wife was not an earning member in the family.
5.1 Learned counsel Mr. Shah has submitted that considering actual income of Rs.1500/-pm and future increase of Rs.7700/-pm as per revised pay scale and taking mean figure of said two, if we consider Rs.1500/- + Rs.7700/- = Rs.9200/- ½ = Rs.4600/- and if we consider 1/3rd income for personal expenses on deceased herself, in that case also, dependency loss will be Rs.4600/- less Rs.1500/- = Rs.3100/- pm say Rs.3000/- pm can easily be considered for computing damages. He has submitted that considering the age of 25yrs maximum multiplier of 18yrs ought to have been adopted by the trial Court, hence, if we consider average income of Rs.3000/-pm x 12 = Rs.36000/- p.a. x 18yrs = 6,48,000/- is awardable for loss of dependency benefit. He has submitted that considering fall in value of rupee the appellants are entitled to Rs.50,000/- for loss to estate of deceased and loss of expectation of life, as per decision of the Hon'ble Apex Court reported in Lata Wadhwa's case. 2001 ACJ page 1735 and also 2005 ACJ page 216. He has submitted that the trial Court ought to have awarded actual expenses incurred by appellant No.1 to take care of appellant No.2 by engaging maid servant, which was proved on record and ought to have awarded Rs. 10,000/- for the same. He has submitted that the trial Court also erred in not awarding amount for loss of consortium and loss of company of wife to appellant No.1. He has submitted that the appellants' advocate had submitted written arguments giving calculation of amount awardable to the tune of Page 7 of 9 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 00:11:39 IST 2025 NEUTRAL CITATION C/FA/3429/2007 JUDGMENT DATED: 14/10/2025 undefined Rs.6,06,000/-, and the claim in suit was restricted to only Rs.3, 50,000/-, hence, the trial Court ought to have passed full decree in favour of the appellants. He has submitted that the interest awarded at the rate of 6% is also on lower side and the trial Court ought to have considered fall in value of rupee, current economic conditions and also prevailing bank interest rates while awarding the same.
5.2 Learned counsel Mr. Shah has referred and relied upon the decision of the Hon'ble Apex Court rendered in case of Arun Kumar Manglik vs. Chirayu Health and Medical Private Ltd., reported in [2019] 7 SCC 401, more particularly the observations made in paras-52 to 54, and submitted that while awarding damages, the trial Court ought to have referred and relied upon the ratio laid down in case of National Insurance Company Ltd. vs. Pranay Sethi, reported in [2017] 13 SCALE 12 and urged that the present appeal be allowed and the impugned judgment and decree passed by the trial Court be appropriately modified.
6. As against that, learned counsel Mr. Palak Thakkar, appearing for the respondent No.8 Insurance Company, is unable to controvert the contentions raised by the learned counsel Mr. Shah for the appellants.
6.1 Learned counsel Ms. Kruti M. Shah, appearing for the respondent Nos.4 to 7, has supported the findings recorded by the trial Court and submitted that the amount awarded by the trial Court is just and proper and no interference is required to be called for in the present appeal and the present appeal be dismissed.
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7. I have heard the learned counsel appearing for the respective parties and perused the material placed on record. Considering the facts of the case and considering the submissions advanced by both the sides and also considering the ratio laid down by the Hon'ble Apex Court in case of Arun Kumar Manglik (Supra), more particularly the observations made in paras-52 to 54, I am of the opinion that the present appeal deserves to be allowed to the extent that the appellants are entitled to get Rs.1,49,256/- in addition to the amount awarded by the trial Court i.e. Rs.2,00,744/-.
8. In the result, the present appeal is hereby allowed. The appellants are entitled to get Rs.1,49,256/- in addition to the amount awarded by the trial Court. The additional amount is to be deposited before the trial Court concerned alongwith interest @ 6% p.a. from the date of filing suit till payment, within a period of eight weeks from the date of receipt of order of this Court. So far as the interest is concerned, the liability to pay the interest is cast upon the respondent Nos.2 to 8 and if the amount of interest is not deposited by the respondent Nos.2 to 8, it is open for the appellants to recover the same from the respondent Nos.2 to 8, by way of filing appropriate proceedings. Once the additional amount of Rs.1,49,256/- with interest is deposited, the same shall be disbursed in favour of the appellants, after following due procedure and after verifying their bank details through RTGS/NEFT. Record and proceedings, if received, shall be transmitted back to the concerned trial Court forthwith. No order as to costs.
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