Smt. Jeera Bai vs Smt. Vatsala Lal And Anr
2022 Latest Caselaw 4580 Chatt

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                                                                    NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                                                Reserved on 09-05-2022
                                             Pronounced on 19-07-2022
                           FA No. 53 of 2015
    Smt. Vatsala Lal Wd/o Late Alfretlal Baldu Aged About 65 Years R/o
     Village Joba, Police Station And Post Tumgaon, Civil And Revenue
     District Mahasamund C.G.
                                                             ---- Appellant
                                 Versus
   1. Smt. Jeerabai W/o Gulabdas Panika Aged About 34 Years R/o Village
      Joba, Police Station And Post Tumgaon, Civil And Revenue District
      Mahasamund C.G.
   2. District Chief Medical Officer District And Health Services, State Of
      Chhattisgarh, Mahasamund, Through Collector, Mahasamund,
      District Mahasamund C.G.
                                                        ---- Respondents

And FA No. 89 of 2015  Smt. Jeera Bai W/o Gulab Das Panika Aged About 36 Years R/o Village Joba, Police Station Tumgaon, Tahsil And District Mahasamund Chhattisgarh

---- Appellant Versus

1. Smt. Vatsala Lal W/o Late Alfet Lal Baldu Aged About 65 Years Anm Health Department, Joba, Tahsil And District Mahasamund Chhattisgarh

2. District Chief Medical Officer District And Health Services, Chhattisgarh Government, Mahasamund Chhattisgarh Through The Collector, Mahasamund Chhattisgarh

---- Respondents

Shri Manoj Paranjpe, Advocate : For Appellant in First Appeal No. 53 of 2015 and respondent No. 1 in First Appeal No. 89/2015 Shri V.K. Pandey, Advocate : For Appellant in First Appeal No. 89 of 2015 and respondent No. 1 in First Appeal No. 53/2015 For State : Shri Anil Tripathi, Panel Lawyer

Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. JUDGMENT

1) Since an identical issue is involved in both the cases, they are being heard analogously and are being disposed of by this common order.

2) Both the appeals have been filed against the judgment and decree passed by the learned 2nd Additional District Judge, Mahasamund (C.G.) passed in Civil Suit No. H-08B/2014 whereby the 2 nd Additional District Judge, Mahasamund has awarded compensation to the tune of Rs. 1,00,000/- for the alleged negligence committed by the defendant No. 1. First Appeal No. 53/2015 has been filed by defendant No. 1 for quashment of the impugned judgment and decree whereas First Appeal No. 89/2015 has been filed by plaintiff for enhancement of the compensation.

3) For convenience plaintiff and defendants are termed as it exists before the trial Court.

4) The plaintiff has filed civil suit before the learned trial Court contending that defendant No. 1 was working as Health Worker in the Government Hospital. On 21.07.2003, plaintiff's son was suffering from acute diarrhea, she took her to the Government Hospital where defendant No. 1 was posted. The plaintiff keeping her son on her lap was sitting for injection. But while administering injection defendant No.1 negligently inserted injection in the eye of the plaintiff, which has caused serious injury. Defendant No. 1 had given some primary treatment and since condition did not improve, the Doctor has advised the patient to go to Medical College, Raipur on 26.07.2003. Though the medical treatment was given at Government Hospital, Mekahara, Raipur after some treatment, the son of defendant No. 1 said that the doctor has suggested that treatment is possible at Government Hospital, Mahasamund. On the next day, when the plaintiff reached to defendant No. 1 for going to Government Hospital, Mahasamund, she did not take her to Mahasamund but dressed herself her eye and provided treatment for about 10-12 days, but there was no improvement. Due to negligence of defendant No. 1 plaintiff lost her vision in that eye. Due to the eye problem she could not be able to see which has prevented her to go for work as labour. The husband of plaintiff lodged FIR before the Police

Station, Tumgaon on 12.10.2003. On the above factual matrix the Plaintiff preferred suit for compensation to the tune of Rs. 3,00,000/- which was registered as Civil Suit No. H-08B/2014. Since, the plaintiff is below poverty line as such she was exempted from payment of Court fee.

5) The defendant No. 1 filed written statement denying the allegations made in the plaint mainly contending that due to falling of water she all of a sudden fell down which has caused abrasion in the eye and there was no serious injury in the eye. It has also been stated that defendant No. 1 has sent the plaintiff for treatment on her own expenses. The plaintiff was satisfied with the treatment given by the hospital. She was discharging her duties. There is no negligence on her part. It is further contended that she is working in the Health Department, Government of Chhattisgarh therefore for any act and omission the State is responsible and they have to pay the compensation. It is further contended that claim has been made for exaggerated amount. It is empathically denied that her loss of earning is adversely affected, in fact, her annual income is Rs. 1.50 Lakh, therefore, she is not entitled to get exemption from payment of court fee. Since the suit has been filed without affixing proper court fee the same is not maintainable and the same is liable to be dismissed.

6) The learned trial Court on the pleadings of the parties framed as many as 5 issues. Issue No. 1. A and B are vital for deciding the appeal, therefore, they are extracted below:-

1.A Whether negligence of defendant No. 1 injection was inserted in the left eye of the plaintiff on 21.07.2003?

1.B If yes, then whether the plaintiff is able to see by her left eye?

7) The plaintiff to substantiate her averment has examined herself as PW/1, Dr. Maneesha Srivastava as PW/2 and exhibited documents from Ex. P/1 to P/3 description of treatment, Ex.P/4 copy of FIR, Ex.P/5 medical examination, Ex.P/6 OPD ticket, Ex.P/7 medical report, Ex.P/8 to Ex.P/10 complaint to Collector, Mahasamund, whereas the defendants have neither examined anyone nor exhibited any document.

8) The plaintiff to substantiate her statement has examined herself by way of affidavit and was cross-examined by the defendants wherein she has

admitted that there is no joint account of property/land with her husband as her husband has three brothers. Due to financial problem, she could not go for expert treatment except Government College, Raipur. The witness was cross-examined by the Government Advocate where she has admitted that she has not arrayed Government as party to the case. The plaintiff has also examined Dr. Manisha Srivastava who was cross- examined by the defendant wherein she has admitted that the plaintiff has come for treatment after three months of the incident, if she has come earlier her eye could have been cured. The defendant No. 1 has not examined any witness substantiate her averments and closed her evidence on 11.12.2012.

9) Learned trial Court considering the evidence and material on record has partly allowed the suit and the directed the defendants to pay Rs. 1,00,000/- jointly and severally along with 6% interest from date of judgment and decree to till actual payment is made. Against that judgment and decree, the defendant preferred First Appeal No. 53/2015 before this Court for quashment of the impugned judgment and decree and First Appeal No. 89/2015 has been filed by plaintiff for enhancement of the compensation.

10)This Court has directed the Collector, Mahasamund on 09.12.2021 to submit his report with regard to financial status of the plaintiff for getting exemption from payment of court fee as per provisions of Section 35 of the Court Fees Act. Pursuant to the direction of this Court, the Collector, Mahasamund has submitted its report. Considering the report, this Court has exempted the plaintiff from payment of Court fee.

11) Learned counsel for the appellant in First Appeal No. 53/2015 would submit that finding recorded by the learned trial Court is erroneous finding and contrary to the evidence on record as plaintiff has miserably failed to prove that any act of omission has been done by defendant No.

1. The plaintiff has suffered no injury in eye, in fact there is clear cut evidence that even after getting advice from the Doctor she has approached specialist doctor at belated stage. The Doctor PW/2 in her cross-examination has categorically admitted that there is negligence on part of the plaintiff herself, therefore, the plaintiff is not entitled to get any compensation.

12)This Court has asked the State whether in compliance of the judgment and decree passed by the trial Court any amount of compensation has been paid or not? Pursuant to direction given by this Court, State has filed its reply on 09.03.2022 wherein they have stated that by cheque bearing No. 184985 dated 21.01.2016 amount of Rs. 1,00,000/- has been paid by the State Government to the plaintiff and the same has been acknowledged by the plaintiff on 01.02.2016.

13)On the other hand learned counsel for the plaintiff would submit that learned trial Court has granted compensation on lower side whereas the loss of left eye is 100%, therefore, he would submit that the compensation be enhanced to at least 3,00,000/- and he would refer to the judgment of Hon'ble Supreme Court in case of Balram Prasad vs Kunal Saha and Others 1, Basappa vs Bavaraj M. Tuppada and Another 2, Arun Kumar Manglik vs Thirau Health and Medicare 3 and Maharaja Agrasen Hospital v. Rishabh Sharma 4.

14)I have heard learned counsel for the parties and record of the Court below with utmost satisfaction.

15)From the evidence and materials on record, it is quite vivid that the defendant No. 1 has not led any evidence to defend the case to substantiate his averment in the written statement whereas the plaintiff has also not produced any evidence to explain why there was delay of three months for further treatment and also there is no expert opinion with regard to loss of eye. The plaintiff has also not proved the loss of earning capacity. As such, both the parties have failed to prove their case. Accordingly, the appeal filed by the defendant No. 1 i.e. First Appeal No. 53/2015 deserves to be dismissed.

16)This Court cannot lose sight of the fact that learned trial Court has awarded compensation to the tune of Rs. 1,00,000/- and no interest amount has been awarded for the last 12 years i.e. from the date of filing of the suit. This Court considering the fact that learned trial Court considered the fact that the plaintiff has suffered mental agony has also lost one of her eyes and has lost her earning capacity has granted Rs. 1,00,000/- which is on lower side. It is well settled position that

2014 (1) SCC 348

2018 (13) SCC 598

2019 (7) SCC 401

2020 (6) SCC 501

compensation should not be bonanza but it should be adequate compensation keeping in mind the basic principle of Expectancy Life Theory.

17)Hon'ble Supreme Court in case of Maharaja Agrasen Hospital (supra) has examined what will be the parameters to hold medical negligence and how the award of compensation can be ascertained within realm of tort law. The Hon'ble Supreme Court has held as under :- "12.4 Medical Negligence and Duty of Care

12.4.1 Medical negligence comprises of the following constituents:

(1) A legal duty to exercise due care on the part of the medical professional;

(2) failure to inform the patient of the risks involved; (3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional; (4) if the risk had been disclosed, the patient would have avoided the injury;

(5) breach of the said duty would give rise to an actionable claim of negligence.

12.4.2. The cause of action for negligence arises only when damage occurs, since damage is a necessary ingredient of this tort. In a complaint of medical negligence, the burden is on the complainant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioner's breach of duty. In the absence of evidence to the contrary adduced by the opposite party, an inference of causation may be drawn even though positive or scientific proof is lacking.

12.4.3 Medical negligence is the breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill and knowledge to the patient, to whom he owes a duty of care, which has resulted in injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient"

18)Considering the law laid down by the Hon'ble Supreme Court and considering the fact the plaintiff has lost one eye because negligence on the part of defendant No. 1, this Court enhances the compensation from

Rs. 1,00,000/- to Rs. 2,00,000/-. The amount of Rs. 1,00,000/- has already been paid by the State Government on 21.01.2016, remaining amount of Rs. 1,00,000/- shall be payable by defendant No. 1 Smt. Vatsala Lal. The State Government is directed to pay Rs. 1,00,000/- within two month from today and can recover the amount of Rs. 1,00,000/- which is payable to the plaintiff in pursuance of judgment and decree passed by this Court from the retiral and pensionary benefits payable to defendant No. 1 being a retired government servant.

19)Accordingly, First Appeal No. 53/2015 filed by defendant No. 1 is dismissed and First Appeal No. 89/2015 filed by the plaintiff is allowed in part by enhancing the compensation from Rs. 1,00,000/- to Rs. 2,00,000/-.

20)Decree be drawn up accordingly.

Sd/-

(Narendra Kumar Vyas) Judge

Deshmukh