Delhi High Court
Ashok Kumar Gupta vs A.I.I.M.S. on 22 July, 2011
Author: Rajiv Sahai Endlaw
2.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9562/2003 & CM No.14204/2003 (for interim direction).
ASHOK KUMAR GUPTA ..... Petitioner
Through: Mr. S.K. Gupta, Adv.
versus
A.I.I.M.S. ..... Respondent
Through: Mr. Rajta Katyal & Mr. Anchit Sharma,
Adv. for AIIMS.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 22.07.2011
1. The petition has been filed seeking compensation of `25 lacs with
interest from the respondent no.1 All India Institute of Medical Science
(AIIMS) and the respondents no.2&3 being the Doctors working at the
contemporaneous time in respondent no.1 AIIMS, for having caused injury to
the petitioner by medical negligence. Notice of the petition was issued and the
pleadings completed. Vide order dated 29th October, 2009 as modified on 26th
February, 2010, and in terms of Martin F. D' Souza v. Mohd. Ishfaq JT 2009
(2) SC 486 the Director General of Health Services (DGHS) was directed to
constitute a Medical Board comprising of the Heads of the Departments of
Orthopaedics and Neurology at the Dr. Ram Manohar Lohia (RML) Hospital
and the G.B. Pant Hospital. It was further directed that Dr.
Sidhu, Dr. K.S. Anand, HOD (Neurology) and Dr. D. Mittal, HOD
(Orthopaedics) at the Dr. RML Hospital will be members of the Board. Liberty
was granted to the Board to hear the petitioner as well as the respondent no.1
AIIMS.
2. The DGHS undercover letter dated 19th May, 2010 has forwarded a copy
of the report of the Board. The Board has inter alia opined that there was no
negligence on the part of the respondents.
3. The petitioner on 26th May, 2010 sought time to file objections to the
said report of the Board and has so filed the objections.
4. The petitioner in the said objections has controverted the report of the
Board.
5. The counsel for the respondents has initially contended that the Apex
Court in Martin F. D' Souza has held that if such a Board finds no case of
medical negligence to be made out, the remedy of the claimant is of preferring
a suit only. However he is unable to point out the same from the judgment.
6. The objections to the report of the Board, raised by the counsel for the
petitioner are however such which cannot be adjudicated without examination
and cross examination of witnesses. It is not possible to adjudicate the said
contentions in this jurisdiction. It is thus in any case felt that the challenge to
the report of the Board can be made only in a Suit or other appropriate
proceedings where witnesses can be examined and not by way of this petition.
7. The fact however remains that the petition has remained pending in this
Court since 2003. It is well-nigh possible that the Suit may now be barred by
time. The counsel for the respondent has been heard on the said aspect. It is
deemed expedient to direct that if the Suit is filed on or before 30 th September,
2011, it shall be entertained and the claim of the petitioner examined on merits
and shall not be barred by limitation.
The petition is thus disposed of. No order as to costs.
RAJIV SAHAI ENDLAW,J
JULY 22, 2011
Pp
