Sabiha Khan vs Uoi
2017 Latest Caselaw 5607 Del

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision: 11th October,2017

+     RFA 261/2007
      SABIHA KHAN                                        ..... Appellant

                         Through:      Ms.Aishwarya Bhati,
                                       Mr.Jaideep Singh, Ms.Tanuja
                                       Patra, Advocates.

                         versus

      UOI                                                ..... Respondent
                         Through:      Mr. Jaswinder Singh, Advocate.
      CORAM:
      HON'BLE MR. JUSTICE J.R. MIDHA
                             JUDGMENT

1. The Trial Court has awarded compensation of Rs.1,25,932/- along with interest @ 6% per annum to the appellant. The appellant is seeking the enhancement of the compensation amount.

2. On 14th May, 1999, the appellant suffered stomach ache and was taken to Station Sick Quarters at Air Force Station, New Delhi and was referred to Surgical OPD, Base Hospital, Delhi Cantt. where she was advised to undergo surgery for removal of gall bladder and cyst in the liver. The appellant was entitled to medical treatment in Armed Force Hospitals as her husband retired as Flying Officer (Hony.) from Indian Air Force on 31st July, 1995.

3. On 30th June, 1999, the appellant was admitted at the Base Hospital, Delhi Cantt where she was operated upon by Dr. Col. C.S. Joshi for removal

of gall bladder and cyst in the liver on 02nd July, 1999. The appellant was discharged on 06th July, 1999.

4. The appellant suffered continuous pain and fever after the surgery and she went to the Base Hospital on 09th July, 1999. The appellant continued to visit the Base Hospital with the aforesaid compliant on 07 th August, 1999 and 04th October, 1999 where she was examined and prescribed pain killers.

5. On 22nd November, 1999, the appellant was examined by the Medical Officer at Armed Force Station, New Delhi and was advised special investigation whereupon an ultra-sonography was carried out on 25th November, 1999 which showed existence of some foreign body. On 30th November, 1999, Dr. Captain Sood (Surgeon) examined the appellant's ultra-sonography report at the Base Hospital but merely prescribed some pain killers.

6. On 11th December, 1999, the appellant was taken to Holy Family Hospital in a serious condition. The appellant was advised immediate surgery as the CAT scan revealed abnormal rounded hypodense mass showing multiple tiny gas pockets covering a large area. The appellant underwent a surgery at Holy Family Hospital by Dr. Pradeep Chadha who removed a large rounded mass inside the abdomen which had badly damaged the intestines and stomach wall. The rounded mass taken out comprised of packing gauze/swab which is used by doctors to soak blood flowing from the operated area during the surgery and was left inside the abdomen during first surgery at the Base Hospital. The appellant was discharged from Holy Family Hospital on 31st December, 1999.

7. The appellant issued a legal notice and thereafter, instituted a suit for compensation of Rs.11,02,500/-. The appellant appeared in the witness box

and reiterated the averments made in the complaint. The appellant proved the medical expenditure of Rs.25,932,/- incurred on the second surgery underwent by her. She deposed that her husband was a heart patient and she has three unmarried children, one of them being mentally retarded and fully dependent on her. The appellant's husband appeared in the witness box as PW-2 and supported the appellant's case. Dr. Pradeep Chadha, Consultant Surgeon of Holy Family Hospital appeared in the witness box as PW-5 and proved the recovery of the packing gauze/swab from the abdomen of the appellant. PW-5 proved the certificate dated 20th December, 1999 which is reproduced hereunder:-

       "Adm.No.14766-99                           20th December, 99
                   TO WHOMSOEVER IT MAY CONCERN

This is to certify that Mrs. Sabiha Khan W/O.Mr.E.A.Khan was admitted on 13.12.99 in this hospital and operated on 15.12.99 wherein a foreign body was recovered from abdomen. She requires further hospitalization of about two weeks more.

Signed DR. P.CHADHA, MS Surgeon"

8. The respondent examined Dr. Col. C.S. Joshi as DW-1, who had operated the appellant at the Base Hospital on 02nd July, 1999. DW-1 deposed that he operated the appellant on 02 nd July, 1999 for Cholecystectomy and the operation was successful. The appellant was discharged on 06th July, 1999 in normal condition and was advised to take medicines for three days and review thereafter. He further deposed that no foreign body whatsoever was left during the operation. The standard laid

down procedure was followed and the possibility of leaving a packing gauze/swab inside the abdominal cavity did not arise at all.

9. The learned Trial Court held that the recovery of foreign body during the appellant's surgery at Base Hospital on 02nd July, 1999, manifests negligence on the part of the Doctor who performed the said operation. The learned Trial Court awarded Rs.25,932/- towards medical expenses for second operation and Rs.1,00,000/- as damages for mental agony and physical pain to the appellant. The learned Trial Court awarded interest @ 6% per annum to the appellant from the date of filing of the suit till realization.

10. During the pendency of this appeal, the appellant suffered incisional hernia for which she visited the Holy Family Hospital on 19th January, 2007. The appellant continued her treatment at the Holy Family Hospital and visited the hospital on 24th October, 2008, 31st October, 2008, 19th June, 2009, 18th June, 2011, 09th July, 2011, 12th July, 2011, 16th July, 2011, 21st July, 2011, 06th September, 2011, 22nd September, 2011 and 11th October, 2011. The appellant underwent a surgery for incisional hernia on 02nd July, 2011 at Holy Family Hospital and incurred expenditure of about Rs.70,000/- on the said surgery.

11. Vide order dated 24th February, 2012 in CM No.21374/2011, the appellant was permitted to lead additional evidence with respect to the third surgery underwent by her and the expenditure incurred on the said surgery. The appellant examined Dr. Pradeep Chadha as AW-1, Senior Consultant Surgeon, Holy Family Hospital who had conducted the third surgery of the appellant on 02nd July, 2011 for incisional hernia. Dr. Pradeep Chadha AW- 1 is a qualified General Surgeon from Safdarjung Hospital since 1985 and

the Head of the Department of surgery of the Holy Family Hospital since February, 1997.

12. AW-1 proved the discharge summary as Ex.AW1/1, certificate dated 04th November, 2011 as Ex.AW1/2 and OPD record of the appellant as Ex.AW1/3. Ex.AW1/3 is the OPD record of the appellant which records the appellant's visit to Holy Family Hospital on 19th January, 2007, 24th October, 2008, 31st October, 2008, 19th June, 2009, 18th June, 2011, 09th July, 2011, 12th July, 2011, 16th July, 2011, 21st July, 2011, 06th September, 2011, 22nd September, 2011, 11th October, 2011 and the treatment prescribed on the said dates.

13. Dr. Pradeep Chadha issued the certificate dated 04th November, 2011 (Ex.AW1/2) in which he certified that the surgery done on 02nd July, 2011 was the consequence of initial complication of surgery conducted at the Army Base Hospital Ex.AW1/2 is reproduced hereunder:-

"November 04, 2011 IPD NO : 11 / 009399 TO WHOMSOEVER IT MAY CONCERN This is in reference to request of Mrs. Sabiha Khan, ask the surgery done on 02.07.2011 vide IPD No.11/009399, was consequence of initial complication of surgery conducted at Army Base Hospital, Delhi Cantt, New Delhi, we can submit that the present surgical procedure was a consult of aforesaid surgical condition.

DR. PRADEEP CHADHA, M.S.

SENIOR CONSULTANT SURGERY"

14. Dr. Pradeep Chadha, AW-1 was cross examined at length by the respondent. Relevant portion of the cross examination of AW-1 is reproduced hereunder:-

"Q. Can you specify the basis on which you have issued certificate AW1/2?

Ans. The initial surgery was done to ratify the complication viz., removal of surgical packing gauze/sponge from the abdomen of the patient Sabiha Khan operated at Army Hospital. Had the previous surgery not being done, present complication would not have arisen. Q. Can you tell in which portion the incisional hernia was formed? Ans. The incisional hernia was formed in the scar of the second surgery done to remove the packing gauze/sponge from the abdomen of the appellant.

Q. Is this correct. that incisional hernia occurred due to second surgery?

Ans. It is correct Vol. this incisional hernia would not have occurred but for the second surgery it is wrong to suggest that this incisional hernia occurred due to second surgery. It is wrong to suggest that it occurred as the second surgery was not done properly. Q. Can you tell in which incision the hernia developed? Ans. The hernia occurred at the junction of the first and the second incision. It is wrong to suggest that the closure the second surgery led to the incision hernia. It is correct that the incision hernia can occur after a period of 8 years of the surgery. It is wrong to suggest that I am deposing falsely at the instance of Sabiha Khan appellant."

15. No evidence was led by the respondent to rebut the additional evidence led by the appellant.

16. The appellant is seeking enhancement of compensation for loss of amenities of life, loss due to hardship, inconvenience, mental agony and pain and suffering from Rs.1,00,000/- to Rs.10,00,000/-. The appellant is also seeking compensation for mental agony, pain and suffering for the incisional hernia, third surgery dated 02nd July, 2011 and expenditure of Rs.70,000/- incurred on the third surgery dated 02nd July, 2011. The appellant is also seeking enhancement of the rate of interest from 6% to 9%.

17. Learned counsel for the appellant urged at the time of hearing that the respondent has accepted the impugned judgment dated 29 th November, 2006 and has paid the compensation award of Rs.1,25,932/- along with interest thereon in terms of the impugned judgment to the appellant. As such, the finding of negligence and the liability of the respondent has attained finality which is not under challenge in this appeal. It is further submitted that incisional hernia suffered by the appellant was a consequence of the initial complication of the surgery conducted on 02nd July, 1999 and, therefore, the appellant is entitled to the compensation for the same.

18. Learned counsel for the respondent urged at the time of hearing that the compensation awarded by the Trial Court does not warrant enhancement. It is submitted that the incisional hernia allegedly suffered by the appellant has no casual connection with the first surgery performed by respondent. It is submitted that incisional hernia occurred due to the second surgery performed by Dr. Pradeep Chadha and therefore, there is no casual link between the first surgery and the incisional hernia. It is further submitted that incisional hernia in a medical condition can develop if stitching is not done properly or incorrect surgical methods are adopted for stitching and it cannot be attributed to the first surgery performed by respondent.

19. The following questions arise for consideration:-

(i) Whether the compensation awarded by the learned Trial Court warrants enhancement?

(ii) Whether the incisional hernia suffered by the appellant in 2007 for which she underwent third surgery in 2011, has a casual connection with the first surgery performed by respondent in which packing

gauze/swab was left in the appellant's stomach? If yes, amount of compensation to be awarded to the appellant?

20. This is a clear case of gross negligence on the part of the respondent in leaving a packing gauze/swab during the surgery for removal of gall bladder and cyst in liver on 02nd July, 1999. The appellant repeatedly visited the Base Hospital with complaints of pain and fever and there was continuous negligence on the part of the respondent as no steps were taken to trace the packing gauze/swab and to remove the same. The ultra- sonography report dated 25th November, 1999 clearly reflected a foreign body but still no remedial action was taken and merely pain killers were advised.

21. The appellant's condition became serious on 13th December, 1999 when she was rushed to Holy Family Hospital where the CT scan revealed foreign body for which a second surgery was performed on 15th December, 1999 by which time the stomach and intestines walls had severely damaged which endangered the appellant's life. The appellant was discharged from Holy Family Hospital after 18 days on 31st December, 1999. The appellant developed hernia at the spot of the operation and again continued the regular treatment. The appellant's husband is a heart patient who himself underwent heart surgery at Escorts Heart Institute, New Delhi. The appellant had three young children to be looked after, one of whom is mentally retarded and fully dependant on her. During this entire period, the appellant underwent pain and mental agony, and obviously there was a lot of suffering for her family as well.

22. With respect to incisional hernia, suffered by the appellant during the pendency of this appeal, the appellant examined Dr. Pradeep Chadha as

AW-1 who proved that the surgery for incisional hernia on 02 nd July, 2011 was the consequence of initial complication of surgery conducted at Base Hospital (Ex.AW1/2). The respondent cross-examined AW-1 at length. No evidence has been led by respondent to rebut the testimony of AW-1. In view of the un-rebutted testimony of AW-1, it is held that incisional hernia suffered by the appellant for which she underwent a surgery on 02nd July, 2011, is the consequence of the negligent surgery performed by respondent on the appellant on 02nd July, 1999 in which packing gauze/swab was left in the appellant's abdomen for which she had to undergo a second surgery for its removal on 15th December, 1999.

23. The evidence adduced by the appellant has conclusively established that packing gauze/swab was left behind inside her stomach at the time of operation done by the respondents due to negligence and want of sufficient care and caution in conducting the operation. There is gross negligence both in carrying out the surgery as well as in carrying out post-treatments. DW-1 who performed the surgery on 02nd July, 1999 made false statement on oath that no swab was left during the operation conducted by him although there was clear medical evidence in the form of medical record as well as testimony of PW-5, Dr. Pradeep Chadha. The Doctrine "Res Ipsa Loquitur" squarely applies to the facts of the present case.

24. The appellant suffered pain and suffering from 02nd July, 1999 to 15th December, 1999 and she underwent a surgery on 15th December, 1999 for removal of the packing gauze/swab for which the Trial Court awarded Rs.25,932/- to the appellant towards expenditure incurred on the surgery dated 15th December, 1999 and Rs.1,00,000/- under the heads of mental agony and physical pain which is on a lower side and warrants enhancement.

The claim for mental agony and physical pain is enhanced from Rs.1,00,000/- to Rs.3,00,000/-.

25. The appellant developed incisional hernia in 2007 for which she continued the treatment up to 2011 and thereafter, underwent surgery for incisional hernia on 02nd July, 2011. A further compensation of Rs.2,00,000/- is awarded to the appellant for pain and suffering for the period 2007 to 2011 and for the third surgery underwent by the appellant on 02nd July, 2011. The appellant has incurred expenditure of Rs.70,000/- on the surgery dated 02nd July, 2011 and the original bills have been placed on record. Rs.70,000/- is awarded to the appellant towards expenditure incurred on the surgery dated 02nd July, 2011.

26. The appellant is entitled to total compensation of Rs.5,95,932/- (Rs.3,00,000 + Rs.25,932) + (Rs.2,00,000 + Rs.70,000).

27. The Trial Court had awarded interest @ 6% per annum which is on a lower side. The Supreme Court as well as this Court have been consistently awarding interest @ 9% per annum. Reference is made to Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100.The rate of interest enhanced from 6% to 9%.

28. The appeal is allowed and the compensation awarded by the Trial Court is enhanced from Rs.1,25,932/- to Rs.5,95,932/-. The appellant shall be entitled to interest @ 9% per annum on Rs.3,25,932/- from the date of filing of the suit till realization and on the balance amount of Rs.2,70,000/- from 02nd July, 2011 till realization.

29. The respondents are directed to deposit the enhanced decretal amount with Registrar General of this Court within 30 days.

30. List for disbursement of the decretal amount on 12th December, 2017.

31. Copy of this judgment be given dasti to learned counsels for the parties.

OCTOBER 11, 2017                                    J.R. MIDHA, J.
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