Madras High Court
Joint Director Of Health Service vs Rajendran on 8 February, 2021
S.A.No.1461 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 01.03.2021
PRONOUNCED ON : 17.03.2021
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S.A.No. 1461 of 2008
and
M.P. Nos. 1 of 2008 and 1 of 2010
1. Joint Director of Health Service
Periyar District at Erode-1.
2. The Deputy Director of Medical Rural Health &
Family Welfare, Periyar District at Erode.
3. The District Collector, Erode District, Erode
4. The Director of Family Welfare, Chennai 8
5. The Secretary, Health Department, Secretariat
Chennai. ...Appellants
Vs.
1. Rajendran, Son of Gurusamy (died)
2. Minor Ranjitha, D/o. Rajendran (Major)
3. Mrs. Jothi
4. Velavan (minor)
5. Selvi. Nithyapriya (minor) ... Respondents
Respondents 3 to 5 brought on record as LRs of
the deceased first respondent viz. Rajendran vide
order of court dated 08.02.2021 made in CMP
No.25850/19 in S.A. No.1461/2008
Page 1 of 23
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
R2 declared as major vide order of court dated
08.02.2021 made in CMP No.25851/19 in SA
No.1461/2008
Prayer: Second Appeal is filed under Section 100 of CPC, 1908 against
the judgment and decree dated 21.04.2007 made in A.S.No.61/2006 on
the file of the Principal District Judge of Erode which was reversed by
the judgment and decree made in O.S.No.407/1998 dated 08.07.2004 on
the file of the Principal Subordinate Judge of Erode.
For Appellants : Mr. N. Manikandan
Government Advocate (CS)
For Respondents : Mr. N. Manokaran
JUDGMENT
Challenge in this second appeal is made to the judgment and
decree dated 21.04.2007 passed in A.S.No.61/2006 on the file of the
Principal District Court, Erode, modifying the judgment and decree dated
08.07.2004 passed in O.S.No.407/1998 on the file of the Principal
Subordinate Court, Erode.
2.For the sake of convenience, the parties are referred to as per
their rankings in the trial court.
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
3. The defendants in O.S.No.407/1998 are the appellants in the
second appeal.
4. Suit for damages / compensation.
5. The case of the plaintiffs, in brief, is that the first plaintiff
married one Radha six years back and out of the wedlock, Radha gave
birth to one female baby, who is aged 3 years and she is the second
plaintiff and thereafter, Radha got conceived again and delivered a male
baby on 26.04.1996 and the abovesaid delivery is a normal delivery and
therefore, the first plaintiff and his wife decided to go for a family
planning and they were advised to go to Thanthai Periyar Government
Head quarters Hospital, Erode, for family planning operation by the
Primary Health Centre, Modakkurichi and the first plaintiff's wife Radha
was admitted at Erode Government Hospital for family planning
operation on 28.04.1996 and after medical check up by a team of doctors,
the doctors were satisfied that she was in good health and a fit person to
have the sterilisation surgery, on 30.04.1996 Radha was taken to
operation theatre, where a team of doctors, under the control of the
defendants, performed the operation and declared the operation a
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
success. After the operation, Radha was admitted as inpatient in the
hospital and given treatment and however, the very next day, Radha
experienced high temperature and she was uneasy and despite the same
being brought to the notice of the doctors concerned, no immediate
attention was paid to the first plaintiff's wife and only the routine check
up was given to Radha and thereby her health condition got deteriorated
and she experienced untold sufferings and despite the same, the duty
doctors paid only casual visits and at last, the first plaintiff's wife Radha
died on 05.05.1996 at about 5.20 A.M. and the dead body was handed
over to the first plaintiff by the defendants without giving any
explanation for her death and no postmortem was done on her body.
Being a layman, the first plaintiff received the dead body and cremated
her. Thereafter, he had approached the hospital authorities to know the
cause of death of his wife, but, there was no proper response. Later on,
he was informed that his wife died due to Pyogenic Menirigtise
Septicemia and further the first plaintiff believed that his wife had died
only due to the carelessness and negligence on the part of the duty
doctors during sterilisation operation and post operational period and the
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
male baby delivered by Radha, though was hale and healthy, however,
the baby also died after 90 days and even the cause of death of the baby
is not known to the first plaintiff. Probably the baby would have died
due to the infection from the feeding of the mother. If the duty doctors
had treated Radha, particularly, during and after operational period, the
life of Radha could have been saved as well as the baby could have also
been saved. The first plaintiff's wife Radha was engaged as an
agricultural coolie and was maintaining two buffullows and was earning
not less than Rs.2000/- per month and out of the said income their
daughter was being maintained. Due to the demise of Radha, the
plaintiffs have lost her love and affection as well as are suffering
immensely on various factors and though the defendants would claim
that their doctors are specialised in all the fields of medicine, however,
they had failed to bestow utmost attention and care to the first plaintiff's
wife who had suffered during the post operational period and therefore,
the defendants are liable to pay suitable damages to the plaintiffs for the
demise of Radha who had died only on account of the improper treatment
and the negligence caused by the doctors in providing good treatment to
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
his wife and accordingly, the plaintiffs have come forward with the suit
claiming a compensation of Rs.3,00,000/- for the death of the first
plaintiff's wife.
6. The defendants resisted the plaintiffs' suit contending that
the first plaintiff's wife Radha was admitted in Erode Government
Hospital for family planning operation on 28.04.1996 and she underwent
medical check up and the team of doctors were satisfied that she was in
good health and also a fit person for sterilisation and on 30.04.1996, the
first plaintiff's wife was taken to operation theatre and operated and the
operation was declared as success. However, it is false to state that on
the very next day Radha experienced high temperature and she was
uneasy and also false to state that the abovesaid complaints were brought
to the knowledge of the duty doctors but they had not paid immediate
attention to the first plaintiff's wife. The treatment given to Radha was
complete in all the aspects and inspite of the proper treatment she had
died unexpectedly due to Pyogenic Mentingitis i.e. Septicemia and there
was no negligence on the part of the medical officers qua the death of
Radha. The Government Head Quarters Hospital, Erode, is one of the
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
best hospitals in the state with all the facilities and the first plaintiff's
wife had died unexpectedly even though special care was provided to her
and it is false to state that the dead body was handed over to the first
plaintiff without explaining the reasons of her death. As per the request
of the first plaintiff and his relatives, the dead body was handed over
without postmortem and there is no negligence or carelessness on the
part of the defendants in providing the treatment to Radha. The
defendants are not admitting the earning capacity of Radha as claimed in
the plaint. The defendants are not liable to pay the compensation to the
plaintiffs and hence the suit is liable to be dismissed.
7. In support of the plaintiffs' case, P.W.1 was examined and
Exs.A1 to A12 were marked. On the side of the defendants D.Ws.1 to 4
were examined and Ex.B1 was marked.
8. On a consideration of the oral and documentary evidence
adduced by the respective parties, and the submissions made, the trial
court was pleased to grant a sum of Rs.1,60,000/- as compensation to the
plaintiffs after holding that the deceased Radha had died only due to the
carelessness and negligence of the doctors of the defendants in
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
providing adequate and proper treatment. Aggrieved over the quantum
of compensation fixed by the trial court, the first appeal has been
preferred by the plaintiffs. The first appellate court, on an appreciation
of the materials available on record, both oral and documentary, and the
submissions put forth by the respective parties, was pleased to modify the
judgment and decree of the trial court by enhancing the compensation to
the plaintiffs at Rs.3,00,000/- and accordingly disposed of the appeal.
Challenging the same, the present second appeal has been laid by the
defendants.
9. At the time of admission of the second appeal, the following
substantial questions of law were formulated for consideration.
1) Whether the court below is correct in awarding compensation
by relying upon G.O. Ms. No.183, Health and Family Welfare
(R.1) Department, dated 11.09.2006?
2) Whether the appellate court decree is justifiable in enhancing
the compensation amount based on G.O. when it is not marked
as a document before the trial court?
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
3) Is not the appellate court erred in enhancing the compensation
amount by misunderstanding the contention of the G.O.?"
10.The suit has been laid by the plaintiffs seeking
compensation on account of the demise of Radha, the first plaintiff's wife
and the mother of the second plaintiff, as according to the plaintiffs, the
deceased Radha died due to the carelessness and negligence of the
doctors of the defendants' hospital in providing proper and adequate
treatment to her during her hospitalisation for sterilisation and during
post operational period. From the pleas and the materials placed on
record, it is found that, and not disputed as such, the deceased Radha was
performed sterilization operation by the doctors of the defendants on
30.04.1996 at Government Hospital, Erode, and the operation has been
declared as success. It is also not disputed by the defendants that when
Radha was admitted in the hospital for sterilization operation, she had
underwent medical check up and a team of doctors were satisfied that she
was in good health and also a fit person to have sterilization. Therefore,
even according to the defendants, the deceased Radha was a fit person to
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
undergo sterilization operation in all aspects and according to them, the
operation performed was a successful one. However, the fact remains
that Radha subsequently died on 05.05.1996 during the hospitalisation
and according to the plaintiffs after the sterilization operation, the
deceased experienced high temperature and she was uneasy and though
the abovesaid condition of the deceased was reported to the doctors
concerned, no attention was paid to her other than the normal attention
and thereby the deceased' condition became serious and despite the
untold sufferings experienced by the deceased had been reported to the
doctors, they had not bestowed their attention to her properly and
resultantly, according to the plaintiffs, the deceased died due to the
negligence and carelessness of the doctors who had attended on her by
not providing proper and adequate treatment.
11. In this connection, the defendants would claim that the
deceased Radha died due to Pyogenic Mentingitis i.e. Septicemia.
D.W.1 is the chief medical officer of the Government Hospital, Erode,
and though D.W.1 would claim that proper and adequate treatment had
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
been provided to the deceased and however, the deceased had died due to
Pyogenic Mentingitis i.e. Septicemia, D.W.1 has clearly admitted that
she was not the part of the team who performed the sterilization
operation on the deceased and further admitted that she has no personal
knowledge as to how the operation was conducted and further also
admitted that she had seen the deceased Radha for the first time on
04.05.1996 and does not know as to what were the medicines prescribed
to her and also does not know directly as to her condition thereafter and
further admitted that in the case sheet marked as Ex.B1 it has been
reported that she was experiencing temperature at 101o Fahrenheit and
the same had been corrected also and even the medicine prescribed to her
in Ex.B1 had been corrected and further also admitted that as regards the
cause of death of the deceased being Pyogenic Mentingitis i.e.
Septicemia, it is her evidence that the same could only be explained by
the special doctors and though, she being the head of the Government
Head Quarters hospital, Erode, she has admitted that after the death of
the deceased, the cause of the death had not been ascertained by
conducting the post mortem on the dead body and the above being the
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
evidence of D.W.1, as rightly concluded by the courts below, no safe
reliance could be attached to the evidence of D.W.1 to hold that proper
and adequate treatment had been provided to the deceased Radha
particularly for the sufferings undergone by her after the sterilization
operation. The deceased Radha having died 5 days after the sterilization
operation and when she has been declared to be the fit person to undergo
the operation by the team of doctors, it is for the doctors, who attended
on her after the operation, to explain as to why she had suddenly
developed the pain and sufferings and what are the reasons for the same
and what medicines had been offered to her with reference to the same.
However, when nothing has been disclosed by D.W.1 on the abovesaid
aspects, the evidence of D.W.1 would be of no use to sustain the defence
version.
12. D.W.2 is the medical officer who had performed the
sterilization operation on the deceased. She would claim that the
operation was conducted properly and the same is a successful one.
D.W.2 would further admit that the deceased was found to be a fit person
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
to undergo the sterilization operation and also admitted that in Ex.A8,
which is the death report issued by the Superintendent of the Government
Hospital, Erode, no reason has been assigned for the death of Radha and
further also admitted that no postmortem was conducted on the dead
body. Therefore, when as per the evidence of D.W.2, the deceased was
held to be a fit person to undergo sterilization operation and though
D.W.2 would claim the sterilization operation performed on the deceased
was a successful one, she is unable to explain as to how could the
deceased thereafter develop high temperature and uneasy feelings and
discomfort and why proper post care treatment had not been provided to
her by the doctors attached to the hospital. When the real cause of death
of the deceased could only be gathered by conducting the postmortem, it
is very strange on the part of the doctors to allege that no postmortem
was conducted on the dead body particularly when they had asserted that
the deceased died unexpectedly due to Pyogenic Mentingitis i.e.
Septicemia. If that is the real cause of the death of the deceased, when the
same could be gathered from the postmortem certificate, if it had been
done, there is no proper explanation on the part of the doctors as to why
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
the postmortem had not been conducted on the dead body. The same has
also been accepted by doctor Radha examined as D.W.3. D.W.3 is the
doctor who was part of the team of the sterilization operation conducted
on the deceased and she has admitted that the deceased was found to be a
fit person to undergo the sterilization operation. D.W.3 has clearly
admitted that only by conducting the postmortem, the proper and real
cause of death of the deceased could be ascertained. Such being the
evidence of D.W.3, when the case of the defendants that the deceased
had died unexpectedly after the operation, that too, after 5 days, the
hospital authorities should have conducted the postmortem of the
deceased to determine the real cause of the death.
13. D.W.4 is the doctor who claims to have given some
treatment to the deceased and according to him, on 05.05.1996 at about
5.15 A.M. when he examined her she was having some breathing
problem and she had no complaints of any pulse and blood pressure, etc.,
and however, she had been reported to be dead at 5.20 A.M. and would
admit that he could not say as to whether the deceased could have been
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
saved if proper treatment had been provided to her. Therefore, when the
doctors who had actually given treatment to the deceased during the post
operational period had not been examined by the doctors to prove as to
the nature of the treatment given to the deceased, what were the
sufferings undergone by the deceased during the relevant period and
when the doctors examined as D.Ws.1 to 4 are not clear and able to say
positively as to what actually were the sufferings undergone by the
deceased after the operation, what was the special treatment provided to
her to alleviate her sufferings and when according to them the deceased
had died unexpectedly due to Pyogenic Mentingitis i.e. Septicemia it is
for the doctors to explain that the deceased had died despite the post
treatment provided to her. Even the alleged cause of death, as spoken to
by the doctors, as such cannot be accepted straightaway as as above
pointed out, as the real cause of death of the deceased could only be
ascertained by conducting the postmortem of the deceased. Therefore,
when it is found that the deceased having died during post operational
period i.e. 5 days after the operation, on 05.05.1996, when the doctors
examined in the matter are unable to come out with the clear picture as
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
to how come the deceased had developed complications when she had
been declared to be a fit person to undergo the operation and what were
the medicines prescribed to the deceased for solving her problems and
when according to the plaintiffs no proper treatment had been given to
the deceased despite the complaints suffered by her being brought to the
knowledge of the doctors concerned, the resultant position would be that,
as held by the courts below, the deceased had died only due to the
negligence and carelessness of the doctors in providing the necessary
treatment to her during the post operational period and though the
sterilization operation was declared to be a success one, when the
deceased is found to have been not provided with proper post operation
care and treatment and the deceased having developed complications
thereafter and the defendants having not established that proper and
adequate treatment had been provided to the deceased during the relevant
period i.e. from 30.04.1996 to 05.05.1996 till her demise and when the
cause of death alleged by the defendants for the deceased death is not
established to be the true cause, particularly, the defendants having failed
to perform the postmortem of the deceased for the reason best known to
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
them, all put together, the determination of the courts below that the
deceased had died only due to the carelessness and negligence of the
defendants' doctors do not warrant any interference as the abovesaid
determination is found to be correct and right based on the proper
appreciation of the materials available on record.
14. The trail court had determined the compensation payable to
the plaintiffs at Rs.1,60,000/-, whereas the first appellate court had
determined the compensation payable to the plaintiffs at Rs.3,00,000/- as
claimed in the plaint.
15. The first appellate court seems to have relied upon the
G.O. Ms. No.183, Health and Family Welfare (R.1) Department, dated
11.09.2006. However, in my considered opinion, the abovesaid G.O.
may not be applicable to the case at hand, when it is found that the
deceased had died only due to the negligence and carelessness of the
defendants' doctors by not providing proper and adequate treatment to
her during the post operational period i.e. from 30.04.1996 to
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
05.05.1996. Furthermore, the abovesaid G.O. is found to have come into
effect from 29.11.2005. In any event, the first appellate court, after
adverting to the abovesaid G.O., after asserting that it is only the
defendants' carelessness and negligence which is the cause for the death
of the deceased, considering the age and income of the deceased,
particularly, there being no contra evidence, the deceased having died at
a very young age and the sufferings and pain undergone by the plaintiffs
due to the sudden demise of the deceased, all put together, determined
the compensation at Rs.3,00,000/- . The quantum of compensation fixed
by the first appellate court, in my considered opinion, cannot be held to
be excessive, particularly, considering the age of the deceased, the
earning capacity of the deceased and the longevity of the deceased if she
had remained alive and therefore, the compensation of Rs.3,00,000/-
awarded to the plaintiffs is a reasonable compensation and I do not find
any valid reason to interfere with the same.
16. There is one other aspect to be considered in this matter.
The trial court had granted a compensation of Rs.1,60,000/- in favour of
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
the plaintiffs, after holding that the deceased had died only due to the
negligence and carelessness of the doctors by not providing adequate
treatment to her during the post operation period. Challenging the same,
the defendants have not preferred any appeal. It is only the plaintiffs
who had come forward with the appeal seeking for enhancing the
compensation. Even in the said appeal, the defendants have not preferred
any cross objection. Therefore, when the determination of the trial court
that the deceased had died only due to the carelessness and negligence of
the doctors of the defendants by not providing proper and adequate
treatment during post operational period and when the same had also
been confirmed by the first appellate court and the reasons assigned by
the courts below for the same being centering on factual matrix and not
shown to be in any manner perverse, illogical, irrational, I am not
inclined to interfere with the said determination at this stage of second
appeal. The substantial questions of law formulated are centering around
the G.O. Ms. No.183, Health and Family Welfare (R.1) Department dated
11.09.2006. Further, as above pointed out, though the first appellate
court has referred to the abovesaid G.O., it has not relied upon the
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
abovesaid G.O. for enhancing the compensation in favour of the
plaintiffs. On the other hand, on factual matrix, considering the age,
earning capacity of the deceased and the sufferings and pain that would
be undergone by the plaintiffs due to her sudden demise on various
heads, rightly enhanced the compensation payable to the plaintiffs at
Rs.3,00,000/-. No reason is warranted to interfere with the abovesaid
determination of the first appellate court. In my considered opinion, no
substantial question of law is involved in the second appeal. Be that as it
may, the substantial questions of law formulated in the second appeal, for
the reasons aforestated, are accordingly answered in favour of the
plaintiffs and against the defendants.
17. In support of his contentions, the plaintiffs' counsel, placed
reliance upon the following decisions reported in
1) CDJ 2006 MHC 1749 (R. Muthu v. State of Tamil
Nadu, rep by its secretary to Government & others)
2) 2016-4-L.W.499 (S. Ganesan v. The Secretary to
Government, Health Department, Govt. of Tamil Nadu)
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
3) 2019-5-L.W. 755 (The District Collector, Salem and
others vs. Ashokan and others)
Similarly, in support of his various contentions, the Government
Advocate placed reliance upon the following decisions reported in
1) CDJ 2009 MHC 5121 (Kanagavalli v. The Secretary
to Government, Dept. of Health & others
2) Civil Appeal No.5128 of 2002 2005 Scale 6 770
(State of Punjab v. Shiv Ram and others)
3) 2014-2-LW 862 (Union of India (UOI) and Ors. vs.
Vasavi Co-op Housing Society Ltd., and Ors)
4) 1999 ACJ 454 (Shanta v. State of Andhra Pradesh
and Ors.)
5) (2008) 4 Supreme Court Cases 219
(Chokalingaswami Idol through its Hereditary
Trustee R.N. Pillai vs. Gnanapragasam (dead) by
Lrs
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
The principals of law outlined in the abovesaid decisions are taken into
consideration and followed as applicable to the case at hand.
18. In conclusion, the judgment and decree dated 21.04.2007
passed in A.S.No.61/2006 on the file of the Principal District Court,
Erode, modifying the judgment and decree dated 08.07.2004 passed in
O.S.No.407/1998 on the file of the Principal Subordinate Court, Erode,
are confirmed. Resultantly, the second appeal is dismissed with costs.
Consequently, connected miscellaneous petitions are closed.
17.03.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Principal District Judge, Erode,
2. The Principal Subordinate Court, Erode,
3. Section Officer, VR Section, High Court, Madras
https://www.mhc.tn.gov.in/judis/
S.A.No.1461 of 2008
T. RAVINDRAN, J.
bga
Pre-delivery Judgment
made in
S.A.No.1461 of 2008
17.03.2021
https://www.mhc.tn.gov.in/judis/
