Madras High Court
Dinesh vs G.Parthasarathy on 20 September, 2023
C.R.P.No.3493 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.3493 of 2023
and
CMP.No.21749 of 2023
Dinesh .. Petitioner
Vs.
1.G.Parthasarathy
2.The Superintendent,
Egmore Government Child Hospital,
Chennai.
(impleaded as per order in I.A.No.816 of 2000
and amended in I.A.No.871 of 2000)
3.The Chief Medical Officer,
Government Hospital, Kanchipuram.
4.The State of Tamil Nadu,
Represented by Secretary to Government,
Department of Health and Family Welfare,
Fort St.George, Chennai – 600 009. .. Respondents
(Respondents 3 and 4 were impleaded as per judgment
and decree dated 31.08.2010 in A.S.No.1021 of 2007
and M.P.No.1 of 2008 on the file of Hon'ble
High Court, Madras)
1/9
https://www.mhc.tn.gov.in/judis
C.R.P.No.3493 of 2023
PRAYER : Civil Revision Petition is filed under article 227 of the
constitution of India, to set aside the fair and decreetal order passed in
I.A.No.820 of 2012 in O.S.No.230 of 1998, dated 20.03.2013 by the
learned Sub Court, Kancheepuram.
For Petitioner : Mr.R.Singaravelan, Senior Counsel for
M/s.M.Srividhya
For Respondents : Mr.K.S.Naveen Balaji for R1
: Mr.B.Tamil Nidhi for R2 to R4
Additional Government Pleader (CS)
ORDER
The Civil Revision Petitioner before me is the plaintiff in
O.S.No.230 of 1998. In the year 1994, when he was a baby of 1 ½ years
old, a suit had been presented by his mother claiming damages. She had
claimed a damage of Rs.5,00,000/- (Rupees five lakhs only) for medical
negligence caused by the defendants. A detailed previous history of the
case is not necessary at present. Suffice it to record that by Judgment and
decree in A.S.No.1021 of 2007, dated 31.08.2010, this Court allowed the
appeal and remanded the matter back to the Trial Court for the purpose of
impleading the Chief Medical Officer, Government Hospital,
Kancheepuram and the State of Tamil Nadu represented by the Secretary
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C.R.P.No.3493 of 2023
to Government, Department of Health and Family Welfare, Fort
St.George, Chennai – 600 009.
2. When the Civil Revision Petitioner was a child aged about 1 ½
years, he was a victim of harsh medical treatment. On account of the said
fact, he had lost his Right Forearm. On account of the wrong treatment,
the Right Forearm of the plaintiff has been amputated. Claiming that the
damage of Rs.5,00,000/- (Rupees five lakhs only) as claimed by the
mother is insufficient, he took out an application in I.A.No.820 of 2012.
In the said application, he wanted enhancement of compensation from
Rs.5,00,000/- (Rupees five lakhs only) to Rs.15,00,000/- (Rupees fifteen
lakhs only).
3. This was resisted before the Trial Court as well as before me, on
the ground that the High Court had not permitted the petitioner to file an
application for enhancement of compensation in A.S.No.1021 of 2007.
Taking note of this submission, the learned Trial Judge dismissed the
petition. It is against the said order, the present revision has been filed.
4. Heard Mr.R.Singaravelan representing Ms.M.Srividhya, learned
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C.R.P.No.3493 of 2023
Senior Counsel appearing for the petitioner and Mr.K.S.Naveen Balaji,
learned counsel appearing for the 1st respondent and Mr.B.Tamil Nidhi,
Additional Government Pleader appearing for the respondents 2 to 4.
5. Mr.R.Singaravelan, learned Senior Counsel would submit that
the petitioner having suffered damages due to medical treatment and
could not quantify the dangers that he suffered while he was a child. He
was brought to notice that in O.S.No.230 of 1998, which had been filed
by his mother and next friend Shanthi had quantified the amount at
Rs.5,00,000/- (Rupees five lakhs only). He would state that on attaining
majority, taking into consideration, the disability that the plaintiff is
actually facing, though he is entitled to higher compensation, he has
restricted to Rs.15,00,000/- (Rupees fifteen lakhs only).
6. Mr.K.S.Naveen Balaji would resist the same and states that the
claim amount is barred by time and apart from that he would also assert
that the fault is on the Government Hospital and not on his client.
Mr.B.Tamil Nidhi would state that the fault is not on the Government but
lies elsewhere.
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C.R.P.No.3493 of 2023
7. I am not going into the merits of the case at this stage. Whether
the fault lies with the 1st defendant or with the defendants 2 to 4 can be
gone into only at the time of Trial. I am dealing with the application for
amendment towards enhancement of compensation. I would agree with
the submission made by Mr.R.Singaravelan that as a child when the suit
was filed, the plaintiff would not have been aware as to the suffering that
he would have undergone and the damage he would have suffered on
account of loss of limb. Only at a later date, on coming to know of that,
he has realised that for the damage that he has suffered. On account of
loss of the limb, he has felt the compensation should be enhanced and so
has sought for enhancement of compensation to Rs.15,00,000/- (Rupees
fifteen lakhs only). The mere fact that he has enhanced the compensation
of Rs.15,00,000/- (Rupees fifteen lakhs only) does not mean he is
automatically entitled to it. It is still up to him to prove the damage that
he has suffered due to the loss of the limb. The cause of action for the
loss of limb arises everyday and every minute as and when he is unable
to use it. Therefore, I am not agreeable with the submission of
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C.R.P.No.3493 of 2023
Mr.K.S.Naveen Balaji that the claim of compensation is barred by time.
The amendment would relate back to the date of presentation of the
plaint. Therefore, I am not accepting the ground to reject the claim of
compensation especially in the claim of medical negligence.
8. The reason given by the learned Trial Judge that the High Court
had permitted amendment of the plaint in A.S.No.1021 of 2007 does not
apply. This Court had allowed the appeal and remanded the matter to the
Trial Judge for a fresh disposal in accordance with law for the purpose of
impleading the 3rd and 4th respondent. In the said scenario, the entire suit
was before the Court and it was not a case of restricted remand by the
High Court. The appellate Court has the power to either restrict the
remand or remand it in full. In this case, the remand is full in order to
implead the respondents 3 and 4 before me and to proceed with the
matter afresh. Therefore, since there is no order of the High Court
granting leave to amend does not imply, it is a bar for the petitioner to
seek for enhancement of the compensation.
9. In fine, CRP.No.3493 of 2023 is allowed. The order passed by
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C.R.P.No.3493 of 2023
the learned Trial Judge in I.A.No.820 of 2012 in O.S.No.230 of 1998,
dated 20.03.2013 is set aside. Leave is granted to the petitioner to amend
the plaint for enhancement of compensation from Rs.5,00,000/- (Rupees
five lakhs only) to Rs.15,00,000/- (Rupees fifteen lakhs only). It is open
to the defendants to raise all pleas and the defences stating that they are
not responsible for the damage caused to the plaintiff.
10. On amendment, if the learned Trial Judge does not have the
pecuniary jurisdiction to deal with the matter, he is directed to send the
suit papers to the Court having the jurisdiction to deal with the same.
Liberty is granted to the petitioner to seek for exemption of Court fees, as
per Order 33 of Code of Civil Procedure.
11. Accordingly, the Civil Revision Petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
20.09.2023
Index:Yes/No
Speaking Order :Yes/No
https://www.mhc.tn.gov.in/judis
C.R.P.No.3493 of 2023
Neutral Citation:Yes/No
MKN2/VEDA
To
The Sub Court,
Kancheepuram.
https://www.mhc.tn.gov.in/judis
C.R.P.No.3493 of 2023
V.LAKSHMINARAYANAN,J.
MKN2/VEDA
C.R.P.No.3493 of 2023
and
CMP.No.21749 of 2023
20.09.2023
https://www.mhc.tn.gov.in/judis
