Partly allowed

Dr. Prafulla B. Desai v. Mr. Padma Chandra Singhi and Ors.

Bombay HC14 Oct 2014APP/703/2011

Case brief

AI extract

What is this about?

A consultant challenged contractual damages for not personally performing surgery. The court held that the pleaded contract was unproved and set aside the damages decree, while retaining the suit costs award. The appeal was partly allowed without appellate costs.

What did the court decide?

Damages and reimbursement decree, including associated interest, set aside; suit costs award retained. Withdrawal of the court deposit barred for eight weeks.

Dr. Prafulla B. Desai Vs Mr. Padma Chandra Singhi and Ors. — Medical Negligence | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.703 OF 2011 IN

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SUIT NO.1101 OF 1989

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Dr. Prafulla B. Desai. .. Appellant (Org. Defendant No.1) Vs Mr. Padam Chandra Singhi and Others. .. Respondents

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Shri Iqbal Chagla, Senior Counsel along with Shri J.P. Avasaia and Ms. Yugandhara Khanwilkar i/by Dastur Dadich & Kalambi for the Appellant.

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Smt. B.P. Jakhade for the Respondent No.1.

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Shri H.H. Halai along with Shri Ajit Sinde and Ms. Rupali Kadam i/by Halai & Co. for the Respondent Nos.2 and 3.

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CORAM : A.S. OKA & A.S.CHANDURKAR, JJ

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DATE ON WHICH SUBMISSIONS WERE HEARD : 14TH AUGUST 2014 DATE ON WHICH JUDGMENT IS PRONOUNCED: 14TH OCTOBER 2014

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( As per Sub-Rule (iii) of Rule 296 of the Bombay High Court (Original Side) Rules, signed Judgment is pronounced by A.S.Oka, J at Bombay as A.S.Chandurkar, J is sitting at the Bench at Nagpur)

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JUDGMENT ( PER A.S. OKA, J )

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. By the administrative order dated 18^th June 2014, the

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Hon'ble Chief Justice has assigned this Appeal to the Division Bench

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presided over by one of us ( A.S. Oka, J ) for final disposal. By this Appeal, the Appellant who is the original first Defendant has taken an exception to the judgment and decree dated 2^nd September 2011 passed by the learned Single Judge of this Court in Suit No.1101 of 1989 filed by the first to third Respondents herein. The fourth to eleventh Respondents are the other Defendants in the said suit.

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The suit was originally filed by the first Respondent and his wife Mrs. Lila Padam Chandra Singhi. During the pendency of the suit, the said Lila Padam Chandra Singhi (for short “the deceased”) expired. The second and third Respondents as well as the first Respondent are the legal representatives of the deceased.

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The case made out in the Plaint in short is that the Appellant who is an Oncologist was Honorary Surgeon attached to the Bombay Hospital at Mumbai and was the head of the Oncology Department in the Bombay Hospital. The fourth Respondent was his Assistant Surgeon. The deceased, who was diagnosed cancer, was admitted in the Bombay Hospital as patient of the Appellant. It is alleged that there was a contract between the Appellant as 'Doctor' and the deceased as his 'Patient'. The allegation in short is that in breach of the said contract, the Appellant did not remain present at the time of Exploratory Laparotomy on the deceased and he delegated the

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said duty to the fourth Respondent(Dr.A.K.Mukherjee). Damages were claimed in the suit on account of breach of contract. The second allegation was that there was a negligence on the part of the Appellant and the fourth Respondent in conducting the Exploratory Laparotomy on the deceased. The learned Single Judge by the impugned judgment and decree negatived the allegation of the negligence against the Appellant and the fourth Respondent. However, the learned Single Judge did not accept the case of the Appellant that the deceased was a patient of the fourth Respondent and that the Appellant was merely called upon to examine the deceased and advise. The learned Single Judge held that there was an agreement between the first Respondent and the deceased on one hand and the Appellant on the other hand. The learned Single Judge proceeded to grant compensation of Rs.42,375/- being reimbursement of the amount paid by the first Respondent to the Bombay Hospital, Rs. 38,880/- being reimbursement of the Nursing Charges and Rs.15 lakhs for mental agony, distress and anguish caused to the first Respondent and the deceased on account of breach of contract by the Appellant. Interest at the rate of 16% per annum on the said three amounts was made payable from the date of surgery till the date of the impugned judgment and decree and thereafter, at the rate of 6% per annum till the date of payment or realization. The learned Single Judge directed the Appellant to pay costs of Rs.1 lakh to the first to third Respondents.

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The claim made in the suit was for grant of compensation of Rs.23,75,000/- with interest at the rate of 18% per annum from the date of filing of the suit. We must note here that during the course of hearing of this Appeal, the learned counsel appearing for the first Respondent as well as the learned counsel appearing for the second and third Respondents made a categorical statement before the Court that the said Respondents have not challenged the impugned judgment and decree and that they do not desire to challenge the finding recorded by the learned Single Judge against the said Respondents on the issue of negligence.

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FACTS OF THE CASE AS SET OUT IN THE PLEADINGS

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With a view to appreciate the submissions made by the learned counsel representing the parties, it is necessary to make a reference to the material facts of the case. It appears that the suit as originally framed was based on the allegations of professional negligence against the Appellant and the fourth Respondent (the original second Defendant). By an amendment, a case was made out as regards the existence of a contract between the Appellant and the original Plaintiffs.

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The Plaint proceeds on the footing that the Appellant/original first Defendant was the head of the Oncology Department of the Bombay Hospital at Mumbai. It is alleged that the fourth Respondent/Original second Defendant was the Honorary Assistant Surgeon who was at the relevant time assisting the Appellant. The original third Defendant Dr. Inder Talwar (Fifth Respondent) was stated to be in chargee of the C.T. Scan Department of the Bombay Hospital. The sixth to eleventh Respondents were impleaded in the suit as the fourth to Ninth Defendants in their capacity as the Trustees of the Bombay Hospital.

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The case made out in the Plaint is that the deceased was suffering from Cancer since July 1977. She was under the treatment of Dr. J.C. Paymaster and the fourth Respondent upto the year 1988. She was earlier treated in Bombay Hospital. It is alleged that the deceased was given Chemotherapy for Lung Cancer in July 1984.

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In the years 1985 and 1987, the first Respondent took the deceased to New York in the Unites States of America (USA) for treatment. It is stated that in November 1987, she was admitted to Doctors' Hospital in New York for about 12 days. The Doctors attached to the said Hospital declared her case to be an inoperable case of Cancer and advised her to undergo Hormonal Therapy.

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After coming back to Bombay, the deceased was being treated by the fourth Respondent as per the advice of Dr. Greenberg from USA. On 8^th December 1987, the fourth Respondent had advised the first Respondent and the deceased that as the deceased was having vaginal bleeding, she should be immediately hospitalized.

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The specific case of the Plaintiffs is that the deceased was admitted as an in-door patient in First Class (MRC) in Bombay Hospital on 9^th December 1987 and that she was put under the care and control of the Appellant who was the head of the Oncology Department in the Bombay Hospital. The case made out in the Plaint is that the Appellant was to charge separately towards his fees and that his Assistants would assist him in treating the deceased.

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It is alleged that as the first Respondent being an IAS Officer and an employee of the Government of Rajasthan informed the Bombay Hospital that all the bills issued should be sent to the Government of Rajasthan and the Bombay Hospital will receive direct payments from the said Government. On the request made by the staff of the Bombay Hospital, the first Respondent obtained and submitted necessary letter of commitment of the Government of Rajasthan to the hospital Authorities. It is alleged that it was expressly

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agreed between the Bombay Hospital on one hand and the first Respondent and the deceased on the other hand that the deceased would be rendered all necessary treatment with due care at the said Hospital. It is specifically alleged in the Plaint that a valid contract was entered into between the Bombay Hospital represented by its Manager Mr. G.P. Sharma on one hand and the first Respondent and the deceased on the other.

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It is the case of the first to third Respondents that after the deceased was admitted to Bombay Hospital on 9^th December 1987, the Appellant examined the deceased on 17^th December 1987 and advised her to undergo Exploratory Laparotomy. Various investigations and tests were conducted as per the instructions of the Appellant. It is alleged that it was agreed between the Appellant on one hand and the first Respondent and the deceased on the other hand that the Appellant would himself operate upon the deceased. It is stated that the date of surgery was fixed as 22^nd December 1987 as per the convenience of the Appellant as he was to perform another surgery on the same day in the Bombay Hospital. The case made out in the Plaint is that it was agreed that the Appellant would himself perform surgery upon the deceased as the Government of Rajasthan had agreed to pay the fees of the Appellant as per the schedule rate fixed in that behalf by the Bombay Hospital. It is alleged that the consent of the deceased to operate was

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obtained by the Appellant. It is alleged that but for the express understanding between the Appellant on one hand and the first Respondent and the deceased on the other hand, the deceased would not have given consent to undergo a surgery in Bombay Hospital. It is alleged that the original Plaintiffs had agreed to pay the fees of the Appellant as a consideration and the Appellant had agreed to perform the surgery. It is stated that the consent was given on 17^th December 1987 in the name of the Appellant.

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The case of breach made out in the Plaint is that notwithstanding the agreement, the Appellant failed to operate himself upon the deceased. It is stated that the performance of the surgery was left to the fourth Respondent. It is alleged that though the Doctors in USA had advised that the case of the deceased was inoperable, the Appellant showed non-application of mind by advising Exploratory surgery. He did not disclose to the first Respondent and the deceased the risks involved in the surgery. It is alleged that the Appellant failed and neglected to provide post operative care and treatment. It is alleged that the Appellant illegally delegated the authority to operate upon the deceased to the fourth Respondent. It is alleged that not only that the Appellant failed to perform his duty but he went to the extent of claiming that the deceased was not his patient.

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The first to third Respondents are relying upon the advise given by the Appellant when he examined the deceased on 17^th December 1987 in Room No.1005 (MRC) along with Dr. Maniyar. According to them, the Appellant advised the deceased to undergo a surgery for removal of uterus. It is stated that on the case papers, he made an endorsement regarding performing exploratory surgery. It is alleged that notwithstanding the advise of the Doctors in USA, the Appellant told the first Respondent and the deceased that he knew his job and he would himself perform the surgery on 22^nd December 1987.

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It is alleged in the Plaint that on 22^nd December 1987, the Appellant was to perform another surgery in Bombay Hospital. While he was performing the said surgery, the deceased was brought to the adjoining operation theatre. Under the instructions of the Appellant, the fourth Respondent and Dr. Maniyar opened the abdomen of the deceased and found that her case was inoperable. It is alleged that though Dr. Maniyar rushed to the Appellant to call him, the Appellant made some inquiry as regards the condition of the abdomen of the deceased and advised the fourth Respondent to close the abdomen. It is alleged that notwithstanding the request, the Appellant did not even enter the operation theatre to see the condition of the deceased. It is alleged that even after the surgery, the Appellant never attended the deceased.

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It is alleged that the record of the Bombay High Court was tampered with removing the entries which showed that the deceased was admitted as the patient of the Appellant.

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It is stated that as a result of the surgery, the deceased developed intestinal fistula and suffered mental agony and anguish. On 5^th April 1988, she was taken to Jaipur and she remained under the treatment of the eminent Doctors at Jaipur. Unfortunately, she died on 25^th February 1989.

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In Paragraph 13A of the Plaint, the condition of the

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deceased after she suffered from fistula has been set out. It is alleged that the deceased was continuously crying day and night due to pain and suffering.

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The compensation was claimed as under in paragraph 14 of

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the Plaint:

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“14. In the circumstances, the Plaintiffs are first entitled to a decree against the Defendants jointly, severally or in the alternative in the sum of Rs.27,75,000/- as follows:

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(i) Rs.2,85,000/- as and by way of expenses of the plaintiffs for hospitalization, Doctors fees, other medical and ancillary expense of the hospital, stay in Bombay and travelling to and from the plaintiff residence in Jaipur.

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(ii) Rs.16,00,000/- as and by way of General Damages for the mental agony and anguish suffered by the Plaintiffs and/or suffered by the first Plaintiff and/or the second Plaintiff.

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(iii) A sum of Rs.1,90,000/- as and by way of expenses incurred by the Plaintiff towards the Doctors' fees, other medical and ancillary expenses from the date of the suit until the death of the Original 2^nd Plaintiff.

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(iv) Rs.3,00,000/- as and by way of damages for the mental agony and anguish suffered by the Plaintiff from the date of the suit till the death of the Original 2^nd Plaintiff”.

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A prayer was made in the suit for passing a decree jointly and severally against all the Defendants in the sum of Rs.23,75,000/with interest thereon.

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The Appellant filed Written Statement as well as additional Written Statement. In the Written Statement, the Appellant has stated that the deceased was never admitted to the Bombay Hospital under his care as his patient. He has contended that he was not aware that the deceased was admitted as his patient till January 1988 when the Chairman of the Bombay Hospital informed him about the complaint received from the first Respondent. He contended that the deceased was at all times treated by the fourth Respondent Dr. A.K. Mukherjee and that all the tests were conducted under the advise of the fourth Respondent. He stated that on 17^th December 1987 on the express

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request made by the fourth Respondent, he examined the deceased as a Consultant only for the purposes of giving an opinion. He stated that he recorded his opinion to do an exploratory surgery with a view to ascertain whether it was possible to remove the “mass” which was causing vaginal bleeding. The Appellant has denied that he had any extensive discussion or otherwise with the first Respondent and the deceased. He stated that he does not recollect of seeing the papers or reports of the treatment given to the deceased in USA. He has emphatically denied that he insisted either orally or otherwise that the deceased should go for a surgery of removal of uterus. He denied that he had undertaken at any time to himself perform the surgery with the assistance of the fourth Respondent and Dr. Maniyar. He denied that the surgery was performed under his instructions. He stated that he never received any request from any person to attend the deceased whilst she was in the operation theatre or at any time prior thereto or thereafter, except on 17^th December 1987. He has stated that the professional ethics prevented him from attending the deceased unless the patient was transferred to him by the fourth Respondent. He stated that on the date of surgery, after he completed his own surgery when he was on the way out of operation theatre no. 1, in the corridor adjacent to the operation theatre, the fourth Respondent met him and informed him that everything inside the abdomen of the deceased was plastered and there was ascites fluid. On hearing this, he suggested to

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the fourth Respondent to close the abdomen. The Appellant contended that the fourth Respondent was competent and capable of handling such surgery independently and in fact he did the same in the case of the deceased. He has stated that there was no reason for him to doubt the observation of the fourth Respondent about the medical condition of the deceased. He stated that plastering is a situation which is not conducive for any further surgery and, therefore, he advised the fourth Respondent to close the abdomen. The case of the Appellant is that as the deceased was not his patient, there was no question of attending her on 22^nd December 1987 or subsequently .

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The contention of the Appellant is that the original Plaintiffs are trying to take undue advantage of the procedure followed by the Bombay Hospital of entering the Senior Doctors' name on the patient's record, whether or not, the patient is admitted or is being attended to by the Senior Doctors. The Appellant relied upon the letter dated 12^th February 1988 addressed by him to the Chairman of the Bombay Hospital. By the said letter, he requested the Chairman not to admit the patients in his name when actually the patients are of other Doctors like the fourth Respondent. Thus, in short, his contention is that he never admitted the deceased to the Bombay Hospital and the deceased was never his patient. His contention is that at the instance of the fourth Respondent, he examined the deceased as a Consultant

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and recorded his opinion that the exploratory surgery needs to be done. His contention is that he never agreed to perform the surgery.

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The Appellant filed the additional Written Statement dealing with the additional paragraphs incorporated by way of amendment. He denied the case made out by way of amendment that he had agreed to perform surgery on the deceased and accordingly, the surgery was scheduled on a date convenient to him. He reiterated that the deceased was never his patient.

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The fourth Respondent filed the Written Statement contending that he was working only as an Assistant of the Appellant and he has acted with the due diligence and care under the supervision of the Appellant. He contended that he was not concerned with the case of the deceased as is clear from the admission note dated 9^th December 1997. He stated that the deceased and the first Respondent had consented for admission and treatment under the care of the Appellant. He stated that on 28^th November 1987, he was called by the original Plaintiffs at the residence of their daughter at Santacruz. The fourth Respondent stated that the deceased was an old patient of Bombay hospital and was treated since 1977 by Dr. Paymaster. He stated that as he was an Assistant to Dr. Paymaster, he examined the deceased and started treatment prescribed by Dr. Greenberg from USA.

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He stated that when vaginal bleeding started, he recommended for hospitalization of the deceased and, accordingly, the first Respondent admitted the deceased on 9^th December 1987 in Room No.1005 (MRC) of Bombay Hospital by approaching Shri G.P. Sharma, Manager of the Bombay Hospital as a First Class Patient under the Appellant. He stated that they had instructed the first Respondent to go to the Tata Memorial Hospital and show the deceased to the Appellant. His contention is that he received the fees equivalent to 1/3^rd of the fees payable to the Appellant. He stated that on 17^th December 1987, the Appellant examined the deceased and had a detailed discussion with the deceased and her relatives and he advised removal of uterus. He has stated that he informed the Appellant about the complicated nature of the case and requested him to operate. He stated that even Dr. Maniyar talked to the Appellant. His contention is that the Appellant suggested him to fix the surgery on 22^nd December 1987 when he already had one surgery fixed on that day. The fourth Respondent stated that he met the Appellant personally and informed him about the complicated nature of the case. He stated that the Appellant directed him to take help of Dr. Hegde in the surgery. He stated that he informed the Appellant that the first Respondent and the deceased wanted him to perform the surgery. He stated that as per the instructions of the Appellant, he took up the case of the deceased in the second operation theatre when he was accompanied by Dr. Maniyar. He

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stated that he opened the case on epidural anesthesia and Dr. Rashmi Kotak was the Anesthesiologist. He stated that after the abdomen was opened, he found adhesions and scites all over. He, therefore, instructed Dr. Maniyar to call the Appellant from the Operation Theatre No.1 where he was operating on another patient. However, the Appellant did not turn up. Thereafter, the fourth Respondent personally went to the corridor outside the operation theatre and requested the Appellant to come and see the deceased. He informed the Appellant that everything inside the abdomen was totally plastered. The Appellant asked the fourth Respondent to close abdomen of the deceased but he did not enter the Operation Theatre where the deceased was being operated upon. His contention is that the operation was performed under the instructions of the Appellant and he received only a sum of Rs.1,200/- as fees. Thus, in short, his contention is that the patient was of the Appellant and he was acting on the instructions of the Appellant as his Assistant.

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There is a Written Statement and additional Written Statement filed on behalf of the other Defendants who were impleaded as the Trustees of the Bombay Hospital. They denied that there was a contract between the Bombay Hospital and the original Plaintiffs. It is contended that the Bombay Hospital admits the patients only if they are recommended for admission by a Doctor on the panel of Honorary

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Doctors. Their contention is that the patients are admitted as the patients of a particular Doctor and the treatment is administered as per the advice of that particular Doctor. In the Written Statement, it is stated that as per the Hospital record, the deceased was admitted on 9^th December 1987. The record mentions the name of the Appellant as an Honorary. The said Defendants denied the claim in the suit.

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THE ISSUES, THE FINDINGDS THEREON AND THE OPERATIVE PART OF THE DECREE

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The issues were framed by the learned Single Judge (Shri N. Arumugham, J ) on 12^th November 1997. The first Respondent examined himself. The first to third Respondents examined the second witness Shri Amarcahnd R. Sharma. They examined Shri Amar Bahadur Singh as the third witness. They examined Dr. Ashok Mehta as their next witness. He was examined on the issue of negligence. They also examined Ms. Urmila Soni, a Nurse employed at Jaipur. The Appellant examined himself. He also examined Dr. Rashmi Dilip Raja as his witness. The fourth Respondent Dr.Mukherjee did not step into witness box.

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The issues framed by the learned Single Judge and the findings recorded by the learned Single Judge in the impugned judgment and decree on the said issues are as under :

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Sr. No	ISSUES		FINDINGS
1	Whether there was contract entered between the defendant and 2 with the plai regarding the treat given to the 2^nd plaintiff.	any into nos.1 ntiffs ment	Yes. There was a contract between the original Plaintiffs and Defendant No.1.
2	Whether there was any performance and negli on the part of the defe nos.1 and 2 in condu the surgery on the dece plaintiff.	mis- gence ndant cting ased-	No – there was no negligence in tort.
3	Whether the plaintiffs entitled to claim damages from defendants.	are any the	Yes – for breach of contract.
4	Whether the suit sustainable in law again the defendants.	is st all	Yes.
5	Whether there was any of action for the suit filed against the defenda	cause to be nts.	Yes
6	Whether the defendant to 13 are liable to pa suit claim. If so, to extent.	nos.4 y the what	No.
7	Whether the defendant is a proper and nece partyto the suit.	no.3 ssary	Does not arise.
8	Whether the defendant to 13 are vicariously for the suit claim.	nos.4 liable	No.
9	To what reliefs, if any, theplaintiffs are entitled	which to?	As per final order

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The operative part of the impugned decree reads thus:

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“1. Reimbursement of all amounts paid under the bills Exhibits L & K (colly) aggregating to Rs.42375/with interest @ 16% p.a. thereon from the date of the

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Surgery of the original Plaintiff No.2 till the date of this Judgment and thereafter @ 6% p.a. till payment or realization.

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Reimbursement of the nursing charges of Rs.38880/- of the Nurse, PW 5 with interest also @ 16% p.a. thereon from the date of the Surgery of the original Plaintiff No.2 till the date of this Judgment and thereafter @ 6% p.a. till payment of realization.

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Rs.15 lakhs for mental agony, distress & anguish caused to the original Plaintiffs by the breach by nonperformance of the contract by Defendant No.1 interest @ 16% p.a. Thereon from the date of the surgery of the original Plaintiff No.2 till the date of this Judgment and thereafter @ 6% p.a. Till payment or realization.

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4. Costs of this suit fixed at Rs.1 lakh.

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Mr. Doctor on behalf of Defendant No.1, applies for stay of this Judgment and order. Simplicitor stay of the decree cannot be granted under Order 41 Rule 5(2)(3)(c) unless security for due performance of the decree and judgment is given by the Defendant No.1. Hence, the application is rejected.”

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PROSECUTION OF THE APPELLANT AT THE INSTANCE OF THE ORIGINAL PLAINTIFFS

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Before we make a reference to the submissions made by the

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learned counsel appearing for the parties, we must note here that the Appellant was prosecuted for the offence punishable under Section 338 read with Section 109 of the Indian Penal Code. The Appellant was convicted by the Court of the learned Additional Chief Metropolitan Magistrate, Mumbai. The conviction and sentence of the Appellant was confirmed by the Sessions Court as well as this Court. The prosecution was on the basis of the Complaint filed by the first Respondent. The

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Appellant filed Criminal Appeal No.1432 of 2013 before the Apex Court. By the judgment and order dated 13^th September 2013, the order of conviction and sentence of the Appellant was set aside. However, the Apex Court recorded a finding that the conduct of the Appellant constitutes breach professional ethics for which he is already penalized by the Medical Council. It was observed that there was a negligence on his part which amounts to actionable wrong in tort. The Apex Court held that the opening of the abdomen of the deceased by the fourth Respondent Dr. A.K. Mukherjee and not by the Appellant did not make any difference. The Apex Court held that the death could have occurred irrespective of the fact whether the abdomen was opened by the fourth Respondent or by the Appellant himself. The Apex Court observed that the omission of the Appellant in not rendering complete duty to the patient and not performing the operation himself has made no difference and it is not the cause of the death of the deceased.

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DISCIPLINARY PROCEEDINGS BEFORE THE MAHARASHTRA MEDICAL COUNCIL

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On the same subject, a complaint was filed against the Appellant before the Maharashtra Medical Council. By order dated 11^th February 1991, the Complaint was disposed of by directing that a warning be issued to the Appellant. It was observed that the Appellant was expected to inquire on his own about the progress of the operation

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when it was adviced by him. It was observed that he ought to have taken more interest and personally seen the position faced by Dr. Mukherjee which he did not do. The said order has become final.

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SUBMISSIONS OF THE LEARNED COUNSEL

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The learned Senior Counsel appearing for the Appellant has taken us through the material portions of the pleadings and oral as well as documentary evidence. He also invited the attention of the Court to the material findings recorded by the learned Single Judge. According to the learned Senior Counsel, the case made out in the amended Plaint is that there was a contract arrived at on 9^th December 1987 between the Bombay Hospital on one hand and the first Respondent and the deceased on the other hand. He submitted that according to the case made out in the Plaint, it is pleaded that on 17^th December 1987, the contract with the Appellant came into existence. According to the learned senior counsel, the contract between the Appellant and the original Plaintiffs as pleaded is that in consideration of the fees charged by the Appellant, he would render medical treatment and perform surgery on the deceased on 22^nd December 1987. Rendering of post operative treatment was allegedly a part of the contract. His submission is that what is pleaded is an express contract. He invited the attention of the Court to the letter dated 19^th February 1988

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addressed by the first Respondent to the fourth Respondent which records that the fourth Respondent requested the Appellant to do the operation or at least be available at the time of operation. His submission is that according to the case made out in the Plaint the contract with the Appellant came into existence on 17^th December 1987. Therefore, he urged that the evidence relating to any event taken place prior to 17^th December 1987 would not be relevant. He contended that it is not the case made out in the Plaint that the Bombay Hospital entered into a contract on behalf of the Appellant. He invited the attention of the Court to the evidence of Dr. Rashmi Raja( Nee Rashmi Kotak), an Anaesthetist, who was examined by the Appellant. His submission is that the evidence Dr. Rashmi Raja and other evidence on record shows that the fourth Respondent scheduled the surgery on 22^nd December 1987 and as an operating Surgeon, he arranged for the presence of Dr. Raja as Anaesthetist. The learned senior counsel appearing for the Appellant pointed out that Dr. Rashmi Raja deposed that on the earlier day, the fourth Respondent discussed the case with her and stated that he would be operating on the patient. His submission is that the evidence on record shows that the fourth Respondent never sought help of the Appellant and only his opinion was sought which was promptly given by the Appellant. His submission is that the consent in writing signed by the original Plaintiffs was not a consent for surgery by a particular Surgeon by name. He

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pointed out that the finding recorded by the learned Single Judge is not as regards the existence of the express contract but the finding is regarding the existence of an implied contract for which there is no pleading.

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He invited the attention of the Court to the decree passed for damages. He urged that though the first Respondent received reimbursement from the Government of Rajasthan of the bills raised by the Bombay Hospital, a decree has been passed even in relation to the said bills. He pointed out that though in the bill raised by the Bombay Hospital, the fees payable to the Appellant in the sum of Rs.5,000/- was shown, later on, the bill was modified and the said amount was deleted. He pointed out that the Bombay Hospital did not receive the amount of Rs.5000/- and in any case, the Appellant did not receive the said amount.

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He pointed out that erroneously the Bombay Hospital included the charge of Rs.5,000/- payable to the Appellant in the bill. Later on, the bill was corrected and the said charge was deleted. He pointed out that the bill payable as per the corrected bill was paid by the Rajasthan Government. He pointed out that the Appellant did not receive any fees for consultation. He pointed out that according to the case of the first to third Respondents, the fourth Respondent Dr.

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Mukherjee performed the surgery to their satisfaction. In fact, the first Respondent praised Dr. Mukherjee, the fourth Respondent for his performance. He pointed out that the first to third Respondents have made no claim against the fourth Respondent. He pointed out that the fourth Respondent has not stepped into witness box.

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The learned Senior Counsel appearing for the Appellant submitted that the deceased suffered from fistula as a result of nick in the intestine of the deceased which occurred in the course of operation . He submitted that the Appellant was not responsible for the fistula which ultimately healed. He urged that ultimately the deceased died 13 months after the surgery due to advanced cancer. He urged that there is no causation for the claim for damages made by the first to third Respondents on account of breach of the alleged contract. He urged that even assuming that there was a breach of contract, the damages granted by the learned judge do not satisfy the test of Section 73 of the Contract Act.

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The learned Senior Counsel appearing for the Appellant submitted that the evidence on record shows that the deceased was always a patient of the fourth Respondent Dr. Mukherjee and the Appellant was requested by Dr. Mukherjee to see the patient and advice. He urged that the Appellant advised exploratory surgery to ascertain

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whether a surgery is possible to remove the tissues which were causing bleeding. He urged that there is nothing on record to show that the Appellant was head of the Oncology Department of the Bombay Hospital. He urged that the fourth Respondent Dr. Mukherjee was a competent Surgeon and when he informed the Appellant about the condition of the deceased after opening of her abdomen, the Appellant advised closure of abdomen of the deceased. The learned Senior Counsel appearing for the Appellant placed on record the judgment and order dated 13^th September 2013 passed by the Apex Court in the Criminal Appeal No.1432 of 2013 by which the order of conviction of the Appellant was set aside. He submitted that though there are certain findings recorded by the Apex Court, the said findings are not binding on this Court in an Appeal arising out of a Civil Suit. He placed reliance on the decision of the Apex Court in the case of Anil Behari Ghosh v. Smt. Latika Bala Dassi and Others¹ . He urged that even the finding recorded by the Maharashtra Medical Council has no bearing or relevance at all while deciding the Civil Suit. He also relied upon the decision of the Apex Court in the case of Adi Pherozshah Gandhi v. H.M. Sirvai, Advocate General of Maharashtra, Bombay² .

¶147

The learned counsel appearing for the first Respondent submitted that there is a clinching evidence of a valid contract between

¶148

1 AIR 1955 SC 566

¶149

2 (1970)2 SCC 484

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the Appellant on one hand and the first Respondent and the deceased on the other hand. She pointed out that the deceased was admitted in a room in the name of the Appellant and even the name of the deceased appearing on the room disclosed that she was a patient of the Appellant. Her submission is that though the deceased was the patient of the Appellant, when the fourth Respondent Dr.Mukherjee informed about the condition of the deceased after opening of abdomen, he did not bother even to enter the operation theatre to actually see her condition. She pointed out that the case of the express contract was established by the original Plaintiffs. She stated that the Bombay hospital charged the fees of Rs.5,000/- payable to the Appellant in the bill. He pointed out that no evidence has been adduced by the Appellant to show that he did not receive the sum of Rs.5,000/-. Her submission is that the Appellant came out with a false case that the deceased was never his patient. She pointed out that as per the schedule fixed by the Bombay Hospital, the fourth Respondent Dr. Mukherjee was paid Rs.1,667/- for surgery which is equivalent to 1/3^rd of the fees of Rs.5,000/- payable to the senior Surgeon. Her submission is that the exploratory surgery resulted in causing fistula to the deceased which caused enormous pain and suffering to her. She submitted that the consent given by the deceased for undergoing the surgery was on condition that the Appellant would himself perform the surgery. She pointed out that the Apex Court in the Criminal Appeal

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No.1432 of 2013 clearly held that there was a relationship as Doctor and patient between the Appellant and the deceased. She pointed out the finding recorded by the Maharashtra Medical Council against the Appellant on the basis which a warning was ordered to be issued to the Appellant. She pointed out that the said finding has become final.

¶158

She submitted that the damages have been granted by the learned Single Judge in accordance with Section 73 of the Indian Contract Act, 1972. In the written submissions, the learned counsel appearing for the first Respondent urged that though the first Respondent was advised by her to challenge the finding recorded by the learned Single Judge on the issue on negligence, considering his advance age, the first Respondent did not challenge the said finding though the Apex Court has held in his favour on the said issue. She urged that the judgment of the Apex Court can be treated as an evidence before this Court. She urged that the case of breach of contract has been established. The learned counsel appearing for the second and third Respondents generally adopted submissions made by the learned counsel appearing for the first Respondent. He pointed out the correspondence made by the Bombay Hospital with the Rajasthan Government. He pointed out that repeatedly the Bombay Hospital issued letters to Rajasthan Government demanding the bill amounts which included the sum of Rs.5,000/- payable to the Appellant. He

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urged that the Bombay Hospital manipulated the record which is apparent from the register of the operation theatre with a view to help the Appellant. He invited our attention to the original bill dated 31^st December 1987 issued by the Bombay Hospital in which a sum of Rs.5,000/- has been clearly claimed on account of fees payable to the Appellant. He urged that there is a concluded finding recorded against the Appellant by the Maharashtra Medical Council regarding the failure to perform his duty. He urged that even the Apex Court has recorded the same finding. His submission is that the entire bill was not paid by the Rajasthan Government. He accepted that the second and third Respondents have not instructed him to challenge the finding of the learned Single Judge on the issue of negligence. He submitted that no interference is called for in this Appeal.

¶163

POINTS FOR CONSIDERATION

¶164

We have given careful consideration to the submissions. Mainly three questions arise in this Appeal.

¶165

(i) Whether the first to third Respondents have established the contract between the Appellant on one hand and the first Respondent and the deceased on the other hand as alleged in the Plaint?

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(ii)(A) Whether the deceased was the patient of the

¶170

Appellant?

¶171

(ii)(B) If the answer to above question is in the affirmative, what were the obligations of the Appellant toward the deceased?

¶172

(iii) Whether the Respondents are entitled to damages on account of breach of the alleged contract by the Appellant ?

¶173

CONSIDERATION OF SUBMISSIONS

¶174

We have perused the pleadings, notes of evidence, the exhibited documents and the findings recorded in the impugned Judgment. From the judgment of the learned Single Judge and in particular, the finding recorded in Paragraph 93, it appears that the learned Single Judge has come to the conclusion that there was an implied contract under which the Appellant had agreed to be around when the exploratory surgery was performed on the deceased. The learned Single Judge has relied upon the record of the Bombay Hospital which shows that the deceased was admitted in the name of the Appellant. The learned Single Judge urged that the oral evidence of the Appellant which is contrary to the record of the Hospital was not

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admissible in view of Section 91 of the Indian Evidence act, 1972. It is not necessary for us to record detailed reasons for coming to the conclusion that Section 91 of the Indian Evidence Act, 1972 cannot have application as it is apparent on the plain reading of the section. Though the learned Single Judge has come to the conclusion that the fact that there is an implied contract, it is very clear from the discussion in the judgment and in particular Paragraph 92 thereof that the learned Single Judge has rejected the argument of the Appellant that the first to third Respondents have not pleaded the existence of the implied contract. The learned Judge came to the conclusion that it is not necessary to plead the existence of implied contract as only the evidence can show what type of contract was entered into between the parties. The learned Single Judge observed that there is a difference between the pleadings and the evidence and to decide as to what is the type of contract, only the evidence is material. With greatest respect, we do not agree with the said proposition. What is specifically pleaded in the plaint is the existence of an express contract. It is true that the evidence need not be pleaded, but nevertheless the material particulars and the nature of the contract have to be specifically pleaded.

¶179

As far as the allegation of non-application of mind and the alleged negligence in giving an opinion to undergo surgery is concerned, the learned Single Judge has answered the issue of

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negligence against the original Plaintiffs. The learned Single Judge held that the Appellant was entitled to give his own opinion when he was consulted. The opinion may be correct or erroneous. The learned Single Judge observed in Paragraph 152 of the judgment that the opinion was given by the Appellant as a professional to carry out the procedure then medically available as a last resort. This finding of the learned Single Judge is not subjected to any challenge by the first to third Respondents.

¶184

It will be necessary to make a reference to the material averments in the Plaint as regards the alleged contract. In Paragraph 5A of the Plaint, it is alleged that on 8^th December 1987, the fourth Respondent Dr. Mukherjee advised the first Respondent and the deceased that the deceased should be hospitalized as she was suffering from vaginal bleeding. In Clause (b) of paragraph 5A of the Plaint, it is alleged that the deceased was admitted as an Indoor Patient in first class under the care and control of the Appellant. The specific pleading in Paragraph 5C is that a valid contract was entered into between the Bombay Hospital represented by its Manager Shri G.P. Sharma on one hand and the deceased and the first Respondent on the other hand whereby the Bombay Hospital had agreed to render all necessary medical services to the deceased. The second agreement pleaded is between the Appellant on one hand and the deceased and the first

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Respondent on the other hand to the effect that the Appellant would himself operate upon the deceased. It is alleged that as per his convenience, the 22^nd December 1987 was fixed as the date of surgery. On that day, the Appellant was to perform another surgery in the Bombay Hospital. It is alleged that the deceased and the first Respondent had a specific understanding with the Appellant that as the Rajasthan Government had agreed to pay his fees as per the schedule rate fixed by the Bombay Hospital, in consideration of the amount to be paid, the Appellant would himself operate and take care of the deceased. It is alleged that on 17^th December 1987, the deceased gave consent to operate in the name of the Appellant.

¶189

The case made out in Paragraph 5F of the Plaint is that in breach of the understanding, the Appellant failed and neglected to operate upon the deceased and thus committed a breach of contract.

¶190

In Paragraph 5G of the Plaint, it is alleged that the Appellant has not taken proper care and has failed to apply his mind by advising the deceased to undergo surgery of removal of uterus notwithstanding the contrary opinion of the eminent Doctors from USA. It is alleged that the Appellant did not disclose the risk involved in the surgery.

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As far as the breach of the contract is concerned, the allegation is that the Appellant committed breach by not performing the surgery himself and by not providing the post operative care and treatment. The case made out in the Plaint is that on 17^th December 1987 when the Appellant for the first time examined the deceased in her room, he advised her to undergo surgery of removal of uterus.

¶195

As far as the stand taken by the Appellant is concerned, his case is that the deceased was never his patient and on the request made by the fourth Respondent Dr. Mukherjee, he examined the deceased on 17^th December 1987 and advised her to undergo exploratory surgery to determine whether it is possible to remove the mass which was causing the vaginal bleeding. In the Written Statement, he has denied that he had agreed to remain available to the fourth Respondent Dr. Mukherjee at the time of surgery on the deceased. His case is that after completing his surgery when he was coming out of operation theatre no.1, in the corridor outside the operation theatre, the fourth Respondent Dr. Mukherjee informed him that everything inside the abdomen was plastered and there was ascites fluid. He advised the fourth Respondent Dr. Mukherjee to close the abdomen. His specific case in the Additional Written Statement is that he was called only for the consultation and he was not to perform any surgery. He has reiterated that the deceased was never his patient.

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The stand taken by the fourth Respondent Dr. Mukherjee is that in fact he had advised the deceased to go to Tata Memorial Hospital to consult the Appellant. However, the deceased and the first Respondent met Shri Sharma of Bombay Hospital and took admission under the name and care of the Appellant. The fourth Respondent Dr. Mukherjee claimed that he did not admit any of his cases under care and control of the Appellant though he used to admit his cases in the Bombay Hospital in the name of Dr. Paymaster even after the retirement of Dr. Paymaster. He claimed that on 17^th December 1987, the Appellant advised the deceased to remove of her uterus. The case of the fourth Respondent is that as per the instructions of the Appellant, he took up the case of the deceased in Operation Theatre No.2 when he was accompanied by Dr. Maniyar. He admitted that Dr. Rashmi Kotak was the Anesthesiologist. His case is that after the abdomen was opened, he found lot of adhesion and ascites all over and therefore, he send Dr. Maniyar to call the Appellant who was in Operation Theatre No.1. He stated that though the Appellant was free, he did not turn up. Therefore, he himself went out of the Operation Theatre and talked to the Appellant and informed him that everything inside the abdomen was totally plastered. At that time, the Appellant advised the fourth Respondent to close the abdomen of the deceased. He stated that the Appellant did not enter the Operation Theatre. However, neither Dr.

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Mukherjee stepped into the witness box on his own nor the first to third Respondents tried to examine him as their witness though he supported them in the Pleadings.

¶204

Considering the pleadings, it will be necessary to go to the oral and documentary evidence. We must note here that the evidence of the witness Dr. Ashok Mehta examined by the first to third Respondents is on the allegations of negligence against the Appellant. As the finding on the said issue is against the first to third Respondents which is not challenged, we are not referring to his evidence.

¶205

It will be necessary to make a reference to the oral testimony of the first Respondent. He has stated that he had taken the deceased to USA for medical treatment. After he came back, he consulted the fourth Respondent Dr. Mukherjee. It will be necessary to make a reference to the material portion of his examination-in-chief which reads thus:

¶206

“Thereafter Dr. Mukherjee from Bombay Hospital had advised me to get certain tests done and accordingly I got those tests done from Breach Candy Hospital. After those tests were taken, I started treatment as prescribed by Dr. Greenberg from 6^th December, 1987. On the very next day i.e. 7^th December 1987 she started vaginal bleeding. On 8^th December 1987 Dr. Mukherjee was called to my residence and he advised me to hospitalise my wife. On 8^th December 1987 I took the note given by Dr. Mukherjee to Bombay Hospital to get my wife admitted and I met Mr. G.P.

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Sharma, the Manager in-charge of the admission. I wanted my wife to be treated by only Dr. P.B. Desai as I had come from America with advice that no operation was possible and I therefore wanted the best Doctor and according to me Dr. Desai was the best Doctor in Bombay. Shri Sharma on hearing my woeful story advised me to come next day morning. She was admitted under Dr. P.B. Desai in Bombay Hospital on the note given by Mr. Sharma. My wife was admitted under Dr. Desai in Room No.1005 Ist Class”.

¶211

“On 9^th December when I had brought her to Bombay Hospital she was not bleeding and it was recorded in the records of Bombay Hospital. Thereafter Dr. Mukherjee came to see my wife. I had told him to contact Dr. Desai and Dr. Mukherjee told me that Dr. Desai is not available and till he comes all the normal tests can be conducted. Accordingly all the normal tests were completed. Dr. Mukherjee had told me on 10^th or 11^th December 1987 that on the advice of Dr. Desai C.T. Scan should be done. Accordingly C.T. Scan was done. On 17^th December 1987 Dr. Desai accompanied by Dr. Maniar had come and seen my wife at 11.00 a.m. Dr. Mukherjee was not with them at that time. Dr. Maniar had requested me to leave the room and wait outside. After 4 minutes Dr. Maniar called me inside the room. On entering the room I heard in my presence my wife was asking Dr. Desai that “How he was advising to take out my uterus when U.S. Doctors had ruled out the possibility of taking out uterus as it would be hazardous.” I heard Dr. Desai telling “Don't worry, I have seen your reports and record, and have examined you also.” Dr. Desai further said that he would do the operation and take out the Uterus. Both of them left the room and I followed them. I put a question to Dr. Desai whether he would really be able to take out the Uterus. He told me that he knew his job. I immediately apologised and requested him to do the operation himself. He asked me to inform Dr.Mukherjee, to contact him”.

¶212

Further, he stated that the deceased was admitted to the

¶213

Bombay Hospital in Room No.1005 (MRC) of First Class on 9^th

¶214

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¶216

December 1987. He has described what transpired on 22nd December

¶217

The said material portion reads thus:

¶218

“When Dr. Desai alighted from the lift I talked to him and requested him to reconsider the decision to operate on my wife to which he did not reply and walked inside the operation theatre. After about half an hour or so Dr. Desai came out of the operation theatre. I expected him to talk with me but he did not talk with me and he left by the lift. Immediately I heard Dr. Mukherjee calling me from the corridor of the operation theatre. I have immediately rushed to the operation theatre. Dr. Mukherjee told me that they could not take out the uterus from abdomen of my wife and they had closed the abdomen. I asked him what did Dr. Desai do? Dr. Mukherjee told me that Dr. Desai did not come inside the operation theatre but he advised me to close the abdomen and left. He also told me that my wife had heard everything and she would tell me in the room.”

¶219

Thus, the evidence makes it very clear that beforeadmitting

¶220

the deceased to the Bombay Hospital on 9^th December 1987, the first Respondent and the deceased had not at all consulted or even contacted the Appellant. In fact, they had not even met or talked to the Appellant till 17^th December 1987.Even Dr.Mukherjee had not contacted the Appellant before the admission of the deceased to the Hospital . Though the admission sheet mentions Dr.P.B.D. (the initials of the Appellant), going by the evidence of the first Respondent, the deceased was admitted to the Bombay Hospital without knowledge or consent of the Appellant. In the aforesaid portion of the evidence, the first Respondent has stated that he suggested to Dr. Mukherjee to contact the Appellant.

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In fact, in the letter dated 19^th February 1988 (Exhibit-1) addressed by the first Respondent to the fourth Respondent Dr. Mukherjee, he has specifically stated that the deceased was admitted for treatment of cancer in Bombay Hospital as per the advise of the fourth Respondent. He stated in the said letter that on his request, his wife's case was referred to the Appellant. What is most important is that in the said letter, the first Respondent stated that “on our request, you had referred the case to Dr. P.B. Desai and also requested him to do the operation or at least be available at the time of operation”. The said letter records that the date of operation was fixed by the Appellant and that he and his wife had requested the Appellant to himself perform the surgery. He stated that on 22^nd December 1987, he again requested the Appellant to perform the surgery when he was entering the Operation Theatre. The first Respondent was confronted with the contents of the said letter dated 19^th February 1988 in his cross examination. His response to what is stated by him in the said letter reads thus:-

¶225

“Answer :- Dr. Mukherjee had told me that he had requested Dr. Desai to operate and that Dr. Desai had also conveyed to him that Dr. Desai would remain present at the time of operation and therefore I had written this in my letter dt. 19-2-1988 (Exh.1).

¶226

I had conveyed to Dr. Mukherjee on the same day or may be on the next day that Dr. Desai had come and had seen my wife and had suggested surgery and that he had agreed to perform the surgery. In the said letter I have not mentioned the fact that Dr. Desai had agreed to operate on my wife. I might have missed it.

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Question: If Dr. Desai according to you had already agreed to operate on your wife, where was the question of your requesting Dr. Mukherjee to request Dr. Desai to atleast be available at the time of the operation? Answer : I have repeated whatever Dr. Mukherjee had told me”.

¶231

This letter shows that the admission of the deceased to

¶232

Bombay Hospital was as per the advice of Dr. Mukerjee. The first Respondent requested Dr. Mukherjee to contact the Appellant. The said letter written by the first Respondent earliest in point of time does not refer to any express contract with the Appellant. The oral evidence of the first Respondent shows that it is not his case that prior to 17^th December 1987, he had contacted the Appellant. The fourth Respondent Dr. Mukherjee in his Written Statement has claimed that he never admitted any of his patients in the name of the Appellant. But, he used to admit his own patients in the name of Dr. Paymaster even after his retirement from the Bombay Hospital. The deceased could have been admitted to the Bombay Hospital on 8^th /9^th December 1987 in the name of the Appellant either on the instructions of the Appellant or at least with the knowledge of the Appellant. Going by the evidence of the first Respondent, the Appellant was never consulted by him till 17^th December 1987 and the Appellant had no knowledge that the deceased was admitted as his patient in the Bombay Hospital. As far as the advice given by the Appellant on 17^th December 1987 is concerned,

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the case paper is on record. There is an endorsement on the case paper made by the fourth Respondent that the opinion of the appellant should be sought. The advice of the Appellant which is noted in the case paper on 17^th December 1987 is that the patient should undergo exploratory surgery. What is noted in the case paper is only an advice to undergo exploratory surgery and not the advice to undergo a surgery for removal of uterus. There is no material on record to suggest that the Appellant suggested that the deceased should undergo surgery for removal of uterus without exploratory surgery.

¶237

It is necessary to make a reference to further part of the evidence of the first Respondent. He admitted that in fact the fourth Respondent Dr. Mukherjee had advised him after examining the deceased to get admitted in any Hospital. He admitted that he went to the Bombay Hospital with the note dated 8^th December 1987 of Dr. Mukherjee. He admitted that Dr. Mukherjee after giving the said note had suggested to go either to the Tata Memorial Hospital or to the Bombay Hospital.

¶238

In the further part of the evidence, the first Respondent admitted that he was unable to say whether Dr. Mukherjee was personally negligent in performance of the surgery. He admitted that Dr. Mukherjee had taken proper care after the surgery. He admitted

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that though Dr. Rashmi Kotak was the Anesthesiologist for the surgery, he was not aware whether she was called by Dr. Mukherjee. He further stated that he told Dr. Mukherjee that he wanted his wife to be treated by the Appellant when Dr. Mukherjee told him that for that he had to go to the Tata Memorial Hospital. The relevant part of the evidence reads thus:

¶242

“Dr. Rashmi Kotak was an Anaesthesist for the operation. I do not know whether she was called by Dr. Mukherjee. I will not be in a position to contradict that she was called by Dr. Mukherjee and not by Dr. Desai. I see the note dtd. 8.12.1987 page 9 of Exh. H colly. This note was given to me by Dr. Mukherjee for hospitalisation. I had told Dr. Mukherjee that I wanted my wife to be treated by Dr. Desai. Dr. Mukherjee told me that for that I had to go to Tata Memoral Hospital. He also told me that he cannot write the name of any doctor and I should go wherever my wife could be hospitalised. Dr. Mukherjee had told me it will be difficult to get a room in the Bombay Hospital and meet Dr. Desai and therefore I was told to meet him in Tata Hospital but I could not meet him there. I went with it in Bombay Hospital on 8.12.1987 and I met Mr. G.P. Sharma of the Bombay Hospital. In the letter dtd. 8.12.1987 given by Dr. Mukherjee the words MRC first class are mentioned. I did not see those words when I had first gone to Tata Hospital and then I contacted Bombay Hospital”.

¶243

These statements of the first Respondent show that the deceased was not admitted to the Bombay Hospital as the patient of the Appellant.

¶244

As regards the alleged assurance given by the Appellant to perform surgery, the first Respondent stated thus:

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“To me Dr. Desai had not given any writing that he would perform the operation on my wife. Consent has been obtained by the Hospital in his favour. That is to say my wife's consent. My wife's consent and also my consent. I don't have any papers to show that Dr. Desai had either given consent or agreed to operate on my wife.

¶249

When he was confronted with the consent signed by the deceased, he stated that the name of the Appellant is mentioned in the earlier columns and, therefore, his case was that the consent was in the name of the Appellant.

¶250

The first Respondent was confronted with the contents of his complaint against the Appellant filed before the Maharashtra Medical Council. He was read over the Request No.3 in his complaint, which reads thus:

¶251

“3. Inquire into the very system of admission of patients in Bombay Hospital. It is learnt that a fix number of beds are being allotted to Sr. Doctors and patients are admitted in their names even though these patients may be of other Junior Hon. Doctors. The operation fee is charged in the name of these Senior Doctors and operating junior doctors only get nominal fee inspite of the fact that total responsibility remains with those junior doctors only as it has happened in this case of my wife.”

¶252

He stated in the cross examination that what is stated therein

¶253

is correct. Thus, he was aware of the practice followed by the Bombay

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Hospital of allowing the Junior doctors to admit their patients in the name of their respective Seniors.

¶258

A specific question was put to the first Respondent whether after 17^th December 1987, he had any interaction with the Appellant. He stated that except on 22^nd December 1987, he had no interaction with the Appellant.

¶259

It will be necessary to make a reference to the evidence of Amarchand Sharma, the Accounts Supervisor of the Bombay Hospital, examined by the original Plaintiffs. His attention was invited to a bill for the period from 21^st December 1987 to 31^st December 1987. The said bill incorporated the amount of Rs.5,000/- payable to the Appellant. The said bill was marked as “Exhibit-N”. Later on, he stated that another bill at Exhibit-L was prepared as in the bill at Exhibit-N, by mistake, an amount of Rs.5,000/- had been shown as fees payable to the Appellant. He stated that the rectified amount was informed to the Rajasthan Government. In the cross-examination, he admitted that the bills were received by the Bombay Hospital from the Rajasthan Government. He stated that the Bombay Hospital has not made any payment to the Appellant. The relevant part of his cross-examination reads thus:

¶260

“It is correct that the payment of the bills were received by the Bombay Hospital from the Rajasthan

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Govt. (witness is shown Exh. L). The payment has been received in accordance with the bill mentioned in Exh. L. To my knowledge, Bombay Hospital has not made any payment of the fees to Dr. Desai in regard to the treatment of this patient.”

¶265

In this background, it will be necessary to make a reference to the affidavit in lieu of the examination-in-chief of the Appellant. In paragraph 6, he has stated thus:

¶266

“6. At the relevant time, Dr. Mukherjee who was working as an Assistant Surgeon, was not allowed to admit patients under his own name. He was however managing his own patients independently. The admission practice of the Bombay Hospital was that Assistant Honorary Surgeons could not admit their patients in their own name in the private ward but the name of the senior Surgeon would appear on the case papers even though the patient was not of the senior Surgeon and was not being treated by the senior Surgeon. Prior to 17-12-1987, I had never seen Mrs. Singhi or heard of her. I had not given my consent nor had Dr. Mukherjee or anyone from Bombay Hospital asked for my consent before admitting Mrs. Singhi under my name. If Mrs. Singhi was my patient I would have seen her immediately on admission and I would have ordered relevant investigations for her”.

¶267

In paragraphs 9 and 10, he has stated thus:

¶268

“My medical opinion as aforesaid was based on the fact that Mrs. Singhi already had repeated attacks of profuse bleeding from her cervix. Chemotherapy was given in the past and she had already received radiation to the chest and abdominal region. Hormone treatment had already been used. She was admitted to Bombay Hospital because of the bleeding. The source of the bleeding was her cancerous cervix. The exploratory Laparotomy with a view to hysterectomy (removal of uterus) was not to

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cure her of her cancer but to prevent episodes of bleeding which can become life threatening. The C.T. Scan Report and examination did not contraindicate exploratory surgery for removal of the source of bleeding because all other organs were normal. The main problem was persistent, recurrent and ofter profuse bleeding. To remove any bleeding or obstructing cancer, a surgical operation for its removal and palliation in cancer treatment is often necessary which does not necessarily cure but can achieve palliation or comfort. This is often called “Debulking” or to reduce the amount of cancerous tissues in the body. The less the cancer, the better it is for the patient so that the drugs can deal better with less residual cancer mass. Such procedures are performed worldwide as backed by extensive documentation in scientific literature.

¶273

As Mrs. Singhi was not my patient there was no question of my operating on her. I was never asked either by Plaintiff No.1 or Mrs. Singhi or by Dr. Mukherjee to operate her. I never told the patient, nor Plaintiff No.1, nor Dr. Mukherjee or anyone else that I would perform the operation on Mrs. Singhi. My role was limited to giving my opinion as requested by Dr. Mukherjee”.

¶274

The case of the Appellant as to what transpired on 22^nd December 1987 is stated by him in Paragraphs 13 and 14 which reads

¶275

thus:

¶276

“13. On 22^nd December 1987 as usual I entered the Operating Room. There was no one around and I straight went to the Operating Theatre No.1 and joined my team for surgery. Neither Dr. Mukherjee nor Mr. Singhi or anyone else contacted or spoke to me before the operation on 22^nd December 1987 and I was not aware when Dr. Mukherjee started the operation on Mrs.

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Singhi. During the surgery on Mrs. Singhi, neither Dr. Mukherjee, nor Dr. Maniar, nor any one else came to the theratre where I was operating. After I had finished operating in Theatre No.1 and was on the way out of the Operation Theatre No.1, in the corridor adjoining the Operation Theatres, the ward boy opened the door of the Operation Theatre No.2 when Dr. Mukherjee from inside the Operation Theatre informed me that everything inside the abdomen of the patient Mrs. Singhi on whom he was operating was plastered and there was ascitic fluid, and he could not proceed further with the operation because the cancer was too advanced. Under these circumstances I suggested that it would be advisable to close the abdomen. Even at this time Dr. Mukherjee did not request me either to join in the operation or to come and see the patient or to help him in any way. Nobody came to call me, nor did Dr. Mukherjee come to call me while I was operating in the other theatre. There was no reason for me not to accept Dr. Mukherjee's findings about the condition of the patient. Medically “plastering” indicates an advanced inoperable cancer and a situation not conducive to any further surgery. The best option in such cases is to close the abdomen. Such exploratory operations (exploratory lapratomy) are common in cancer surgery.

¶281

During the entire 3½ months of her hospital stay after the surgery neither Dr. Mukherjee nor Mr. Singhi nor any member of the resident medical staff of Bombay Hospital, ever requested me to see Mrs. Singhi. If she was my patient, I would have seen her daily when I went on my daily rounds visiting my patients on the same floor. I was actually visiting a patient of mine on the same floor during that time almost daily.”

¶282

In paragraph 15, he has made a categorical statement that

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he has not charged any amount for advising the deceased and he has

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not received any amount from the Bombay Hospital. He stated that his name appeared in the case paper of the deceased in view of the practice of the Bombay Hospital to admit the patients of the doctors who were working as the Assistants in the name of their respective senior Consultants. The Appellant was extensively cross-examined on various aspects. He was cross-examined on his visit on 17^th December 1987. In Paragraph 22 of the cross-examination, he has stated thus:

¶288

“22. I examined Mrs. Singhi on 17^th December 1987, in her room in the Bombay Hospital. I cannot recollect the time when I examined her. I had with me resident doctor. I think it was Dr. Maniar who was the resident doctor and nurse. Perusing the reports and the examination of Mrs. Singhi must have taken around 10 minutes. The resident doctor informed me that Dr. Mukherjee wants my opinion on Mrs. Singhi. Once Dr. Mukherjee phoned me by saying that this patient has come from America and the relatives were keen to have my opinion. On the case records Dr. Mukherjee recorded “take Dr. Desai's (i.e. myself) opinion after C.T. Scan”, under his signature. That writing of Dr. Mukherjee is there on page 11 on Exhibit 'H' signed by him. Before entering the room of Mrs. Singhi I had no occasion to go through her case papers.”

¶289

The cross-examination made in Paragraph 23 is very

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important. Relevant part reads thus:

¶291

“The examination which I did on 17/12/87 was not under any anastesia. It was routine clinical examination. On the basis of the case papers that were available, I perused all the reports and I advised that under the circumstances of her repeated bleeding from cervix an exploratory laparotomy. I suggested exploratory laparotomy with a view to remove the uterus which had repeated profuse bleeding. I gave

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this opinion orally to the resident doctor to convey to Dr. Mukherjee who had asked my opinion. In view of the records in the case papers at Exh.H which is the writing made by Dr. Mukherjee I say that my opinion must have been communicated to him. Between 17/12/87 and 22/12/87 Dr. Mukherjee met me and told me about the operation on Mrs. Singhi and also that the patient has come from America, and patient's relatives were keen that I should be around her if any help is needed when Dr. Mukherjee performs operation. At no point Dr. Mukherjee, defendant No.2 asked me to perform the operation.”

¶296

Here the Appellant categorically admitted that between 17^th December 1987 and 22^nd December 1987, the fourth Respondent Dr. Mukherjee met him and told him about the surgery of the deceased. He admitted that Dr. Mukherjee informed him that the patients' relatives were keen that he should be around the deceased if help is needed when Dr. Mukherjee was to perform operation. In Paragraph 59 in his crossexamination by the fourth Respondent Dr. Mukherjee, the Appellant stated thus:

¶297

“59. Between 17.12.87 and 22.12.87 defendant No.2 telephoned me once and once met me in the Bombay hospital complex about Mrs. Singh's operation. I told Dr. Mukherjee, defendant no.2, that on 22.12.1987, I have another surgical case to be done and I will be around if any help is needed, when defendant no.2, would be operating on Mrs. Singhi.”

¶298

(emphasis added)

¶299

Thus, there is a clinching admission that the Appellant told Dr. Mukherjee that on 22^nd December 1987, he had another surgical case to be done and he would be around if any help is needed, when defendant No.2 would be operating on Mrs. Singhi.

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Dr. Rashmi Dilip Raja (Nee Dr. Rashmi Kotak) was examined as a witness of the Appellant who was admittedly present at the time of performing the surgery and who administered epidural anaesthesia to the deceased. Her version in the examination-in-chief reads thus:

¶304

“For the purpose of my professional services I was contacted on the previous night by Dr. A.K. Mukherjee when he informed me that he was going to operate on the said Mrs. Singhi. Dr. Mukherjee had explained to me about this surgery viz that he was going to perform exploratory laparotomy on Mrs. Leena Singhi with a view to remove the organ which could be decided on the operation table only after opening the abdomen. Dr. Mukherjee had also informed and discussed with me that the patient Mrs. Leela Singhi be considered for epidural anaesthesia as the patient was not fit for general anaesthesia.

¶305

In pursuance of the call of Dr. Mukherjee I had attended the said patient on the day of the operation at about 8.30 a.m. in the morning approximately and met Dr. Mukherjee. Just prior to the operation Dr. Mukherjee once again explained to me that he was going to perform exploratory laparotomy on the patient and after opening her abdomen he would decide as to whether the particular organ was to be removed or not, for which he discussed about giving epidural anaesthesia to the patient, as she was not fit for general anaesthesia. Accordingly I had administered epidural anaesthesia.”

¶306

She denied the correctness of the suggestion that she was aware that the deceased was the patient of the Appellant. Her evidence supports the case of the Appellant that it was Dr.Mukerjee who was the operating surgeon and not the Appellant.

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At this stage, it will be necessary to make a reference to the documentary evidence on record. As stated earlier, in the case papers, it is recorded that the opinion of Dr. Desai should be sought. His opinion recorded is that the deceased should undergo exploratory surgery. Accordingly, on 22^nd December 1987, the deceased underwent exploratory Laparotomy. It is true that in the middle portion of the first page of the document at Exhibit-H which is the admission sheet, the name of the Appellant is recorded as “Honorary”. At the bottom of the first page, a written consent of the deceased to undergo operation has been recorded which does not contain the name of any Doctor. On the second page of the admission sheet, the signature of the first Respondent appears below a printed endorsement “I desire myself/my patient to be admitted and treated under the care of Dr. P.B.D.” the letters P.B.D are written by hand and the other portion is printed. On the perusal of the case papers of the deceased, it appears that except for one entry regarding seeking opinion of the Appellant and the second entry recording the advice of the Appellant, it appears that the name of the Appellant does not figure in the case papers. On the contrary, it appears that the deceased was regularly attended to by the fourth Respondent Dr. Mukherjee. The endorsement made by Dr. Mukherjee on 11^th December is that after “Cat scan”, opinion of the Appellant should be sought. This shows that all tests prior to 17^th December 1987 were

¶311

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¶313

done on the instructions of Dr. Mukherjee. We have already held that the deceased was never admitted as the patient of the Appellant.

¶314

The other issue is regarding the bill prepared by the Bombay Hospital. It is an admitted position that initially the bill dated 31^st December 1987 for the period from 21^st December 1987 to 31^st December 1987 was prepared in which the fees of Rs.5,000/- was shown payable to the Appellant. It also showed that Rs.1,667/- being 1/3^rd amount of Rs.5000/- was payable to Dr. Mukherjee and the sum of Rs.2,222/- was payable to Dr. Kotak. The sum of Rs.5,000/- was subsequently deleted out of the total bill amount of Rs.20,462/-. Deletion is made on 13^th February 1988. It is an admitted position that the amount of Rs. 5000/- shown payable to the Appellant has not been received by the Hospital. As regards the register maintained in the operation theatre, there is some controversy. The Plaintiffs examined Shri Amarbahadur Harakhpal Singh, who was working on 22^nd December 1987 in the Cancer Operation Theatre of Bombay Hospital. He produced the original register brought from the Bombay Hospital. The extract of the original register was marked as “Exhibit-O”. The said register shows that the name Dr.Mukherjee as the Surgeon against the name of the deceased. On the same day, the name of the Appellant appears as a surgeon against another patient. In the crossexamination of the same witness, a photocopy of Register No.4 was

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sought to be produced by the Advocate representing the fourth Respondent. The learned Judge noted in the evidence that the Bombay Hospital has categorically stated that the original Register No.4 is missing and, therefore, the learned Judge declined to mark the said document as exhibit. The learned Single Judge for the first time marked the said document as Exhibit-Q-1 for the reasons recorded in the impugned judgment. We have perused the document at Exhibit Q- 1 which shows that the said document was marked as Exhibit on 9^th September 1991. It is marked 7 days after the impugned judgment was delivered. When the predecessor of the learned Single Judge has recorded a specific order in the deposition that the said document cannot be marked as exhibit, the learned Single Judge while delivering the judgment could not have marked the said document as an exhibit. In any event, if the learned Single Judge was of the opinion that the said document deserves to be marked as an Exhibit, then an opportunity ought to have been granted to the parties to adduce further evidence. As the said document was not marked as Exhibit, the Appellant may not have cross-examined the witness on the said document. Moreover, the said document has been marked as Exhibit on 9^th September 2011. Therefore, the learned Senior Counsel appearing for the Appellant was justified in his criticism that the said document could not have been marked as exhibit and could not have been read in evidence. In the documents produced by the Bombay

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Hospital which were marked collectively as exhibit H, there is a sheet described as operation record which mentions the name of Dr.Mukerjee as a surgeon and Dr.Maniyar as his assistant. There is an endorsement appearing on the said document that the Appellant was informed who adviced closure of abdomen. A copy of the same sheet is also marked as exhibit '3'. Though the two documents are identical, in the second one, the endorsement regarding the advice of the Appellant is missing.

¶323

As regards the role of the Appellant in the surgery, we have already quoted what the Appellant stated in his cross-examination in Paragraph 23. In Paragraph 59 in his cross-examination by the fourth Respondent Dr. Mukherjee, the Appellant stated thus:

¶324

“59. I told Dr. Mukherjee, defendant no.2, that on 22.12.1987, I have another surgical case to be done and I will be around if any help is needed, when defendant no.2, would be operating on Mrs. Singhi. ”

¶325

(emphasis added)

¶326

Thus, there is a categorical admission by the Appellant that

¶327

he had told Dr. Mukherjee that on 22^nd December 1987 as he had another surgical case be to be done, he would be around, if any help is needed when Dr. Mukherjee would be operating on the deceased. This case is not made out by the Appellant in his written statements on record. He should have fairly stated so in the pleadings.

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Thus, to summarize, on the comprehensive examination and analysis of the oral and documentary evidence, we find that the deceased was not admitted to the Bombay Hospital as the patient of the Appellant. Moreover, there is nothing on record to show that any one had informed the Appellant at the relevant time or made the Appellant aware at the relevant time that the deceased has been admitted as his patient. Secondly, the case papers show that only an opinion of the Appellant was sought and for the first time, he saw the patient on 17^th December 1987 when he recorded an opinion that the exploratory surgery was advised. There is no evidence on record to show that the Appellant had agreed to perform the surgery. However, the Appellant clearly agreed that on 22^nd December 1987, he would be around, if any help is required when Dr. Mukherjee was to operate upon the deceased. To this extent, the Appellant and the deceased had a relationship as a Doctor and a Patient. However, there is absolutely no evidence on record to show that the Appellant had agreed to operate upon the deceased. Though initially, the bill issued by the Bombay Hospital contained a demand of Rs.5,000/- as the fees payable to the Appellant, not only that the bill was modified by deleting the said amount, but in his examination-in-chief, the Appellant has stated that he never received the said amount. The said fact is confirmed by the second witness examined by the original Plaintiffs Shri Amarchand Sharma. It

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is not even the case of the original Plaintiffs that the Appellant received a sum of Rs.5,000/-. It is not even their case that the said amount was paid to the Bombay Hospital. Therefore, there is no merit in the submission of the learned counsel appearing for the first Respondent that the burden lies on the Appellant to prove that he had not received the said amount.

¶336

At this stage, it will be necessary to make a reference to certain findings recorded by the learned Single Judge. As narrated earlier, the learned Single Judge has recorded a finding that there was an implied contract. The original Plaintiffs have pleaded the existence of an express contract and not an implied contract. The learned Judge is not right when she has gone to the extent of observing in Paragraph 93 as under:

¶337

“93. It is difficult not to imply a contract between the parties. It is impossible not to hold Defendant No.1 liable for the contract made at his convenience and which would have earned him the fees of the day. In fact I may hasten to add, if Defendant No.1 had tread only those six feet that separated him from Defendant No.2, as per his own deposition, at the time he reached the door of the O.T. and failed to enter, he could have performed the same act as Defendant No.2 did and charge his full fee legitimately. Alas, though Defendant No.1 succeeded in fixing two surgeries at the same time, much like an act to kill two birds with one stone, he failed to take aim for one of them. He breached the contract by nonperformance of the surgery or even remaining “around”.

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Though there may be some justification in the criticism offered by the learned Single Judge about the omission on the part of the Appellant to enter the operation theatre where the fourth Respondent Dr. Mukherjee was operating upon the deceased, the subsequent observations about the Appellant were uncalled for as the same are not justified or warranted by the evidence on record.

¶342

In Paragraph 65, the learned Single Judge has held thus:

¶343

“65. This could happen only if the two Doctors meet during the surgery. They were in two adjoining OTs. They had met near one of them. It is hardly important whether they met near the door or outside the door of the OT No.2 where the original Plaintiff No.2 was. The fact remains that they met and discussed. If it was for Defendant No.1 to perform the surgery or at least remain “around”, he had to enter the OT No.2, see the patient and do the needful. Admittedly he was informed of her condition. Admittedly he was to be at least available or around her. Admittedly he only told Defendant No.2 to stitch up the abdomen upon being informed of her medical condition. Consequently after promising to be around all that Defendant No.1 did was to be near the door of the OT, to listen to the medical condition of the patient and to direct Defendant No.2 to stitch her up.”

¶344

In Paragraph 64, the learned Single Judge has recorded that the Appellant had agreed to be around at the time of surgery which was to be performed by the fourth Respondent. The learned Single Judge has recorded a finding in Paragraph 69 that as the Appellant

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agreed to be around on 22^nd December 1987 when he had fixed another surgery, it is apparent that he had agreed to perform surgery on the deceased. This finding that he had agreed to perform surgery on the deceased is not at all supported by the evidence on record. In Paragraph 66, the learned Single Judge observed thus:

¶349

“66. Even the admitted performance of the contract accepted by him was not performed. This act would show total non performance of his promise as a promisee even to be around or to be available, if needed. This Defendant No.2 could have done without any senior professional advice and even if Defendant No.1 was far away. It, therefore, hardly matters that the Anaesthesist as well as the Houseman deposed that neither the Houseman nor the Defendant No.2 went out of the OT to call Defendant No.1. Defendant No.1 could have been at the door of the OT No.2 of Mrs. Singhi only if he was called and after being called he was expected to perform some act in the surgery or relating to it which he did not do.”

¶350

The only finding which can be recorded against the Appellant on the basis of the evidence is that the Appellant had agreed to remain around when the fourth Respondent was to perform exploratory surgery on the deceased. He had agreed to remain around in case Dr.Mukerjee needed any help in the surgery. Only fault which can be certainly attributed to the Appellant is that when the fourth Respondent informed him in the corridor outside the operation theatre his observations and findings after opening of the abdomen, the Appellant gave an opinion to close the abdomen without even entering the Operation Theatre and without having personally verified the

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condition of the abdomen of the deceased.

¶355

The first two questions will have to be accordingly answered by holding that the deceased was not admitted as the patient of the Appellant. The contract between the Appellant on one hand and the first Respondent and the deceased on the other hand as pleaded in the Plaint has not been proved on evidence. What is established is that on the suggestion of Dr. Mukherjee, the Appellant was called to see the deceased on 17^th December 1987 only for seeking his opinion. He advised exploratory surgery. Dr. Mukherjee discussed with the Appellant the surgery on the deceased. He agreed to remain around when the fourth Respondent was to perform surgery upon the deceased if the fourth Respondent needed his help. The breach on the Part of the Appellant is at highest of the said agreement to the extent that the Appellant did not enter the operation theatre to see the condition of the deceased.

¶356

The third issue is regarding the damages. The damages have been granted by the learned Judge on account of the breach of contract. We have already held that the contract as pleaded in the plaint is not proved. Therefore, there is no occasion to grant damages under Section 73 of the Contract Act. It is not the case of the original Plaintiffs that had the Appellant himself performed the surgery, the deceased

¶357

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¶359

would not have suffered from fistula. In fact, the original Plaintiffs have no grievance about the manner in which Dr. Mukherjee performed the surgery. Moreover, the first Respondent has given a certificate about the satisfactory performance of Dr. Mukherjee. If any pain and suffering was caused to the deceased due to fistula, the same cannot be attributed to the Appellant. Even assuming that the fourth Respondent was acting under the instructions of the Appellant, it is not even the case of the original Plaintiffs that due to failure on the part of the fourth Respondent to perform his duty properly or on account of his negligence that the condition of fistula was caused. Moreover, it is not the case of the original Plaintiffs that the exploratory surgery is the cause of the death.

¶360

We have held earlier that the only breach committed by the Appellant is that he did not actually enter the operation theatre to see the condition of the Appellant. However, there is no evidence on record to show that on account of the said breach, any loss or damage was caused to the deceased. Even according to the case of the first Respondent put across during the course of hearing of this Appeal, the damages have been granted by the learned judge under Section 73 of the Indian Contract Act, 1972. The damages include the bill amount which was paid by the Rajasthan Government, and nursing charges incurred by the original Plaintiffs after the deceased was shifted to

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Rajasthan. The damages granted include an amount of Rs.15,00,000/made payable on the ground of pain and suffering. There is not even a remote connection between the pain and suffering by the deceased and the default or the breach on the part of the Appellant. Even in this Appeal, the original Plaintiffs have not challenged the findings against them on the issue of negligence and have not supported the decree of damages on the ground of negligence.

¶365

Going by the Plaint, according to the case of the First to third Respondents, it was possible to quantify the alleged loss in terms of money. In the case of ONGC Ltd. v. Saw Pipes Ltd.³ , the Apex Court held thus:

¶366

“68. From the aforesaid discussions, it can be held that:

¶367

( 1 ) Terms of the contract are required to be taken into consideration before arriving at the conclusion whether the party claiming damages is entitled to the same.

¶368

( 2 ) If the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the contract unless it is held that such estimate of damages/compensation is unreasonable or is by way of penalty, party who has committed the breach is required to pay such compensation and that is what is provided in Section 73 of the Contract Act.

¶369

( 3 ) Section 74 is to be read along with Section 73 and, therefore, in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him

¶370

3 (2003) 5 SCC 705, at page 742

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before he can claim a decree. The court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of a contract.

¶375

( 4 ) In some contracts, it would be impossible for the court to assess the compensation arising from breach and if the compensation contemplated is not by way of penalty or unreasonable, the court can award the same if it is genuine pre-estimate by the parties as the measure of reasonable compensation.”

¶376

In the case of Maula Bux v. Union of India⁴ , the Apex

¶377

Court held thus :

¶378

“6. Counsel for the Union, however, urged that in the present case Rs 10,000 in respect of the potato contract and Rs 8500 in respect of the poultry contract were genuine pre-estimates of damages which the Union was likely to suffer as a result of breach of contract, and the plaintiff was not entitled to any relief against forfeiture. Reliance in support of this contention was placed upon the expression (used in Section 74 of the Contract Act), “the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation”. It is true that in every case of breach of contract the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree, and the Court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of contract. But the expression “whether or not actual damage or loss is proved to have been caused thereby” is intended to cover different classes of contracts which come before the Courts. In case of breach of some contracts it may be impossible for the Court to assess compensation arising from breach, while in other cases compensation can be

¶379

4 (1969) 2 SCC 554, at page 559

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calculated in accordance with established rules. Where the Court is unable to assess the compensation, the sum named by the parties if it be regarded as a genuine pre-estimate may be taken into consideration as the measure of reasonable compensation, but not if the sum named is in the nature of a penalty. Where loss in terms of money can be determined, the party claiming compensation must prove the loss suffered by him.”

¶384

(emphasis added)

¶385

Taking the evidence of the original Plaintiff as it is, there is no evidence of any loss suffered by them or by the deceased due to the failure of the Appellant to operate upon the deceased. Considering the law laid down by the Apex Court, the grant of damages under the impugned Decree cannot be justified under Section 73 of the Indian Contract Act, 1972. Even assuming that there was a breach of contract and in absence of the proof of actual loss, the Court could have granted a reasonable amount by way of damages, the amount granted under the impugned decree cannot be justified at all. It cannot be a reasonable amount especially when there is not even a remote connection between the default on the part of the Appellant and what is sufferred by the deceased. Therefore, the decree granting damages will have to be set aside. We must note here that the learned Judge has not granted any damages against the fourth Respondent Dr. Mukherjee who had actually performed the surgery.

¶386

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¶388

At this stage, we must make a reference to the finding recorded by the Maharashtra Medical Council against the Appellant which was accepted by the Appellant. The finding is that the Appellant ought to have taken more interest and personally seen the situation faced by Dr. Mukherjee which he did not. The said finding has been accepted by the Appellant as he has not challenged the same. It is true that the scope of adjudication on the issue of misconduct before the body of professionals is completely different from the adjudication in the Civil Suit. The only test applied by the professional body is whether the conduct of the professional is infamous or improper.

¶389

As far as the judgment of the Apex Court in Criminal Appeal No.1432 of 2013 is concerned, there are three specific findings recorded apart from the holding that the Appellant is not guilty of any offence.

¶390

“64. However, the important and relevant point is: Had the appellant undertaken the surgical procedure by himself, the result would have been different ? Or, to put it otherwise, whether opening of abdomen by Dr. Mukherjee and not by the appellant who was supposed to do it, made any difference ? In the given case, we do not find it to be so.”

¶391

78. In paragraph Nos.66 and 69, the Apex Court held thus:

¶392

“66. The appellant's omission in not rendering complete and undivided legally owed duty to patient and not performing the procedure himself has not made any difference. It was not the cause of the

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patient's death which was undoubtedly because of the acute chronic cancer condition. In such a scenario, it is enough to keep off the clutches of criminal law.”

¶397

“69. For the aforesaid reasons, we have no option but to conclude that though the conduct of the appellant constituted not only professional misconduct for which adequate penalty has been meted out to him by the Medical Council, and the negligence on his part also amounts to actionable wrong in tort, it does not transcend into the criminal liability, and in no case makes him liable for offence under Section 338, IPC as the ingredients of that provision have not been satisfied.”

¶398

The Apex Court in the case of Adi Pherozshah Gandhi v. H.M. Seervai held that a decision of the Criminal Court is not res judicata in Civil proceedings. It is held by the Apex Court in the case of Anil Behari Ghosh that a previous judgment in the Criminal case is relevant only to the extent to which it shows that there was a trial resulting in the conviction or acquittal.

¶399

In that sense, the decision of the Maharashtra Medical Council as well as the decision of the Apex Court have a limited relevance. However, we have found on evidence that the Appellant ought to have done his duty by entering the operation theatre where Dr. Mukherjee was operating upon the deceased and ought to have personally seen the condition of the deceased before advising the fourth Respondent Dr. Mukherjee to close the abdomen of the deceased. The Appellant had specifically agreed to remain around at the time of surgery on the deceased in case he was needed by Dr. Mukherjee. Dr.

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Mukherjee had admittedly sought his opinion after he found that it was not possible to perform the surgery on the deceased to remove the mass which was causing the vaginal bleeding. Without personally observing the condition of the deceased on opening of the abdomen, while standing outside the operation theatre, he gave his opinion to close the abdomen.

¶404

Now what remains is the decree in the sum of Rs.1 lakh by way of costs. The costs is always at the discretion of the Court. Though the original Plaintiffs could not prove the case against the Appellant as pleaded by them, they have established the default on his part as set out earlier. The suit went on for more than ten years. Considering the findings which we have recorded above, we find that this is not a fit case to disturb the the order as to costs. For the same reasons, we are not passing any order as to costs in this Appeal.

¶405