Joint Director of Health Vs Rajendran (Died)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 01.03.2021
PRONOUNCED ON : 17.03.2021

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CORAM

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THE HONOURABLE MR. JUSTICE T.RAVINDRAN

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S.A.No. 1461 of 2008

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and

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M.P. Nos. 1 of 2008 and 1 of 2010

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1. Joint Director of Health Service

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Periyar District at Erode-1.

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2. The Deputy Director of Medical Rural Health & Family Welfare, Periyar District at Erode.

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3. The District Collector, Erode District, Erode

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4. The Director of Family Welfare, Chennai 8

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5. The Secretary, Health Department, Secretariat Chennai. ...Appellants / Defendants

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Vs.

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1. Rajendran, Son of Gurusamy (died)

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2. Minor Ranjitha, D/o. Rajendran (Major)

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3. Mrs. Jothi

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4. Velavan (minor)

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5. Selvi. Nithyapriya (minor) ... Respondents / Plaintiff's

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Respondents 3 to 5 brought on record as LRs of
the deceased first respondent viz. Rajendran
vide order of court dated 08.02.2021 made in
CMP No.25850/19 in S.A. No.1461/2008

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R2 declared as major vide order of court dated
08.02.2021 made in CMP No.25851/19 in SA

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No.1461/2008

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Prayer: Second Appeal is filed under Section 100 of CPC, 1908
against the judgment and decree dated 21.04.2007 made in
A.S.No.61/2006 on the file of the Principal District Judge of
Erode which was reversed by the judgment and decree made in
O.S.No.407/1998 dated 08.07.2004 on the file of the Principal
Subordinate Judge of Erode.

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For Appellants: Mr. N. Manikandan
 Government Advocate (CS)
For Respondents: Mr. N. Manokaran

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 JUDGMENT

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Challenge in this second appeal is made to the judgment
and decree dated 21.04.2007 passed in A.S.No.61/2006 on the file
of the Principal District Court, Erode, modifying the judgment
and decree dated 08.07.2004 passed in O.S.No.407/1998 on the file
of the Principal Subordinate Court, Erode.

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2.For the sake of convenience, the parties are referred
to as per their rankings in the trial court.

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3. The defendants in O.S.No.407/1998 are the appellants
in the second appeal.

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4. Suit for damages / compensation.

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5. The case of the plaintiffs, in brief, is that the
first plaintiff married one Radha six years back and out of the
wedlock, Radha gave birth to one female baby, who is aged 3 years
and she is the second plaintiff and thereafter, Radha got
conceived again and delivered a male baby on 26.04.1996 and the
abovesaid delivery is a normal delivery and therefore, the first
plaintiff and his wife decided to go for a family planning and
they were advised to go to Thanthai Periyar Government Head
quarters Hospital, Erode, for family planning operation by the
Primary Health Centre, Modakkurichi and the first plaintiff's
wife Radha was admitted at Erode Government Hospital for family
planning operation on 28.04.1996 and after medical check up by a
team of doctors, the doctors were satisfied that she was in good
health and a fit person to have the sterilisation surgery, on
30.04.1996 Radha was taken to operation theatre, where a team of
doctors, under the control of the defendants, performed the
operation and declared the operation a success. After the
operation, Radha was admitted as inpatient in the hospital and
given treatment and however, the very next day, Radha experienced
high temperature and she was uneasy and despite the same being
brought to the notice of the doctors concerned, no immediate
attention was paid to the first plaintiff's wife and only the
routine check up was given to Radha and thereby her health

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condition got deteriorated and she experienced untold sufferings
and despite the same, the duty doctors paid only casual visits
and at last, the first plaintiff's wife Radha died on 05.05.1996
at about 5.20 A.M. and the dead body was handed over to the
first plaintiff by the defendants without giving any explanation
for her death and no postmortem was done on her body. Being a
layman, the first plaintiff received the dead body and cremated
her. Thereafter, he had approached the hospital authorities to
know the cause of death of his wife, but, there was no proper
response. Later on, he was informed that his wife died due to
Pyogenic Menirigtise Septicemia and further the first plaintiff
believed that his wife had died only due to the carelessness and
negligence on the part of the duty doctors during sterilisation
operation and post operational period and the male baby delivered
by Radha, though was hale and healthy, however, the baby also
died after 90 days and even the cause of death of the baby is not
known to the first plaintiff. Probably the baby would have died
due to the infection from the feeding of the mother. If the duty
doctors had treated Radha, particularly, during and after
operational period, the life of Radha could have been saved as
well as the baby could have also been saved. The first
plaintiff's wife Radha was engaged as an agricultural coolie and
was maintaining two buffullows and was earning not less than
Rs.2000/- per month and out of the said income their daughter was
being maintained. Due to the demise of Radha, the plaintiffs
have lost her love and affection as well as are suffering
immensely on various factors and though the defendants would
claim that their doctors are specialised in all the fields of
medicine, however, they had failed to bestow utmost attention and
care to the first plaintiff's wife who had suffered during the
post operational period and therefore, the defendants are liable
to pay suitable damages to the plaintiffs for the demise of Radha
who had died only on account of the improper treatment and the
negligence caused by the doctors in providing good treatment to
his wife and accordingly, the plaintiffs have come forward with
the suit claiming a compensation of Rs.3,00,000/- for the death
of the first plaintiff's wife.

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6. The defendants resisted the plaintiffs' suit
contending that the first plaintiff's wife Radha was admitted in
Erode Government Hospital for family planning operation on
28.04.1996 and she underwent medical check up and the team of
doctors were satisfied that she was in good health and also a fit

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person for sterilisation and on 30.04.1996, the first
plaintiff's wife was taken to operation theatre and operated and
the operation was declared as success. However, it is false to
state that on the very next day Radha experienced high
temperature and she was uneasy and also false to state that the
abovesaid complaints were brought to the knowledge of the duty
doctors but they had not paid immediate attention to the first
plaintiff's wife. The treatment given to Radha was complete in
all the aspects and inspite of the proper treatment she had died
unexpectedly due to Pyogenic Mentingitis i.e. Septicemia and
there was no negligence on the part of the medical officers qua
the death of Radha. The Government Head Quarters Hospital,
Erode, is one of the best hospitals in the state with all the
facilities and the first plaintiff's wife had died unexpectedly
even though special care was provided to her and it is false to
state that the dead body was handed over to the first plaintiff
without explaining the reasons of her death. As per the request
of the first plaintiff and his relatives, the dead body was
handed over without postmortem and there is no negligence or
carelessness on the part of the defendants in providing the
treatment to Radha. The defendants are not admitting the earning
capacity of Radha as claimed in the plaint. The defendants are
not liable to pay the compensation to the plaintiffs and hence
the suit is liable to be dismissed.

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7. In support of the plaintiffs' case, P.W.1 was examined
and Exs.A1 to A12 were marked. On the side of the defendants
D.Ws.1 to 4 were examined and Ex.B1 was marked.

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8. On a consideration of the oral and documentary
evidence adduced by the respective parties, and the submissions
made, the trial court was pleased to grant a sum of Rs.1,60,000/-
as compensation to the plaintiffs after holding that the deceased
Radha had died only due to the carelessness and negligence of the
doctors of the defendants in providing adequate and proper
treatment. Aggrieved over the quantum of compensation fixed by
the trial court, the first appeal has been preferred by the
plaintiffs. The first appellate court, on an appreciation of the
materials available on record, both oral and documentary, and the
submissions put forth by the respective parties, was pleased to
modify the judgment and decree of the trial court by enhancing
the compensation to the plaintiffs at Rs.3,00,000/- and
accordingly disposed of the appeal. Challenging the same, the

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present second appeal has been laid by the defendants.

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9. At the time of admission of the second appeal, the
following substantial questions of law were formulated for
consideration.

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1) Whether the court below is correct in awarding
compensation by relying upon G.O. Ms. No.183, Health and
Family Welfare (R.1) Department, dated 11.09.2006?

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2) Whether the appellate court decree is justifiable in enhancing the compensation amount based on G.O. when it is not marked as a document before the trial court?

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3) Is not the appellate court erred in enhancing the compensation amount by misunderstanding the contention of the G.O.?"

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10.The suit has been laid by the plaintiffs seeking
compensation on account of the demise of Radha, the first
plaintiff's wife and the mother of the second plaintiff, as
according to the plaintiffs, the deceased Radha died due to the
carelessness and negligence of the doctors of the defendants'
hospital in providing proper and adequate treatment to her during
her hospitalisation for sterilisation and during post operational
period. From the pleas and the materials placed on record, it is
found that, and not disputed as such, the deceased Radha was
performed sterilization operation by the doctors of the
defendants on 30.04.1996 at Government Hospital, Erode, and the
operation has been declared as success. It is also not disputed
by the defendants that when Radha was admitted in the hospital
for sterilization operation, she had underwent medical check up
and a team of doctors were satisfied that she was in good health
and also a fit person to have sterilization. Therefore, even
according to the defendants, the deceased Radha was a fit person
to undergo sterilization operation in all aspects and according
to them, the operation performed was a successful one. However,
the fact remains that Radha subsequently died on 05.05.1996
during the hospitalisation and according to the plaintiffs after
the sterilization operation, the deceased experienced high
temperature and she was uneasy and though the abovesaid condition
of the deceased was reported to the doctors concerned, no
attention was paid to her other than the normal attention and
thereby the deceased' condition became serious and despite the
untold sufferings experienced by the deceased had been reported

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to the doctors, they had not bestowed their attention to her
properly and resultantly, according to the plaintiffs, the
deceased died due to the negligence and carelessness of the
doctors who had attended on her by not providing proper and
adequate treatment.

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11. In this connection, the defendants would claim that
the deceased Radha died due to Pyogenic Mentingitis i.e.
Septicemia. D.W.1 is the chief medical officer of the Government
Hospital, Erode, and though D.W.1 would claim that proper and
adequate treatment had been provided to the deceased and however,
the deceased had died due to Pyogenic Mentingitis i.e.
Septicemia, D.W.1 has clearly admitted that she was not the part
of the team who performed the sterilization operation on the
deceased and further admitted that she has no personal knowledge
as to how the operation was conducted and further also admitted
that she had seen the deceased Radha for the first time on
04.05.1996 and does not know as to what were the medicines
prescribed to her and also does not know directly as to her
condition thereafter and further admitted that in the case sheet
marked as Ex.B1 it has been reported that she was experiencing
temperature at 101o Fahrenheit and the same had been corrected
also and even the medicine prescribed to her in Ex.B1 had been
corrected and further also admitted that as regards the cause of
death of the deceased being Pyogenic Mentingitis i.e.
Septicemia, it is her evidence that the same could only be
explained by the special doctors and though, she being the head
of the Government Head Quarters hospital, Erode, she has admitted
that after the death of the deceased, the cause of the death had
not been ascertained by conducting the post mortem on the dead
body and the above being the evidence of D.W.1, as rightly
concluded by the courts below, no safe reliance could be attached
to the evidence of D.W.1 to hold that proper and adequate
treatment had been provided to the deceased Radha particularly
for the sufferings undergone by her after the sterilization
operation. The deceased Radha having died 5 days after the
sterilization operation and when she has been declared to be the
fit person to undergo the operation by the team of doctors, it is
for the doctors, who attended on her after the operation, to
explain as to why she had suddenly developed the pain and
sufferings and what are the reasons for the same and what
medicines had been offered to her with reference to the same.
However, when nothing has been disclosed by D.W.1 on the

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abovesaid aspects, the evidence of D.W.1 would be of no use to
sustain the defence version.

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12. D.W.2 is the medical officer who had performed the
sterilization operation on the deceased. She would claim that the
operation was conducted properly and the same is a successful
one. D.W.2 would further admit that the deceased was found to be
a fit person to undergo the sterilization operation and also
admitted that in Ex.A8, which is the death report issued by the
Superintendent of the Government Hospital, Erode, no reason has
been assigned for the death of Radha and further also admitted
that no postmortem was conducted on the dead body. Therefore,
when as per the evidence of D.W.2, the deceased was held to be a
fit person to undergo sterilization operation and though D.W.2
would claim the sterilization operation performed on the deceased
was a successful one, she is unable to explain as to how could
the deceased thereafter develop high temperature and uneasy
feelings and discomfort and why proper post care treatment had
not been provided to her by the doctors attached to the hospital.
When the real cause of death of the deceased could only be
gathered by conducting the postmortem, it is very strange on the
part of the doctors to allege that no postmortem was conducted on
the dead body particularly when they had asserted that the
deceased died unexpectedly due to Pyogenic Mentingitis i.e.
Septicemia. If that is the real cause of the death of the
deceased, when the same could be gathered from the postmortem
certificate, if it had been done, there is no proper explanation
on the part of the doctors as to why the postmortem had not been
conducted on the dead body. The same has also been accepted by
doctor Radha examined as D.W.3. D.W.3 is the doctor who was part
of the team of the sterilization operation conducted on the
deceased and she has admitted that the deceased was found to be a
fit person to undergo the sterilization operation. D.W.3 has
clearly admitted that only by conducting the postmortem, the
proper and real cause of death of the deceased could be
ascertained. Such being the evidence of D.W.3, when the case of
the defendants that the deceased had died unexpectedly after the
operation, that too, after 5 days, the hospital authorities
should have conducted the postmortem of the deceased to determine
the real cause of the death.

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13. D.W.4 is the doctor who claims to have given some
treatment to the deceased and according to him, on 05.05.1996 at

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about 5.15 A.M. when he examined her she was having some
breathing problem and she had no complaints of any pulse and
blood pressure, etc., and however, she had been reported to be
dead at 5.20 A.M. and would admit that he could not say as to
whether the deceased could have been saved if proper treatment
had been provided to her. Therefore, when the doctors who had
actually given treatment to the deceased during the post
operational period had not been examined by the doctors to prove
as to the nature of the treatment given to the deceased, what
were the sufferings undergone by the deceased during the relevant
period and when the doctors examined as D.Ws.1 to 4 are not clear
and able to say positively as to what actually were the
sufferings undergone by the deceased after the operation, what
was the special treatment provided to her to alleviate her
sufferings and when according to them the deceased had died
unexpectedly due to Pyogenic Mentingitis i.e. Septicemia it is
for the doctors to explain that the deceased had died despite the
post treatment provided to her. Even the alleged cause of death,
as spoken to by the doctors, as such cannot be accepted
straightaway as as above pointed out, as the real cause of death
of the deceased could only be ascertained by conducting the
postmortem of the deceased. Therefore, when it is found that the
deceased having died during post operational period i.e. 5 days
after the operation, on 05.05.1996, when the doctors examined in
the matter are unable to come out with the clear picture as to
how come the deceased had developed complications when she had
been declared to be a fit person to undergo the operation and
what were the medicines prescribed to the deceased for solving
her problems and when according to the plaintiffs no proper
treatment had been given to the deceased despite the complaints
suffered by her being brought to the knowledge of the doctors
concerned, the resultant position would be that, as held by the
courts below, the deceased had died only due to the negligence
and carelessness of the doctors in providing the necessary
treatment to her during the post operational period and though
the sterilization operation was declared to be a success one,
when the deceased is found to have been not provided with proper
post operation care and treatment and the deceased having
developed complications thereafter and the defendants having not
established that proper and adequate treatment had been provided
to the deceased during the relevant period i.e. from 30.04.1996
to 05.05.1996 till her demise and when the cause of death alleged
by the defendants for the deceased death is not established to be

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the true cause, particularly, the defendants having failed to
perform the postmortem of the deceased for the reason best known
to them, all put together, the determination of the courts below
that the deceased had died only due to the carelessness and
negligence of the defendants' doctors do not warrant any
interference as the abovesaid determination is found to be
correct and right based on the proper appreciation of the
materials available on record.

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14. The trail court had determined the compensation
payable to the plaintiffs at Rs.1,60,000/-, whereas the first
appellate court had determined the compensation payable to the
plaintiffs at Rs.3,00,000/- as claimed in the plaint.

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15. The first appellate court seems to have relied upon
the G.O. Ms. No.183, Health and Family Welfare (R.1) Department,
dated 11.09.2006. However, in my considered opinion, the
abovesaid G.O. may not be applicable to the case at hand, when
it is found that the deceased had died only due to the negligence
and carelessness of the defendants' doctors by not providing
proper and adequate treatment to her during the post operational
period i.e. from 30.04.1996 to 05.05.1996. Furthermore, the
abovesaid G.O. is found to have come into effect from 29.11.2005.
In any event, the first appellate court, after adverting to the
abovesaid G.O., after asserting that it is only the defendants'
carelessness and negligence which is the cause for the death of
the deceased, considering the age and income of the deceased,
particularly, there being no contra evidence, the deceased having
died at a very young age and the sufferings and pain undergone by
the plaintiffs due to the sudden demise of the deceased, all put
together, determined the compensation at Rs.3,00,000/- . The
quantum of compensation fixed by the first appellate court, in my
considered opinion, cannot be held to be excessive, particularly,
considering the age of the deceased, the earning capacity of the
deceased and the longevity of the deceased if she had remained
alive and therefore, the compensation of Rs.3,00,000/- awarded
to the plaintiffs is a reasonable compensation and I do not find
any valid reason to interfere with the same.

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16. There is one other aspect to be considered in this
matter. The trial court had granted a compensation of
Rs.1,60,000/- in favour of the plaintiffs, after holding that the
deceased had died only due to the negligence and carelessness of

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the doctors by not providing adequate treatment to her during the
post operation period. Challenging the same, the defendants have
not preferred any appeal. It is only the plaintiffs who had come
forward with the appeal seeking for enhancing the compensation.
Even in the said appeal, the defendants have not preferred any
cross objection. Therefore, when the determination of the trial
court that the deceased had died only due to the carelessness and
negligence of the doctors of the defendants by not providing
proper and adequate treatment during post operational period and
when the same had also been confirmed by the first appellate
court and the reasons assigned by the courts below for the same
being centering on factual matrix and not shown to be in any
manner perverse, illogical, irrational, I am not inclined to
interfere with the said determination at this stage of second
appeal. The substantial questions of law formulated are
centering around the G.O. Ms. No.183, Health and Family Welfare
(R.1) Department dated 11.09.2006. Further, as above pointed out,
though the first appellate court has referred to the abovesaid
G.O., it has not relied upon the abovesaid G.O. for enhancing the
compensation in favour of the plaintiffs. On the other hand, on
factual matrix, considering the age, earning capacity of the
deceased and the sufferings and pain that would be undergone by
the plaintiffs due to her sudden demise on various heads, rightly
enhanced the compensation payable to the plaintiffs at
Rs.3,00,000/-. No reason is warranted to interfere with the
abovesaid determination of the first appellate court. In my
considered opinion, no substantial question of law is involved in
the second appeal. Be that as it may, the substantial questions
of law formulated in the second appeal, for the reasons
aforestated, are accordingly answered in favour of the plaintiffs
and against the defendants.

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17. In support of his contentions, the plaintiffs'

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counsel, placed reliance upon the following decisions reported in 1) CDJ 2006 MHC 1749 (R. Muthu v. State of Tamil Nadu, rep by its secretary to Government & others)

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2) 2016-4-L.W.499 (S. Ganesan v. The Secretary to Government, Health Department, Govt. of Tamil Nadu)

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3) 2019-5-L.W. 755 (The District Collector, Salem and others vs. Ashokan and others)

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Similarly, in support of his various contentions, the Government
Advocate placed reliance upon the following decisions reported in

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1) CDJ 2009 MHC 5121 (Kanagavalli v. The Secretary to Government, Dept. of Health & others

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2) Civil Appeal No.5128 of 2002 2005 Scale 6 770 (State of Punjab v. Shiv Ram and others)

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3) 2014-2-LW 862 (Union of India (UOI) and Ors. vs. Vasavi Co-op Housing Society Ltd., and Ors)

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4) 1999 ACJ 454 (Shanta v. State of Andhra Pradesh and Ors.)

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5) (2008) 4 Supreme Court Cases 219 (Chokalingaswami Idol through its Hereditary Trustee R.N. Pillai vs. Gnanapragasam (dead) by Lrs

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The principals of law outlined in the abovesaid decisions are
taken into consideration and followed as applicable to the case
at hand.

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18. In conclusion, the judgment and decree dated
21.04.2007 passed in A.S.No.61/2006 on the file of the Principal
District Court, Erode, modifying the judgment and decree dated
08.07.2004 passed in O.S.No.407/1998 on the file of the Principal
Subordinate Court, Erode, are confirmed. Resultantly, the second
appeal is dismissed with costs. Consequently, connected
miscellaneous petitions are closed.

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 Sd/-

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 Assistant Registrar(CS-V)

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//True Copy//

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 Sub Assistant Registrar

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bga

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To

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1. The Principal District Judge,

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 Erode,

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2. The Principal Subordinate Court,

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Erode,

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+1cc to M/s.N.Manokaran, Advocate, S.R.No.16857

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+1cc to the Special Government Pleader(CS), S.R.No.17617

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S.A.No.1461 of 2008

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PA(CO)

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SB(22/09/2021)

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Joint Director of Health v. Rajendran (Died)

Case brief

What is this about?

What did the court decide?

Joint Director of Health v. Rajendran (Died)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Cases cited

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