Interest can be awarded in suit for recovery of Damages

Courts have also granted interest upon the damages awarded. Under Section 3 of the Interest Act, 1978 interest can be allowed as much in proceedings for recovery of damages as in proceedings for recovery of debts. The interest which is allowable is at a rate not exceeding the current rate of interest from the date of the notice till the date of institution of the proceedings. Further interest from the institution of the Suit is payable under Section 34 of the Code of Civil Procedure at the reasonable rate on the principal sum from the date of Suit until the date of the decree and at the rate not exceeding 6% per annum from the date of decree until payment.

167.Interest has been granted on the amount of damages even under common law. In the case of Perry Vs. Sidney (supra) it has been observed the compensation for inflation be also accounted for "because damages carry interest". In the case of Hayes Vs. James (supra) a rough estimate of the true value of the property at the time of the sale which resulted in the action for damages itself came to be granted by way of interest. 

Bombay High Court

Padam Chandra Singhi & Ors vs Dr. P.B. Desai & Ors on 2 September, 2011

Bench: R. S. Dalvi

1. Plaintiff No.1 is the husband of the original Plaintiff No.2 who suffered from cancer and was consequently admitted to the hospital of Defendants 3 to 7 being the Trustees of Bombay Hospital Trust. Plaintiff Nos.2(a) and 2(b) are the heirs of the original Plaintiff No.2 who has since expired. Defendant No.1 was the Honorary Surgeon attached to Bombay Hospital (BH) and was the head of the department of Oncology. Defendant No.2 was the Honorary Assistant Surgeon who assisted Defendant No.1. The Defendant No. 3 was the Houseman in charge of the CT Scan department in BH.
2. The Plaintiffs' case is that the original Plaintiff No.2 suffered from cancer since July 1977. She was under the treatment of one Dr. J.C. Paymaster in BH up to 1988 when Dr. Paymaster retired from BH. 2 S.1101.1989 (Judgment).sxw
She initially had breast cancer. She was operated upon for breast cancer in 1977. She thereafter suffered lung cancer in 1984. She was given the treatment of chemotherapy also under Dr. Paymaster in Mumbai. She was also treated for cancer in New York, USA in 1985. She was given hormonal therapy and chemotherapy treatment by certain two Doctors in New York, USA. It is the Plaintiffs' case that she was declared to be an inoperable case of cancer. In about 1987 she suffered cervical cancer. After receiving the aforesaid treatments she returned to Bombay. She had vaginal bleeding. Defendant No.2, who initially assisted Dr. Paymaster, knew her case. He advised her to be immediately hospitalized.
3. It is the Plaintiffs' case that Plaintiff No.1 then served as IAS Officer with the Government of Rajasthan. He admitted her to BH in first class. He desired the services of Defendant No.1 who had then stepped into shoes of Dr. Paymaster and was the head of Oncology department. He was informed that Defendant No.1 would separately charge his fees as per the schedule of BH and that other Doctors attached to Defendant No.1 will assist Defendant No.1 and will also charge fees according to the schedule of BH. The original Plaintiffs accepted and agreed to those terms. The Plaintiffs claim that consequently a valid contract was entered into between BH and the original Plaintiffs being Plaintiff No.1 and the original Plaintiff No.2.
4. Accordingly the original Plaintiff No.2 was admitted to BH. Defendant No.1 examined her and advised Exploratory Laprotomy. Certain investigations and tests were conducted upon his 3 S.1101.1989 (Judgment).sxw
instructions.
5. It is the case of the Plaintiffs that it was agreed between Defendant No.1 and the then Plaintiffs that Defendant No.1 will himself operate upon Plaintiff No.2. The original Plaintiff No.2 was admitted on 8th December 1987. Defendant No.1 advised Exploratory Laprotomy on 17th December 1987. The date of operation was fixed on 22nd December 1987 by Defendant No.1. It is the case of the Plaintiffs that it was made clear that only Defendant No.1 should operate and that Rajasthan Government would pay the necessary fees. It is their case that consent was given by original Plaintiff No.2 for the surgery to be performed by Defendant No.1. It is the Plaintiffs' case that but for the agreement and understanding between the then Plaintiffs and Defendant No.1 she would not have consented to the operation.
6. The Plaintiffs accordingly contend that there was an agreement between the then Plaintiffs and Defendant No.1 in consideration of the fees to be charged by Defendant No.1 for performing the surgery upon the original Plaintiff No.2 and for all post operation treatment thereafter. The Plaintiffs contend that the original Plaintiff No.2 gave her consent on 17th December 1987 in the name of Defendant No.1 for the surgery to be performed upon her by Defendant No.1.
7. It is the Plaintiffs' case that despite the contract between the then Plaintiffs and Defendant No.1, Defendant No.1 failed and neglected to operate upon the original Plaintiff No.2 and accordingly committed a breach of the contract by nonperformance. 4 S.1101.1989 (Judgment).sxw
8. It is the case of the Plaintiffs that the abdomen of the original Plaintiff No.2 was opened by Defendant No.2 as the assistant of Defendant No.1. The Defendant No.1 failed to perform surgery and only directed Defendant No.2 to stitch-up the abdomen after being contacted. He even disclaimed that the original Plaintiff No.2 was his patient.
9. Aside from claiming the contract between the parties the Plaintiffs claim that the Defendant No.1 was guilty of the tort of negligence in advising the operation though the Plaintiff No.2 was declared inoperable without considering the risk involved in the operation and then upon his advise for surgery failing to operate himself or render any post operation care and delegating the original Plaintiff No.2 to the care of Defendant No.2.
10.The plaint sets out the aforesaid case of the Plaintiffs in paras 2 to 5 of the plaint. The Plaintiff No.1 has similarly deposed. It would essentially have to be appreciated:
(i) whether or not there was a valid, binding, enforceable contract between the then Plaintiffs and Defendant No.1 which was breached and what kind of contract that was.
and
(ii) Whether Defendant No.1 was guilty of medical negligence in tort.
The Plaintiffs have pleaded the contract. Plaintiff No.1 has deposed about the circumstances leading to the contract and thereafter. From the pleadings read with the evidence the type of contract, if any, 5 S.1101.1989 (Judgment).sxw
entered into by and between the Plaintiffs and the Defendants would have to be appreciated in accordance with the Law of Contracts.
Similarly the Plaintiffs have pleaded tort. Plaintiff No.1 has deposed about the circumstances leading to the tort and its aftermath. From the pleadings read with the evidence it would have to be deciphered whether or not the Defendants committed a wrong in law and their liability for such wrong, if any.
11.The surgery of the original Plaintiff No.2 was wholly unsuccessful. It was realized upon her abdomen being opened that nothing further could be done. Her abdomen was stitched up. She was given treatment in the hospital thereafter. She remained in the hospital until 5th April 1988 when she was discharged and she went back to Rajasthan where she lived. She was then under the care of some Doctors until she expired on 26th February 1989. The Plaintiffs' case in tort upon medical negligence is essentially that the advise of Defendant No.1 itself was erroneous and was given without any care or caution despite having been shown the reports of the Doctors from the USA who had earlier treated the original Plaintiff No.2 and further that even if his opinion had to be carried out, which came to be accepted by the then Plaintiffs, the surgery advised by him was to be undertaken by himself since he was, in the opinion of the original Plaintiffs the best Oncology Surgeon at the relevant time whom they had specifically contracted with. Upon the complete nonperformance by Defendant No.1 of performing surgery or treating the original Plaintiff No.2 the Plaintiffs claim that BH itself through its Trustees were vicariously liable in tort for the negligence of Defendant No.1. 6 S.1101.1989 (Judgment).sxw
12.The Plaintiff No.1 complained not only to Trustees of BH, but also the Maharashtra Medical Council (MMC), the Police and later sued in respect of the breach of contract as well as in tort. The initial case of the Plaintiffs was not only against Defendant No.1 but also against Defendant No.2 and 3 and this was despite the fact that upon the complaints of Plaintiff No.1 Defendant No.2 also addressed the letter to him setting out some relevant facts of the case and giving his explanation thereto. It may be mentioned that though the entire case of the Plaintiffs upon the agreements in the aforesaid paragraphs 2 to 5 of the plaint and upon his further pleadings in the nature of evidence in paragraphs 6 to 9 of the plaint against Defendant No.1 and the explanation given by Defendant No.2 averred in para 10 of the plaint the Plaintiff No.1 sued all the three relevant Doctors being Defendant Nos.1,2 and 3, the Honorary Surgeon, the Honorary Assistant Surgeon and the Houseman respectively for the negligent act of all those Defendants. However the essential case of the Plaintiffs is against Defendant No.1. The Plaintiffs perhaps having realized their case, have dropped their case against Defendants 2 and 3.
13.The Plaintiffs claim damages for negligence upon which the original Plaintiff No.2 is stated to have suffered physical pain, mental agony and anguish. She also claims to have developed complications including intestinal fistula. The Plaintiffs further claim that even after discharge from the hospital and return to her residence the original Plaintiff No.2 had various complications which had to be nursed and attended to until she expired.
7 S.1101.1989 (Judgment).sxw
14.The Plaintiffs have claimed damages of Rs.2.25 lakhs for expenses of hospitalization, Doctors fees and other medical ancillary expenses and Rs.16 lakhs as damages for mental agony and anguish suffered by the Plaintiffs. The Plaintiffs have claimed further damages of both the aforesaid types in sum of Rs.1.90 lakhs and Rs. 3 lakhs after the filing of the suit until the original Plaintiff No.2 expired.
15.These damages are for breach of contract and for liability in tort. These damages in a total sum of Rs.23.75 lakhs are claimed jointly and severally from all the Defendants. The damages for breach of contract would be against only Defendant No.1 since the case of nonperformance of the contract is alleged only against Defendant No.1. The damages in tort are against all the Defendants, but pressed only against Defendant No.1 and consequently by way of vicarious liability against BH. The Plaintiffs have also claimed interest on the aforesaid damages @ 18% p.a.
16.All the Defendants have filed their written statements to the original plaint. The Plaintiffs carried out certain amendments to the plaint thereafter. Defendant No.1 has filed his additional written statement to the further amendments in the plaint. The other Defendants have not filed any further written statements. Mr. Setalwad on behalf of BH asserted that additional written statement was filed and sought to tender a copy. However a search of the records have shown no further written statement of BH filed in the suit. It may be taken, that BH has denied their liability to the Plaintiffs' claim even upon the amendments. The essential defence to be considered in the suit 8 S.1101.1989 (Judgment).sxw
is of Defendant No.1.
17.The case of Defendant No.1 is essentially of denial of the Plaintiffs' claim. It is his case that he had never met or examined the original Plaintiff No.2 prior to 17th December 1987. She was not his patient. She was not admitted to BH under his care. She was being treated by Defendant No.2. She was admitted under the name of Defendant No.2. The tests were performed at the instance of Defendant No.2. He had not instructed or advised in that behalf. He examined the original Plaintiff No.2 as a consultant only for the purpose of giving his opinion. Defendant No.1 denies having had any discussions with either of the original Plaintiffs. He does not recall the reports of the Doctors from the USA. He denies having even advised surgery for removal of the uterus of the original Plaintiff No.2. He denies that he undertook to perform the operation assisted by Defendant Nos.2 or 3 or otherwise. The Defendant No.1 has claimed that he had informed Defendant No.2 that he would be operating on 22nd December 1987 at BH whereupon Defendant No.2 also fixed the operation of the original Plaintiff No.2 on the same day with a view to seek his advise, if the need arose. He specifically claims that he had only one operation fixed on 22nd December 1987 in Operation Theater (O.T.) No.1 and was not asked to operate upon the original Plaintiff No.2 by either of the original Plaintiffs or by Defendant No.2. He denies that the surgery was performed under his instructions. He has also denied that Defendant No.2 or 3 ever came to OT No.1 when he was operating on 22nd December 1987 to call him to attend to the original Plaintiff No.2. He claims that no requests were made by any persons at any time to him to attend to the original Plaintiff No.2 9 S.1101.1989 (Judgment).sxw
whilst she was in the other OT. He, therefore, claims that he had attended to the original Plaintiff No.2 only on 17th December 1987. He claims that the original Plaintiff No.2 was at no time his patient as she was not admitted by him, at his instance or upon his knowledge or consent. He claims that she was attended to by Defendant No.2 alone. He, therefore, claims upon the principles of medical and professional ethics that he was prevented from attending to the original Plaintiff No.2 unless he was specifically requested in that behalf or unless she was specifically transferred or assigned to him by Defendant No.2 whose patient she was.
18.Defendant No.1 further claims that after he completed his own operation and was on the way out of O.T No.1 outside the corridor adjoining the O.T Defendant No.2 informed him of the state of the original Plaintiff No.2 that everything inside her abdomen was "plastered" and therefore, he suggested to Defendant No.2 that it would be advisable to close the abdomen. Defendant No.1 claims that Defendant No.2 was competent and capable of attending to and operating upon the patients independently which he did in this case also. He, therefore, claims that upon the said affairs stated by Defendant No.2 to him for the patient of Defendant No.2 he could only advise to close the abdomen of the patient which was the only alternative.
19.Defendant No.1 further claims that there was no occasion of attending the original Plaintiff No.2 on 22nd December 1987 or for rendering her any post operative care thereafter by him. He claims that the records of BH also show that the original Plaintiff No.2 was 10 S.1101.1989 (Judgment).sxw
the patient of Defendant No.2 alone and not his patient. He has alleged a policy of BH that only the name of the Honorary Surgeon who is a senior Surgeon would be recorded in the medical records of all first class patients such as the original Plaintiff No.2 and hence the documents of the original Plaintiff No.2 in BH are due to such practice/procedure/policy of the hospital. He claims to have put all the facts on record upon he being called upon by BH to answer the complaint of Plaintiff No.1 made against him to the Trustees in his letter dated 12th February 1988. He has refuted his liability in tort as well as in contract and consequently the damages claimed by the Plaintiffs.
20.In his additional written statement he has denied that there were any Doctors working under him but has stated that he was the consulting Surgeon in the Oncology department and other Doctors were subordinates to him. He has claimed that he would attend the patients who are admitted at his instance and/or request and he would advise patients referred to him by other Doctors. It is his case that he would not treat or deal with patients of any other Doctor except upon the request of such Doctor. He has again denied the agreements in the plaint initially denied by him in his original written statement.
21.The case of Defendant No.2 in his written statement is that the original Plaintiff No.2 was admitted under the name and care of Defendant No.1. He was only the assistant of Defendant No.1. He has disclaimed his liability in tort. He claims that he had spoken to Defendant No.1 and 3 and got the original Plaintiff No.2 admitted 11 S.1101.1989 (Judgment).sxw
under the unit head being Defendant No.1. He had examined the original Plaintiff No.2 upon her return from the USA as he had known her as a patient of Dr. Paymaster who had treated her earlier and of whom he was then assistant. When she developed vaginal bleeding on 6th December 1987 he had recommended her hospitalization. The original Plaintiffs had given consent for admission and treatment under the care of Defendant No.1. Consequently, he claims that the original Plaintiff No.2 got admitted to BH on 9th December 1987 in Room No.1005 under the supervision and control of Defendant No.1 in MRC first class. Defendant No.2 claims that the original Plaintiff No.2 was given admission by the Manager (Admission Authority) at BH one Mr. Sharma under the name and care of Defendant No.1.
22.It is his case that his patients were never admitted under the care of Defendant No.1. He claims that he had received 1/3rd of the fees of Defendant No.1. He claims that Defendant No.1 examined the original Plaintiff No.2 on 17th December 1987 clinically in Room No. 1005 MRS and advised removal of the uterus after discussion with the original Plaintiffs and in his absence. He claims that all routine tests were conducted in the hospital. He accepts the case of the Plaintiffs that the original Plaintiff No.2 was declared to be inoperable case on the basis of a biopsy of her cervix. He claims that Defendant No.1 had advised that there were chances of survival of the original Plaintiff No.2 after the surgery. He claims that he had given the entire details of the patient to Defendant No.1. He had told Defendant No.1 about the complexity of the case and had requested Defendant No.1 to manage the surgery himself. It is his further case 12 S.1101.1989 (Judgment).sxw
that Defendant No.1 suggested to him to fix up the case of the original Plaintiff No.2 on 22nd December 1987 when he had another case already fixed up for surgery. It is his case that he had personally met Defendant No.1 at the hospital. He had informed him that the original Plaintiffs insisted that the operation should be performed by Defendant No.1 only, which Defendant No.1 had agreed to do and hence it was fixed on 22nd December 1987 as per the confirmation given by Defendant No.1. He further claims that though Defendant No.1 directed him to take the assistance of another Doctor one Dr. Hegde he had explained to Defendant No.1 that the original Plaintiffs wanted him alone to perform the surgery. It is his case that, therefore, he had taken up the case in OT No.2 on 22nd December 1987.
23.It is the further case of Defendant No.2 that he opened the abdomen of the original Plaintiff No.2 upon epidural anesthesia administered by Dr. Rashmi Kotak, the Anesthetist. He found adhesions and ascities. He had sent Defendant No.3 to call Defendant No.1 from OT.No.1, but Defendant No.1 did not come. He personally requested him to come and see the original Plaintiff No.2. He told Defendant No.1 that everything in her abdomen was totally plastered and full of ascities. It is his case that upon being so informed Defendant No. 1 asked him to close the abdomen without coming into OT No.2. He claims that the original Plaintiff No.2 was in intolerable pain. He was only an assistant of Defendant No.2. It is his further case that the consent for surgery was also not given in his name. It is his case that the patient was opened on the instructions of Defendant No.1 according to his convenience. The entire procedure was fixed up by 13 S.1101.1989 (Judgment).sxw
Defendant No.1. Defendant Nos. 2 and 3 only followed the instructions of Defendant No.1. The entire surgery was under the supervision and control of Defendant No.1. It is his case that the surgery was performed upon the instructions of Defendant No.1 as advised by Defendant No.1 and similarly the closure of the abdomen was done under the instructions of Defendant No.1. He claims that he has carried out his duties as an assistant of Defendant No.1. He claims to have attended to the original Plaintiff No.2 for 3 months for post operation care with due diligence and care. He, therefore, refutes the Plaintiffs' case that he was negligent in performing his duty to the patient or was jointly or severally liable in tort for damages. Defendant No.2 has further claimed that Defendant No.1 neither came inside the operation theater though he had finished his surgery in OT No.1 nor did he attend to the original Plaintiff No.2 after the surgery until she was discharged after 3 months. He alone saw her twice a day as an Assistant Surgeon and gave her all post operative care required.
24.It has been the case of the other Defendants who are the trustees of BH that the Doctors who are attached to BH being Defendants 1, 2 and 3 are independent professionals and are not their servants and agents. They are, therefore, not vicariously liable for the negligence of Defendants 1, 2 and 3. The original Plaintiffs selected and consulted their own Doctors directly for the services to be rendered by them to the Plaintiffs. They claim that they have nothing to do with the treatment given to the original Plaintiff No.2 as that treatment was exclusively in charge of Defendants 1, 2 and 3. They have consequently refuted their liability in any manner to the 14 S.1101.1989 (Judgment).sxw
Plaintiffs.
25.Upon the pleadings of all the parties the following issues came to be framed by Justice N. Arumugham, as he then was, on 12th November 1997 and are answered as follows:
ISSUES FINDINGS
1. Whether there was any contract entered Yes- there was a into between the defendant nos. 1 and 2 contract between the with the plaintiffs regarding the original Plaintiffs and treatment given to the 2nd plaintiff. Defendant No.1.
2. Whether there was any mis-performance No - there was no and negligence on the part of the negligence in tort. defendant nos.1 and 2 in conducting the
surgery on the deceased-plaintiff.
3. Whether the plaintiffs are entitled to Yes - for breach of
claim any damages from the contract. defendants.
4. Whether the suit is sustainable in law Yes
against all the defendants.
5. Whether there was any cause of action Yes for the suit to be filed against the
defendants.
6. Whether the defendant nos.4 to 13 are No liable to pay the suit claim. If so, to what extent.
7. Whether the defendant no.3 is a proper
Does not arise.
and necessary party to the suit.
8. Whether the defendant nos.4 to 13 are No vicariously liable for the suit claim.
9. To what reliefs, if any, which the As per final order
plaintiffs are entitled to ?
15 S.1101.1989 (Judgment).sxw
26.The original Plaintiff No.2 expired prior to the commencement of the trial. Plaintiff No.1 has examined himself. Plaintiff No.1 has also examined two employees of BH to produce certain records and in respect of the contract between the parties and the surgery. He has further examined another Doctor as an expert to prove his case in tort. He has examined a nurse who served the original Plaintiff No.2 upon her return to her residence in Rajasthan until her death to prove the nursing care and nursing expenses. Defendant No.1 examined himself and the Anesthetist who administered anesthesia to the original Plaintiff No.2 at the time of her surgery. Defendant No.2 has not examined himself, but has cross examined the witnesses of the Plaintiffs as well as Defendant No.1. Defendant No. 3 has not contested the suit at all. The remaining Defendants who are the trustees of BH have on behalf of BH also cross examined the witnesses of the Plaintiffs as well as Defendant No.1 but have not examined themselves or led any evidence on behalf of BH.
27.The essential case of the Plaintiffs is against Defendant No.1.
28.The three aspects to be considered in the suit are:
(i)The contract between the original Plaintiffs on the one hand and Defendant No.1 on the other.
(ii)The tort of medical negligence of Defendants 1 and 2.
(iii)The vicarious liability, if any, of BH consequent upon the liability in tort, if any, of Defendants 1 and 2.
If the contract is proved,the breach if any, would have to be seen. The remedy for such breach would be in damages the damages 16 S.1101.1989 (Judgment).sxw
would have to be ascertained. Hence issue Nos.1 and 3 must be considered first.
The case in tort and the consequent vicarious liability would be required to be seen thereafter. Issue Nos. 2 and 6 must be considered thereafter. The other issues would follow.
29.Issue No.1 The oral evidence of the Plaintiff No.1 with regard to :
what transpired in Mumbai upon the initial vaginal bleeding of his wife and her consequent hospitalization is much the same as in his pleadings recited above, his various complaints to the various authorities including the trustees of BH, MMC and the police, and in the criminal complaint filed against Defendants 1,2 and 3.
30.The Plaintiff No.1 has relied upon the documents of BH to show the contract entered into by the Plaintiff with BH. The Plaintiff has claimed the oral contract with Defendant No.1. It is argued on his behalf that the contract can also be implied from the documentary evidence. It has to be seen whether in fact the contract could be made out from its acceptance by performance or from other intrinsic evidence. The intrinsic evidence would be in the admitted work done by Defendant No.1 - the only work being clinically examining original Plaintiff No.2 in Room No.1005 MRC on 17 th December 1987 - and the charges levied upon the original Plaintiffs as the fees of Defendant No.1. The test of the Plaintiffs' case with regard to the contract with Defendant No.1 would be also reflected in the oral evidence of Defendant No.1.
31.The documentary evidence of the initial contract is required to be 17 S.1101.1989 (Judgment).sxw
first examined. The initial note of Defendant No.2 is dated 8th December 1987. It is addressed to the Chief Medical Officer (CMO). It requests admission of the original Plaintiff No.2 in MRC First Class. It describes her condition. It bears certain endorsements of the hospital authorities also of 8th December 1987. It has been marked Exhibit-B in evidence upon it having been produced from the hospital records initially in the inquiry which was conducted by the MMC against Defendant No.1 upon the complaint of the original Plaintiffs. It is also a part of the case papers of the original Plaintiff No.2 marked Exhibit-H in evidence which shall be considered presently.
32.The other note is of the Manager (Admission Authority) at BH one Mr. Sharma who has been examined as the Plaintiff's witness No.2. The note is dated 9th December 1987 also addressed to the CMO. It states that the patient is referred by the Government of Rajasthan and hence no deposit be taken. It specifically directs the admission of the original Plaintiff No.2 under Defendant No.1. It bears the endorsement of the hospital authorities for admission in the specified room. This corroborates the oral evidence of the Plaintiff No.1 that he had met Mr. Sharma and had informed him of the predicament of his wife and his insistence upon being under the care of only Defendant No.1 so that this note was written. This note is also reflected in the hospital records produced by BH being the case papers of the original Plaintiff No.2 marked Exhibit-H.
33.It may be mentioned that the oral case of the Plaintiff of how the contract was entered into being orally denied by Defendant No.1 18 S.1101.1989 (Judgment).sxw
would have to be seen from the documentary evidence, the oral evidence being excluded under the provisions of Section 91 of the Indian Evidence Act.
34.The case papers Exhibit-H show the initial admission form with the various endorsements thereon. The relevant names of the Doctors in the respective columns show Defendant No.1 as the honorary Doctor and Defendant No.3 as the Houseman (house Surgeon/house physician). It does not show the name of Defendant No.2 at all. Despite the note of Defendant No.2 the original Plaintiff No.2 was, therefore, not admitted in the name of Defendant No.2 as the patient of Defendant No.2 or under his care and treatment. The consent of the Plaintiff in the prescribed format is signed by the original Plaintiff No.2 herself. The evidence of the Plaintiff No.1 that the consent was given only by the original Plaintiff No.2 to be under the care of Defendant No.1 and to be operated by Defendant No.1 is seen in the form itself at page No.1 of Exhibit-H. The case of the Plaintiffs that no consent in the operation was given in the name of Defendant No.2 or to Defendant No.2 is accordingly reflected in the admission form itself showing the consent signed by the original Plaintiff No.2 at the foot thereof. Plaintiff No.1 has identified the signature of his wife the original Plaintiff No.2, which is not denied by any of the parties as also his own signature on the reverse of the form. The name of the operation in the form is shown to be Exploratory Laprotomy and the date of the operation is shown to be 22nd December 1987. The consent itself is signed on 22nd December 1987, the date of the operation.
19 S.1101.1989 (Judgment).sxw
35.All the case papers starting from the admission sheet itself in Exhibit-H show the original Plaintiff No.2 referred by or under the care of Defendant No.1 - to wit - she is referred to Dr. E. Borges by Defendant No.3, the houseman, for "fitness for surgery" by Defendant No.1 on page 4 of Exhibit-H.
36.The case papers show the treatment being given to the original Plaintiff No.2 from 9th December 1987. She has been seen by Defendant No.2 on 9/12/1987, 12/12/1987, 16/12/1987, 21/12/1987, 22/12/1987, the date of surgery and continuously thereafter. The endorsement of 12/12/1987 (wrongly typed as 12/11/87) shows the endorsement of Defendant No.2 to take the opinion of Defendant No.1 after CT Scan. The endorsement of 16th December 1987 shows the endorsement of Defendant No.2 to take appointment for pulmonary function. The endorsement of 17th December 1987 shows Defendant No.1 having seen the case and advised exploration. It further shows that the patient was for exploration next week. The endorsement of 18th December 1987 shows the patient referred to Dr. Borges for fitness. The endorsement of 19th December 1987 shows that the patient was referred for fitness. The endorsement of 20th December 1987 shows the medical position of the patient and the tests done. The endorsement of 21 st December 1987 shows the pre-surgical endorsement to the house- Surgeon and the various medications given to the patient for Exploratory Laprotomy. The surgery having been performed on 22nd December 1987, the endorsement shows that the patient was seen by Defendant No.2. It is an admitted fact that thereafter she was never seen by Defendant No.1 and was continuously seen by 20 S.1101.1989 (Judgment).sxw
Defendant No.2 until her discharge.
37.The operation record of the hospital at page 6 of Exhibit-H shows Exploratory Laprotomy done under an epidural anesthesia administered by Dr. Rashmi Kotak, the Anesthetist shows Defendant No.2 as the Surgeon and Defendant No.3 as his assistant.
38.Upon such documentary evidence the oral evidence of Defendant No.1 would be required to be appreciated.
39.His oral evidence shows that Defendant No.2 was not working with him, but only occasionally assisted him. In his cross examination he has admitted that at one point in time after Dr. Paymaster retired Defendant No.2 was appointed assistant Surgeon to assist him and occasionally used to assist him in surgery. Defendants 1 and 2, therefore, could have constituted a pair of Doctors being a senior honorary Surgeon and assistant Surgeons respectively. Further in his cross examination he has admitted that he had no assistant Surgeon before Defendant No.2. This, therefore, shows that Defendant No.2, was at least, at some point in time an assistant Surgeon who assisted him in surgery.
40.It must be remembered that the record of BH in the medical case papers Exhibit-H itself shows that the Defendant No.2 as well as Mr. Sharma, the Accounts Supervisor of BH at the relevant time had written to the CMO for admission of the original Plaintiff No.2. Mr. Sharma's note specifically shows that it was to be as the patient of Defendant No.1. The oral evidence of Defendant No.1 in his cross 21 S.1101.1989 (Judgment).sxw
examination shows that Mr. Sharma, the admission officer, would admit patients under his direct care after taking his approval on telephone and that he would not issue any admission slip under his signature in writing as the patients would go to BH for admission. The note of Mr. Sharma which is admittedly on record being a document produced by BH in the case papers Exhibit-H showing the name of Defendant No.1, therefore, makes it clear that the original Plaintiffs selected Defendant No.1 directly as their senior honorary Surgeon. The acceptance, if any, by Defendant No.1 was orally given on the telephone to Mr. Sharma. He may not have issued the acceptance in writing under his signature by way of any admission slip. Mr. Sharma is shown to have acted in the normal course of business of the hospital for admitting patients under the names of such Doctors whom the patients had selected and who were approved by the Doctor.
41.It must be appreciated that a contract of a Doctor with a patient can only be orally made or implied upon circumstances of the case and cannot be by way of written agreement. Its acceptance can be evidenced by actual performance alone. It may be mentioned that neither Defendant No.1 nor BH has made any allegations against Mr. Sharma for having accepted Defendant No.1 as the Honorary Surgeon before having admitted the original Plaintiff No.2 as the patient of Defendant No.1. Consequently, the contract between the parties sought to be made out by the Plaintiffs would have to be seen from the conduct of Defendant No.1 thereafter to see whether there was any acceptance by performance so that the oral contract is proved or to see whether there could have been an implied contract 22 S.1101.1989 (Judgment).sxw
between the original Plaintiffs and Defendant No.1.
42.Defendant No.1 has made out a case of certain procedure/policy of BH of entering the senior Doctor's name on the patient's record chart whether or not a particular patient is admitted under that Doctor or that Doctor attends to that patient. He has claimed that such a policy did not make such a patient a patient of such a Doctor. It may be mentioned that the case of this specific policy of BH has been taken by Defendant No.1 and not the trustees of BH in their written statement. Thus he claims that because of the policy of BH the name of Defendant No.2 could not have been put as a Doctor for the patient who was admitted; only the honorary Surgeon with whom Defendant No.2 worked could have his name as the Surgeon of the patient. Defendant No.1 claims that he did not even know about this policy of the BH until after the original Plaintiffs raised disputes in respect of the treatment of the original Plaintiff No.2 and made complaints against him. Though he claims that because of the policy of BH his name came to be inserted in the records of BH as the honorary Surgeon for the original Plaintiff No.2, the trustees of the BH in their written statement have not claimed any such policy. The purpose and object of the policy, if any, has also not been shown. In fact Counsel on behalf of BH conceded that he was at sea why such a policy would have at all been in force. It may be mentioned that, if a hospital has a policy that a patient, albeit in the first class or even otherwise, must have the services of a senior honorary Surgeon together with the services of his or her own selected Doctor who is yet a junior Surgeon, it can only be with the ultimate end to provide the patients the best medical acumen and service. It would be to see 23 S.1101.1989 (Judgment).sxw
that those patients, at least in the first class, would not have the services of any secondary quality. Hence even if they are admitted under the care and in the name of a junior Surgeon or an assistant Surgeon, they would necessarily have to have the services of a senior honorary Surgeon such as Defendant No.1. It cannot be presumed that such a policy could be for any purpose other than the most beneficent to the patient. It cannot be presumed that such a policy would be in effect, if at all it were to be so, only to allow senior Doctors and senior honorary Surgeons to be paid even though they did not treat the patients and even if only the junior Doctor attended to the patients. The purpose of the policy set out by Defendant No.1, as having been made known to him only after the dispute in the suit was commenced, is not backed by the defence of the trustees of BH at all. It could not even be explained by them. Defendant No.1 has not shown the source of his knowledge of such a policy, nobly instituted or ignobly practiced. For want of any defence by the trustees of BH of any such policy the defence of Defendant No.1 of the policy of BH has to be ruled out. Upon the specific case of the trustees of BH that the original Plaintiffs had selected and consulted Defendants 1, 2 and even 3 directly in para 4 of their written statement, the contract between the original Plaintiffs on the one hand and the 3 Doctors on the other would have to be ascertained, the defence of the policy of BH taken by Defendant No.1 notwithstanding.
43.It may be mentioned that, if there was a policy of BH relating to the appointment of senior honorary Surgeons along with junior Doctors for all patients in the first class, the knowledge of such a policy must 24 S.1101.1989 (Judgment).sxw
be imputed upon all such senior honorary Surgeons or Doctors. Defendant No.1 claims that he learnt of this policy being the rules and regulations of BH after 22nd December 1987, the date of the surgery of the original Plaintiff No.2 and during her hospital stay. He claims that those rules and regulations were not communicated to him in writing by BH. Upon the Plaintiffs' complaint he was called upon to reply. He claims that it is at that time that BH sent letters regarding the admission policy to him. He has not produced any of those letters sent to him. He has however replied to the Chairman and Executing Directors of BH regarding the complaint made by the original Plaintiffs against him which he was called upon to explain. In that reply he has not referred to any policy of BH or the rules and regulations of BH under which any senior honorary Surgeons were ipso facto appointed by mere insertion of their names in the records as the honorary Doctors of the patients. In his reply marked Exhibit- C in evidence he has refuted his liability to the original Plaintiff No.2 as she was not his patient and was only required to opine once upon her problem. He has requested the administration not to admit patients in his own name when they were patients of any other Doctors. Since he has himself has not shown any policy or rules and regulations of BH none can be imputed upon BH. Since BH has not shown any such policy or any rules and regulations in that behalf the appointment of Defendant No.1 cannot be taken to be under any such policy.
44.To prove the policy alleged by Defendant No.1 he deposed in his cross examination that there were 4 or 5 patients' files who were admitted and managed by Defendant No.2 independently but under 25 S.1101.1989 (Judgment).sxw
the name of Defendant No.1 because of the hospital's policy. He has not produced any of those files also. His cross examination shows no recollection of any patients admitted to BH by other Surgeons in his name also. Similarly his cross examination shows that he was not aware of any other patient admitted by any other Surgeons independently, but in his name.
45.In fact in support of the case of a policy hitherto unknown and un- shown, made out by the Defendant No.1, he has not produced evidence of any illustration of any other Doctor who was similarly shown as a honorary Surgeon merely on paper when another junior Doctor or assistant Surgeon independently admitted and treated any other patient.
46.It is a salutary principle of the law of evidence that a person who alleges a particular fact to his knowledge has to prove that fact under Section 106 of the Indian Evidence Act. Defendant No.1 has alleged the fact of the policy of BH. He has not proved any such policy by producing the policy itself or the rules and regulations, the letters that he claims were written to him by BH with regard to the policy or even sought to prove the policy by way of illustration.
47. An intrinsic evidence is the name tag of Defendant No.1 outside the door of the room of original Plaintiff No.2. Such a name tag is stated to have been placed. That aspect appears to be in order. This also shows that the note of Mr. Sharma for admitting the original Plaintiff No.2 under Defendant No.1 has in fact been complied. Of course Defendant No.2, the busy senior Surgeon that he was, may 26 S.1101.1989 (Judgment).sxw
not have noticed his name tag on the door.
48.Defendant No.1 claims that he was only called, but once, by Defendant No.2 to give a second opinion for a patient of Defendant No.2, the original Plaintiff No.2. Consequently, he attended upon her only on 17th December 1987. He, therefore, claims that the case papers of the earlier dates do not bear any reference to him. The decision to take his opinion was recorded on 11th December 1987 and he attended on 17th December 1987. The endorsement in the case papers Exhibit-H of 17th December 1987 in the handwriting of Defendant No.2 shows "seen the case and advised exploration". Another endorsement of the same date in the same handwriting shows "patient is for exploration next week". Defendant No.1 claims that he was only called for his opinion. He gave his opinion advising exploration. He was the senior most honorary Surgeon of Oncology unit at that time. He is not shown to have been paid his fees for his opinion at all in the original bill for the charges of Plaintiff No.1 for the hospitalization as also the surgery marked Exhibit-N in evidence. It would be inconceivable for Defendant No.1 not to charge for his opinion, if he had given one. If he was only called for an opinion he would charge only for the opinion. In that case the surgery which he claims was required to be performed by Defendant No.2 would show charges incurred for the surgery done by Defendant No.2 as per the schedule of fees of BH. The original bill Exhibit-N instead shows the charges for surgery specifically in the name of Defendant No.1 at the rate then applicable and charged by Defendant No.1 and allowed to by BH; it does not show any charge for any opinion of any Consultant Surgeon. It must be appreciated that the charge for opinion, if any, to perform exploration would be included in the 27 S.1101.1989 (Judgment).sxw
surgery charge itself if surgery was to be performed.
49.The schedule of fees fixed by BH at the relevant time for senior honorary Surgeons was Rs.5000/-. The assistant Surgeon was entitled to charge 1/3rd of that fee. Pertinently the charge of Defendant No.2 for the surgery specifically against the name of Defendant No.2 is Rs.1667/- which is a 1/3rd of a fees of the honorary Doctor, Defendant No.1. Similarly the schedule of fees showing charges of the Anesthetist is 1/3rd of combined fees of honorary Doctor and the assistant Surgeon. The fees of Dr. R. Kotak, the Anesthetist against her name is shown to be Rs.2222/- precisely 3rd of Rs.5000/- plus Rs.1667/- being 1/3rd of Rs.6667/- i.e. Rs. 2222/-. This is the largest single circumstantial evidence of the fact of Defendant No.1 was the honorary Surgeon for the surgery of the original Plaintiff No.2 as contained in the original bill of BH marked Exhibit-N in evidence. His fees of the surgery coupled with the total absence of his fees for his opinion makes it conclusively clear that he was the honorary Surgeon for the original Plaintiff No.2. The original Plaintiff No.2 was admitted under him. The contract between the two parties - Defendant No.1 being the honorary Doctor of the original Plaintiff No.2 is, therefore, made out.
50.Besides, Defendant No.1 has claimed that he was called for by Defendant No.2 and not by the patient. The hospital records show, and it is an admitted fact, that at the time Defendant No.1 attended to the original Plaintiff No.2 in her room, Defendant No.2 was not present. It is not understood how that would be the position if only Defendant No.2 had called upon Defendant No.1 for the purpose of 28 S.1101.1989 (Judgment).sxw
an opinion on that date.
51.Upon the case of the Plaintiffs that there was such a contract between the parties and upon the case of Defendant No.1 that there was no such contract, the admitted conduct of Defendant No.1 after he saw the original Plaintiff No.2 on 17th December 1987 and advised exploration would have to be seen. That conduct will be a key to see whether the Defendant No.1 accepted the offer of original Plaintiffs to be their honorary Surgeon and to perform the surgery upon the original Plaintiff No.2 as per his own advice. This would be best appreciated from the evidence of Defendant No.1 himself showing his meetings with Defendant No.2 after his advice on 17th December 1987 and until after the surgery which was performed on 22nd December 1987. Defendant No.1 has admitted in his cross examination that Defendant No.2 had phoned him for his opinion as "this patient has come from America and the relatives were keen to have my opinion". He has also admitted that between 17th December 1987 and 22nd December 1987 Defendant No.2 had met him and told him about the operation and also that the patient had come from America and the patient's relatives were keen that he should be around her, if any help is needed. However Defendant No. 1 deposed by clarifying that at no point Defendant No.2 asked him to perform the operation. He has also admitted in his cross examination that between 17th December 1987 and 22nd December 1987 Defendant No.2 had telephoned him and also met him once in BH complex about the operation of the original Plaintiff No.2. He has further specifically admitted that he told Defendant No.2 that on 22nd December 1987 he had "another surgical case to be done" and 29 S.1101.1989 (Judgment).sxw
that he would be around if any help was needed. This admission confirms the case of Defendant No.2 made out from the inception.
52.The admitted related facts of the work of Defendant No.1 becomes important to consider. Defendant No.1 was to be away from BH between 17th December 1987 and 22nd December 1987. Another surgery of Defendant No.1 was fixed in OT No.1 on 22 nd December 1987. The operation of original Plaintiff No.2 was also fixed on 22nd December 1987. That was in OT No.2. This is another circumstantial evidence to show the requirement of Plaintiffs and the acceptance of Defendant No.1 that he would be their honorary Doctor. Being a Surgeon he would himself perform surgery or at least be around, if help was required. The admission that he had met Defendant No.2 and had assured Defendant No.2 that he would be around, if any help was required and accordingly the surgery of the original Plaintiff No.2 came to be fixed 5 days after the opinion given by him when he would be in the adjoining OT would show the need for him to care for the patient either by performing surgery himself or at least by "being around".
53.Mr. Doctor on behalf of Defendant No.1 placed much reliance upon the letter of original Plaintiff No.1 marked Exhibit 1 in evidence upon his admission in his cross-examination. The letter dated 19.02.1988 written by Plaintiff No.1 to Defendant No.2 does show that he had requested Defendant No.1, "to do operation" or "at least be available at the time of operation". Holding on to the expression "at least be available at the time of operation" by Defendant No.1 to make out a case that he should at least by "around" does not make a 30 S.1101.1989 (Judgment).sxw
novation of the contract. The contract stands as per its terms. It is a contract between the patient and the surgeon relating to a surgery to be performed of a given nature on given day by that surgeon. The letter shows the leeway made by the patient or her relative in view of the standing and position of the doctor not to actually perform the surgery but at least be available at that time.
54.In this scenario it has been the Plaintiffs' case that on 22nd December 1987 both the OTs in BH were booked in the name of Defendant No. 1, a case which he has refuted. This aspect, therefore, would have to be separately considered.

55.The evidence of P.W.3, the clerk in the OTs of BH shows one register got proved through this witness. That is one of the two registers maintained in the OTs. It has been marked Exhibit-Q in the evidence upon the witness identifying and describing the register and stating how it is maintained in the ordinary course of the business of BH. The witness, however deposed that there is one more register maintained by the operation sister in the OT. Whereas the register maintained by the witness Exhibit-Q is termed as Register No.I, the register maintained by the sister is termed register No.IV The same witness had deposed before the MMC and had .
identified both the registers. In the evidence in this case the copies of those registers were produced by the Plaintiffs. These were the copies of the original records of BH. One of the registers being register No.I was admitted by Defendant No.1 as well as BH and was marked as Exhibit-Q. The copy of the other register was not admitted. P.W. 3 was unable to remember the evidence given by him 31 S.1101.1989 (Judgment).sxw
in the MMC inquiry about the other register which was maintained by the sister though copy of the register IV for the period between 23rd April 1986 to 29th May 1987 was shown to him. Upon the objection taken for exhibiting the copy of register IV it did not come to be exhibited as evidence on the record of this suit.
56.BH was called upon to produce several documents in the MMC inquiry. BH produced some of the documents and failed to produce the others. Register IV was produced by BH from the period 23 rd April 1987 to 29th May 1987. This was for a period prior to the relevant period in this suit and in that inquiry. The same witness had identified the register produced for the earlier period as the register maintained by the operation sister in the OT in the normal course of the conduct of the hospital. The same register No.IV for the later period which was the relevant period was not produced by BH. BH has conducted an inquiry with regard to the missing documents. BH has instead produced the record of the inquiry. BH has produced certain records including the proceedings in the inquiry and the ultimate report of that inquiry as documents marked Exhibits-Z-1 to Z-7. These are the documents of the hospital produced by itself. None has challenged any of these as the documents of the hospital. Amongst these documents is inquiry conducted by three persons appointed as a Board dated 30th April 1990 instituted by the Executive Director, BH dated 11th April 1990 and the report of the inquiry marked as Exhibits-Z-5 and Z-6. The inquiry which was instituted was upon the report that the operation register maintained by the Senior Assistant of CST pertaining to the period between 13th October 1987 and 17th October 1988 was found 32 S.1101.1989 (Judgment).sxw
missing when the search was conducted in April 1990. The report of the inquiry shows that the registers were kept in an open shelf. No security was provided and when the operation is performed the OT staff is busy. All the OT registers were available except for the above period. All these registers were required everyday. In the past there has been no theft of the operation registers or other documents. Only the relevant register was found missing. The exact date of the loss could not be detected. The conclusion of the inquiry drawn by the board was that the relevant operation register pertaining to the period between 13th October 1987 and 17th October 1988 had been removed from the OT of BH by some one who might be in some way connected/interested in the entries made in that register. It is surprising that BH who had conducted the inquiry well prior to the cross examination of P.W.3 could have objected to the production of the copy of the register. It is not for Defendants 1 and 2 to object the production of this document except for the purpose of not bringing the truth on record, if there being any such objection. They are independent Doctors. They are not concerned with the OT registers. It is for the Plaintiffs to rely upon the register and for the hospital to produce it just as is done with the medical record of the original Plaintiff No.2, Exhibit-H. One of the registers is produced and the other was not. The xerox copy of one register, admitted as an admitted document has been marked exhibit. The xerox copy of the other register has been objected to be marked despite the conclusion that it was missing and a further conclusion that it could have been removed by an interested party. It may be mentioned that this is the most fit case for production of document by secondary evidence. The copies of the OT registers initially produced in the MMC and 33 S.1101.1989 (Judgment).sxw
later found to be missing was marked "X-3 (colly)" for identification. It is surprising that one of the registers has been allowed to be marked Exhibit-Q and the other register has been so resisted for being marked in evidence. That is the register which was missing. When admittedly the original document once produced in evidence before any forum has been found missing a copy of the document must be marked on record as secondary evidence. No party has refuted that the copy of the OT register No.IV is an incorrect and fabricated copy. It has only been contended that because the original register has been missing the copy cannot be marked. This is an absurd contention. That would mean that any original document which is required by the Court to be seen for ascertaining the truth of the case can be got missing by any interested party and its copy earlier legitimately taken out and even used in earlier proceedings cannot be marked as document on record. In fact it is for such documents that the law relating to proof of documents by secondary evidence is specifically enacted.
57.It may be mentioned that under Section 65(c) of the Indian Evidence Act when an original document has been destroyed or lost and cannot be produced within a reasonable time, secondary evidence of its contents is admissible. The cross examination of P.W. 3 has shown that the secondary evidence of the contents of the OT register No.IV as the register maintained by the operation sister in the OT. P.W. 3 could not explain why the register Exhibit-Q is called register No.I. He could not remember whether there were any other registers like that register maintained in the hospital. He was shown his own evidence given before the MMC to refresh his memory. He 34 S.1101.1989 (Judgment).sxw
remembered about the other register maintained by the operation sister. He was shown register No.IV for the earlier period. He stated that it was maintained by the sister. Of course he would not remember the evidence given by him 12 years ago, but the relevant part of the evidence has been reproduced in the evidence recorded by the learned Judge in this case. Upon such evidence which the witness has not refuted and upon BH showing that the very document has been misplaced, the photo copy of the document as secondary evidence of its contents has to be admitted as evidence. The register initially marked "X-3" in evidence is, therefore, required to be marked as an exhibit and to be read in evidence as documentary evidence in this suit. It is accordingly marked Exhibit- Q-1.
58.Exhibit-Q which is OT register No.I, shows inter alia two surgeries on 22nd December 1987; one is of Mr. Oswal Dharamchand which is a Thoractomy for which his Surgeon is shown to be Defendant No.1 and first assistant is shown to be one Dr. Hegde. On the same day the very next entry is of the original Plaintiff No.2. Exploratory Laprotomy is the operation performed upon her and the Surgeon is shown to be Defendant No.2 and the first assistant is shown to be Defendant No.3. This is the register maintained by P.W.3. His oral evidence shows that he keeps a record of the medicines and injections used in the operation, the period of the operation and the charges for the same. He has described the columns of the register that he fills in upon seeing the admission form of the patient. Other columns are filled in after the operation was over and after asking the assistant Surgeon. He has filled in the column showing the 35 S.1101.1989 (Judgment).sxw
Surgeon and the assistant Surgeon upon seeing what actually transpired. He has shown Defendant No.2 as the Surgeon because he had himself seen him performing the operation. This register, therefore, correctly shows what actually transpired. It, therefore, correctly shows that Defendant No.2 performed the operation and not Defendant No.1. Similarly from the entry above the entry of the original Plaintiff No.2, it is seen that Defendant No.1 performed that operation at the same time on the same date in the adjoining OT.
59.The operation register No.IV Exhibit-Q-1 in evidence shows the name of both Defendant No.1 and Defendant No.2 as Surgeons against the entry of the original Plaintiff No.2. This register, therefore, shows what was to be the position whereas the other register shows what is the actual position.
60.P.W.3 has been questioned about pay-in-slips maintained by BH. He has deposed about the normal practice of BH in that regard. He has deposed that the sister fills the pay-in-slip along with the admission paper to the OT the top portion of which is filled by the sister and on the reverse of it he fills in the endorsement after asking the sister the anesthetist and the theater attendant. He has been shown the pay-in- slip Exhibit-5 in evidence. He has admitted the handwriting in Exhibit-5 to be his. Exhibit-5 shows the name of Defendant No.1 as the Surgeon above the name of Defendant No.2. Though his evidence is that he fills up the details in the pay-in-slip after asking the theater sister, anesthetist and theater attendant, upon being shown the pay-in-slip of the original Plaintiff No.2 he states that he had filled in the name of the Defendant No.1 on the directions of 36 S.1101.1989 (Judgment).sxw
Defendant No.2, the evidence which cannot be accepted in view of his practice which is to the contrary. Besides since his evidence about the maintenance of register No.IV shows his inability to remember what he had stated before the MMC even after having been shown his evidence to refresh his memory, it cannot be accepted that he remembered how he added the name of Defendant No.1 upon the say of Defendant No.2 who was neither the theater sister, nor the anesthetist nor the theater attendant, who in the regular course of his conduct as a theater clerk would give him the details to be filled in the pay-in-slip. The fact remains that the pay- in-slip has been filled in in the regular course of his conduct in the OT. It is admitted to be in his handwriting. It is admitted to be filled in at the relevant time. It shows the name of Defendant No.1 as all other documents not only relating to the admission of original Plaintiff No.2, but relating to her surgery itself on 22nd December 1987. The explanation by an employee of BH who is consistently required to work with Defendant No.1 who is a senior honorary Surgeon in charge of unit of Oncology is, therefore, justifiably untruthfully given to protect Defendant No.1. However it goes only thus far and no further. The fact that the name of Defendant No.1 has been on all the records with regard to the surgery of the original Plaintiff No.2 is established.
61.The register Q-1 is much the same. It shows the same particulars. Whereas the pay-in-slip Exhibit-5 was not objected to, but explained away, the register Q-1 was objected by the BH entirely contrary to law. The documentary evidence contained in the two OT registers Exhibit-Q and Q-1 and in the pay-in-slip Exhibit-5 is clear 37 S.1101.1989 (Judgment).sxw
circumstantial evidence of the fact that Defendant No.1 was indeed the honorary Doctor and the senior Surgeon of original Plaintiff No. 2, but did not perform the surgery which was performed by Defendant No.2 instead who was his assistant Surgeon. In fact the admission of Defendant No.1 that the Defendant No.2 was appointed as assistant Surgeon to assist him, that he had no assistant Surgeon before Defendant No.2 and that he occasionally assisted Defendant No.1 is borne out by this case of being appointed an assistant Surgeon when Defendant No.1 was the Honorary Surgeon and the honorary Doctor of the original Plaintiff No.2.
62.Upon seeing that the surgery was scheduled to be performed by Defendant No.1, but actually performed by Defendant No.2 when Defendant No.1 actually performed another surgery in the adjoining OT, the oral evidence of the parties with regard to what transpired thereat must be seen. It is the case put by Defendant No.2 to Defendant No.1 who cross examined him that he had sent Defendant No.3 the Houseman who was the actual assistant Surgeon during the surgery to Defendant No.2 in the adjoining OT to inform Defendant No.1 of the precarious medical condition of the original Plaintiff No. 2 upon her abdomen being cut open by defendant No.2. It is his further case put to Defendant No.1 that after Defendant No.1 did not come to his assistance when called by Defendant No.3, he himself went to call him from the adjoining OT. Defendant No.1 had admittedly finished his surgery by then. Defendant No.1 has refuted the aforesaid case put to him. Nevertheless, in his cross examination he has admitted:
38 S.1101.1989 (Judgment).sxw
"Dr. Mukharji Defendant No.2 informed me during the surgery of Mrs. Singhi that there was plastering of tissues in the abdomen and he could not proceed further because the intestines were adherent and there was small amount of fluid."
63.It is not understood what reason there was for the two Doctors to talk during their respective surgeries unless the senior Doctor knew the case and had to be informed of what happened in the surgery or was to be at least "around". It is also not understood how they could have talked unless Defendant No.1 was called in the OT. Alas Defendant No.1 though physically close by near the OT where the original Plaintiff No.2 was did not even enter the OT and hence he neither performed the surgery nor remained around in case he was needed. Though he was needed he failed to admittedly enter the OT. Though he was to be the Honorary Surgeon required to perform the surgery and was entered in the hospital records as such, the actual surgery was performed only by Defendant No.2. Even after being informed of the Plaintiff No.2's precarious position of the original Plaintiff No.2 he did not deem it fit to do anything for her.
64.It is, therefore, a clear and admitted fact that the two Doctors had met and thus decided between them at least that Defendant No.1 would be available and "around" during the surgery of the original Plaintiff No.2. He was indeed in the adjoining OT. Evidence in the MMC inquiry has shown that Defendant No.2 claimed that he sent Defendant No.3 to call Defendant No.1 after having cut open the abdomen of the original Plaintiff No.2 and found to his dismay that he could not proceed as was hoped, thought and decided by the Doctors. Defendant No.3 has refuted that position. The Anesthetist 39 S.1101.1989 (Judgment).sxw
examined as D.W.2 has also stated that Defendant No.3 or Defendant No.2 did not call Defendant No.1. Defendant No.2 stated that as Defendant No.1 did not come upon being called by Defendant No.3 he himself called Defendant No.1 from the adjoining OT. Defendant No.1 has accepted in his cross examination in this suit that Defendant No.2 "informed him during the surgery of Mrs. Singhi......". Defendant No.1 has further deposed in his cross examination that he was in the adjoining OT and had operated Mr. Oswal. He has specifically admitted that he had told Defendant No.2 that he was operating in the adjoining OT and if he needed any help while he was operating Mrs. Singhi he would be around. He has further deposed that as he finished his operation and came out of the OT, Defendant No.2 asked the ward boy to open the door of his OT (OT No.2) and "therefrom he appraised of the findings that he found while operating Mrs. Singhi". He has deposed that upon such findings he advised Defendant No.2 that nothing further could be done and asked him to close the abdomen. He has also deposed that the distance between him and the Defendant No.2 was 6 ft. He was standing at the door of the OT and Defendant No.2 standing near the operation table. The Assistant was also present in the OT along with Defendant No.3.
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 40 S.1101.1989 (Judgment).sxw
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.
66.Even the admitted performance of the contract accepted by him was not performed. This act would show total nonperformance 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 Anesthetist 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.
67.Defendant No.1 claims that he did not feel it necessary to even go inside the OT to personally check the findings because Defendant No.2 was a competent cancer Surgeon. If that was so, Defendant No.1 could have told Defendant No.2 when they met prior to the date of surgery that there was no need for him to be around and that no help from him was needed.
41 S.1101.1989 (Judgment).sxw
68.This fits in with the version of the Plaintiff No.1 that on 22nd December 1987 when his wife was in the OT and he was standing out, Defendant No.1 came out of the lift and went into the OT. Defendant No.1 admittedly had another surgery in the adjoining OT. The further evidence of Plaintiff No.1 is that after some time Defendant No.1 came out of the OT and walked away. It is during this period of time that after the surgery was completed in OT No.1 upon Mr. Oswal by Defendant No.1 that Defendants 1 and 2 met, appraised the situation and Defendant No.1 walked off. Defendant No.2 was still in OT No.2. The Plaintiff No.1 was obviously waiting outside the OT whilst his wife was inside. It was thereafter that Plaintiff No.1 was informed by Defendant No.2 that the two Doctors had a talk - it matters not precisely where - and that Defendant No. 1 had asked Defendant No.2 to stitch up the abdomen of the original Plaintiff No.2.
69.The version of the Plaintiff No.1 from outside the OT and the version of Defendant No.1 from inside the OT, therefore, match. Whereas Plaintiff No.1 waited with hope and expectation patiently, Defendant No.1 merely appraised himself of the situation and walked away. The entire purpose of having the two operations on a single day came to naught. Though Defendant No.1 would make little of the coincidence that he was in the adjoining OT, the intrinsic evidence has shown that it was more than contrived. It was a well- planned, thoughtful deliberate act of keeping the two surgeries of Defendant No.1 on a single day at the same time in the two adjoining OTs of BH which was about 5 days after he had himself opined that that 42 S.1101.1989 (Judgment).sxw
surgery was to be performed albeit as the last resort upon the original Plaintiff No.2. Defendant No.1, therefore, contracted to perform the surgery upon the original Plaintiff No.2 as adviced by him.
70.Plaintiff No.1 has been asked in his cross-examination whether Defendant No.1 categorically told him: "I will operate". It is rather strange to question Plaintiff No.1 so. No Surgeon is expected to tell all his patients "I will operate" to make the contract by his express, unequivocal, oral acceptance to his patient's offer for an operation.
71.What is interesting, as reflected from the other case papers in Exhibit-H, is that after the surgery when Defendant No.2 was on leave for a few days no Surgeon other than Dr. Hegde was assigned to the original Plaintiff No.2. Dr. Hegde was essentially the assistant of Defendant No.1 as was Defendant No.2. He is, also shown as the assistant Doctor of Defendant No.1 in Mr. Oswal's thoractomy. Consequently, he would depute for Defendant No.2 as another assistant of Defendant No.1. If only Defendant No.2 was the Surgeon of the original Plaintiff No.2 Dr. Hegde would not have been deputed and would not have attended to the original Plaintiff No.2 on any day at all. It would have been another Doctor junior to Defendant No.2.
72.The original Plaintiff No.2 has nevertheless been charged the fees of the senior Surgeon in the bill of BH, Exhibit-N. She has also been charged the fees of the assistant Surgeon and the anesthetist based on those fees. It is quite another matter that the original Plaintiffs 43 S.1101.1989 (Judgment).sxw
were not to succumb to those charges and hence refused to pay the charges and instead complained about the conduct of Defendant No.
1. The conduct is admitted. The complaint is that he neither performed the surgery nor at least remained around or available at the time of the operation though it was so fixed for his convenience and at his convenience, 5 days after his advise, on 22nd December 1987 when he was admittedly present in his OT No.1.
73.Defendant No.1 claims that he has not received his fees. Hence he has thrown up his hands at what the hospital has charged. Indeed he has not received the fees which not due to him. A lesser person may have been paid him his fees though he has rendered no medical service, but not the original Plaintiffs. He has admitted in his cross examination that Rs.5000/- were the charges payable to him for first class patients at the relevant time. In some cases he may increase or reduce those charges. These standard charges are not only charged in the bill, but have been sought to be enforced by BH. The bill of the original Plaintiff No.2 was to be paid by the Government of Rajasthan as Plaintiff No.1 was an IAS Officer serving with the State Government. 2 reminders for payment of the bills have been sent by BH to Rajasthan Government under letters marked Exhibits O and P. Much later the bill has been modified by issue of another bill Exhibit-L. The charge of Defendant No.1 of Rs.5000/- is deleted therein. Another Rs.750/- also appear to be deleted though it has not been explained on what score the deletion to that extent is made. The fees of the Anesthetist are however not disputed. This payment, to which my specific attention was drawn by Defendant No.2 himself during the arguments is the proof of pudding. It co- 44 S.1101.1989 (Judgment).sxw
relates with the fees of Defendant No.1 and Defendant No.2 which were otherwise chargeable, if Defendant No.1 had performed his medical duties and his function as a Doctor and his part of contract with his patient.
74.The fact that the bill Exhibit-N inter alia for the fees of Defendant No.1 of Rs.5000/- was sent to the Plaintiffs is admitted. Two reminders Exhibits-O & P have been sent reiterating the fees charged by Defendant No.1 which the original Plaintiffs justifiably and understandably refused to pay. That bill has been much later in March 1988 corrected by Exhibit-L to delete the entire fees only of Defendant No.1 without making any alterations in the fees of Defendant No.2 or the Anesthetist. Why that would be so has been explained by P.W.2 Mr. Sharma who, though examined as Plaintiffs' witness has in fact sought to bring on record the act of BH whom he served in clearing the name of Defendant No.1. He has deposed that he found a mistake in the original bill Exhibit-N. Hence he issued the modified bill Exhibit-L. The mistake was in showing the amount of Rs.5000/- on account of Defendant No.1. He admitted that those were the minimum charges payable as per the schedule of BH for class "A" patients. In his further cross examination he has deposed that he was on leave when the bill Exhibit-N was prepared. He detected the mistake of over charging of Rs.5000/- when he resumed work. This he detected upon a random check. Why he did the random check is rather esoteric. He knew that Defendant No.1 was the honorary Surgeon whose fees was Rs.5000/- though he deposed that he did not know which patient was admitted under the care of which Doctor. His own letter of reminder for payment of Rs.5000/- 45 S.1101.1989 (Judgment).sxw
initially charged to the original Plaintiffs, Exhibit-O did mention that the original Plaintiff No.2 was admitted under the care of Defendant No.1. He can specifically mention that only if the records were clear for making the bills as per the schedule of fees of BH and as per whatever was their policy of recovery of amounts. His justification in correcting the records to make amends cannot be accepted. His act was only to undo the mischief done. No random check was called for. His evidence in that behalf is to be wholly rejected as an effort to white-wash the acts of the Doctor with whom he has to work in future.
75.It may be mentioned that the billing system in the BH was the same even in earlier times. The cross examination of Plaintiff No.1 shows that even in the year 1977 when his wife was operated by Dr. Paymaster, BH had billed him and not Dr. Paymaster directly. The admission was made to the hospital and not to the Doctor though he had performed the operation at that time. Similar was the case of Defendant No.1. His payment was charged by the hospital and was to be paid to the hospital - of course, if he had performed his obligation under the contract accepted by him.
76.The Plaintiffs have also claimed that he never came to see the original Plaintiff No.2 in the room after the operation. This fact is admitted by Defendant No.1 albeit disclaiming the liability upon the premise that his only function was to give an opinion which he gave on 17th December 1987. That is seen not to be so. It is the Plaintiffs' case that Defendant No.1 breached the contract with the original Plaintiffs by complete and total nonperformance.
46 S.1101.1989 (Judgment).sxw
77.Defendant No.2 was only a junior Surgeon at the relevant time. The original Plaintiff No.2 was in the best hands of Dr. Paymaster earlier. Dr. Paymaster had retired. Defendant No.1 had taken his place as the head of the unit of Oncology. Defendant No.2 was the assistant of Defendant No.1. Defendant No.1 did not have an assistant until then. Defendant No.2 was his first assistant. Defendant No.2 had assisted him occasionally. He was nevertheless only an Assistant Surgeon at that time. The Plaintiffs had selected Defendant No.1 who had stepped into the shoes of Dr. Paymaster. The original Plaintiff No.2 was admitted under the note of Mr. Sharma as the patient of Defendant No.1. Mr. Sharma would admit the patients upon a telephone talk with Defendant No.1. Defendant No.2 however performed all his functions as an assistant Surgeon at all material times. Upon he recommending hospitalization original Plaintiff No.2 was independently admitted. Defendant No.2 attended to her upon her admission and prior to her surgery as well as continuously after the surgery. The documentary evidence shows that she was got admitted under Defendant No.1. Defendant No.2 would certainly accept the position and assist Defendant No.1. Hence though Defendant No.1 was the choice of the original Plaintiffs as the honorary Surgeon Defendant No.2 attended to the original Plaintiff No.2 as an assistant would and should. The original note of Mr. Sharma and the other papers of BH Exhibit-H affirm the deposition Plaintiff No.1 that he had told Defendant No.2 that his wife should be treated by Defendant No.1 only because Dr. Paymaster had retired. Plaintiff No.1 would settle for nothing less. He would want the surgeon who took the place of Dr. Paymaster and 47 S.1101.1989 (Judgment).sxw
no other. He was an IAS Officer. The fees for his wife were to be paid by the Government of Rajasthan. Indeed Plaintiff No.1 got his wife admitted under Defendant No.1. Defendant No.1 did attend to her albeit a week after the admission. It was then that he advised exploration and thereafter agreed to perform the surgery.
78.The conduct of Defendant No.1 shows nothing other than the acceptance of the offer of the original Plaintiffs to be the Surgeon of the original Plaintiff No.2 and to treat her as such.
79.Consequently, it could not have been that original Plaintiff No.2 was only "formally" admitted in BH under Defendant No.1 though she was the patient of Defendant No.2, a case put to the original Plaintiff No.1 by Defendant No.1 though that is not his defence in the written statement. Consequently, also the case that the original Plaintiff No. 2 was the total responsibility of Defendant No.2 is correctly refuted. The documentary evidence showing that the original Plaintiff No.2 was the patient of Defendant No.1 is substantiated and cannot be brushed aside by oral evidence of Defendant No.1 to the contrary which stands excluded under Section 91 of the Indian Evidence Act.
80.Hence the Plaintiffs' lament that they could not even approach Defendant No.1 as he never attended to the original Plaintiff No.2 and nor even came to her room shows the continued and further breach of the contract between the parties made out by his own conduct, but breached by complete nonperformance.
81.The original Plaintiff No.1 legitimately inquired of Defendant No.1 48 S.1101.1989 (Judgment).sxw
after the operation. His evidence shows that after a week of operation on 29th or 30th December 1987 Mr. Sharma came to the room and informed him that he had spoken to Defendant No.1, the Defendant No.1 had told him that the original Plaintiff No.2 was not his patient and therefore, he will not come. Defendant No.1 obviously knew the aftermath of the surgery. He was aware of and could understand her predicament. There was little he could do thereafter to set the clock back. It is at that time that he is shown to have first contended that the original Plaintiff No.2 was not his patient at all.

82.Interestingly for the opinion alone for which he is stated to have been called by Defendant No.2 for the original Plaintiff No.2 and for which he had not charged despite being in a position to collect a high fee, if it was for that purpose alone, Plaintiff No.1 has deposed that he examined his wife and opined within about 4 to 5 minutes. Defendant No.1 himself has deposed that he would have examined the original Plaintiff No.2 clinically on going through the reports in about 10 minutes. His evidence shows that he did see the reports and did clinically examine her.
83.It is seen that the defence of BH, the evidence of the Plaintiffs' witness P.W.2 and P.W. 3 the two employees of BH, the evidence of Defendant No.3 in the MMC inquiry which has been extracted in this evidence as also the evidence of the Anesthetist as D.W No.2 who were all working under Defendant No.1 in BH have understandably but not ably sought to save Defendant No.1 from being exposed. The policy and practice propounded by Defendant No.1 has been 49 S.1101.1989 (Judgment).sxw
verbatim picked up on behalf of BH through the evidence of their employees P 2 and 3 and later in the arguments though .W.
completely absent in the written statement of BH. The employees P.W. 2 and P.W.3, who would be more intimidated by the position that Defendant No.1 held in the hospital, have sought to mouth the same policy. They have tried to show how Defendant No.1, despite being on all medical records shown as the Surgeon of the original Plaintiff No.2, would not have been so and has sought to show how Defendant No.2 was the Surgeon. That Defendant No.2 indeed became upon being forced into that position to hold the fort. The documentary evidence seals the fate of Defendant No.1 no matter that the employees of BH make out the documents to be otherwise. The initial form for the operation giving the consent of the original Plaintiff No.2 to the surgery shows the name of Defendant No.1 alone as the Honorary Doctor. It does not show the name of Defendant No.2 at all. It only shows Defendant No.3 and another Dr. Rajendra Jain as the House-Physician and House-Surgeon respectively. The initial note of P.W.2 Mr. Sharma also shows the Plaintiff No.2 be admitted under Defendant No.1. The reference to Dr. E. Borges for fitness for surgery shows reference made by Defendant No.3 in the name of Defendant No.1. The pay-in-slip for making the bills for the various aspects which are charged to the patient shows Defendant No.1 as the Surgeon. The OT register No.IV Exhibit-Q1 which is maintained for showing the position that was to be in the OT shows Defendant No.1 as the Surgeon along with Defendant No.2 thereunder and Defendant No.3 as the first assistant. Consequently, the bill Exhibit-N shows the fees charged by Defendant No.1 since. However Defendant No.1 actually did not 50 S.1101.1989 (Judgment).sxw
perform the surgery that he was to perform as per the contract between the parties which must be implied by the aforesaid facts, the operation register No.I Exhibit-Q shows only Defendant No.2 who actually performed the surgery since that column is filled in by P.W.3, the clerk in the O.T upon seeing the actual position that prevailed. Similarly the operation record made in the handwriting of D.W.3 the Anesthetist as admitted by him shows what actually transpired and hence Defendant No.2 is shown as the Surgeon along with Defendant No.3 as his assistant. No matter how the various junior Doctors, hospital staff or even the Trustees of BH tried to shield Defendant No.1, the documents give him away and these are the documents even aside from Exhibit-Q1, so vehemently opposed to be brought on record despite a clear case of secondary evidence having been made out not by the Plaintiff himself, but by BH itself in its inquiry.
84.The case of Defendant No.1 about the policy of the hospital is seen to be wholly false. The aid and assistance given to him by the hospital staff and hospital members is in poor taste. The mistake sought to be made out by P.W.2 Mr. Sharma, the Accounts Supervisor of BH is in vain. A random check that he is stated to have made is without any basis and contrary to his own earlier affirmation by demand of the same fees that he sought to cancel by modification of the bill. The pay-in-slip showing the name of the Defendant No.1 as the Honorary Surgeon Exhibit-5 though showing the name of Defendant No.1 to have been written at the end of the cross examination of P.W.3 at the instance of Defendant No.2 is actually earlier shown to have been written by asking the OT sister, 51 S.1101.1989 (Judgment).sxw
Anesthetist and the OT attendant as per the usual practice and procedure of BH the fact which shows the name of Defendant No.1 put in that position in the ordinary course.
85.The fact that Defendant No.3 or the Anesthetist stated that the Defendant No.2 did not call Defendant No.1 in OT No.2 of the original Plaintiff No.2 makes little difference upon the admission of Defendant No.1 himself that he came near the door of the OT, but remained at least 6 ft. away from the theater table where the original Plaintiff No.2 was and where he was expected and accepted to be, if he was to be at least "around". None of the attempts of all these witnesses has obtained the desired result. The fact that he admittedly remained short of attending to the original Plaintiff No.2 and went away from the door of the OT fits well with the version of Plaintiff No.1 on the other side of the partition when he simply walked away whilst the original Plaintiff No.2 was yet inside being stitched up by Defendant No.2 upon his directions.
86.Even the otherwise innocuous fact that Defendant No.1 stepped into the shoes of Dr. Paymaster is enough to show that he would have been the best contender as the next Surgeon of the original Plaintiff No.2. Plaintiff No.1 could not get the best; he, therefore, settled for the second best, the successor of the Dr. Paymaster who stepped into his shoes. The original Plaintiffs could not have made a better choice. It was, therefore, that even the other banal fact that Dr. Hegde attended to the original Plaintiff No.2 in the absence of Defendant No.2 falls in place. Dr. Hegde was the assistant to Defendant No.1 even on 22nd December 1987 itself in the other OT 52 S.1101.1989 (Judgment).sxw
when Defendant No.1 performed the surgery upon Mr. Oswal.
87.Upon seeing the clear documentary evidence and upon appreciating the admissions of Defendant No.1 which betrays his case of the policy of BH or the denial of the contract and upon further seeing the contrived evidence of the aforesaid other witnesses who work under Defendant No.1 in various capacities, the sole evidence of Plaintiff No.1 indeed rings true. His evidence that Defendant No.1 was away and hence the original Plaintiffs waited until 22nd December 1987 to fix her operation at his convenience and upon his talk with Defendant No.2, admitted by Defendant No.1 himself, falls in place. Similarly the Plaintiffs' evidence that upon the opinion given by Defendant No.1 of conducting a surgery (albeit called Exploratory Laprotomy) he questioned Defendant No.1 as to whether he was shown and was told by Defendant No.1 that he knew his job upon which he instantly apologized also demonstrates the scene between a Senior Doctor and a civilized patient, though he be a lay person in medicine, as true without any embellishment. It displays a scene of dependence of a patient which would be exhibited only if the Doctor is required for his services later and the patient is expected to be in his hands. It does not show a scenario which would be if only a second opinion was taken which could have been more easily ignored. Consequently, the further evidence of Plaintiff No.1 that on 17th December 1987 itself he told Defendant No.1 that he may do whatever he wanted, but that he did it himself to which Defendant No.1 "said O.K." and asked him to inform Defendant No.1 to pick up the day for the operation is exactly as the case of any patient with any Doctor at that juncture. A senior Doctor 53 S.1101.1989 (Judgment).sxw
would see a patient but once before fixing a date for the operation. He would not be expected to tell his patient the day himself. He would be unable to fix it at the time he meets the patient in her room. The patient would have to coordinate with his assistant. The date would be as suited to the Doctor rather than the patient. No Doctor at such a time would say "I will operate". He certainly would. If that was not to be and if he was called only for an opinion he would thereafter not even meet the assistant Doctor in the hospital premises and agree to be around if he was needed. He would simplicitor charge his fees for the opinion.
88. The argument on behalf of Defendant No.1 that medical ethics did not permit him even to touch the original Plaintiff No.2 in the OT because she was the patient of Defendant No.2 is an argument of no consequence. If she was a patient of Defendant No.2 and if Defendant No.1 could not go near the OT, he equally could not assure Defendant No.2 to be around. The case of the alleged ethics is, therefore, exhibited to be most unethical. It is also strictly illegal since it is in total breach of the contract by a Surgeon to attend to his patient upon acceptance of his brief. Defendant No.1 has failed to show the ethics propounded by him which would require the Doctor not to intervene even if the patients were of a junior Doctor in dire consequences. In fact all medical ethics and even the hippokrates oath shows otherwise. That is the oath which Defendant No.1 has rubbished in his evidence as a mere technical formality not taken by any Doctor of this day !
89.To understand the position of the original Plaintiffs and Defendant 54 S.1101.1989 (Judgment).sxw
No.1 as contracting parties, it would be best to understand the first principles laid down in the Contract Act. It need not detain us to accept that the original Plaintiffs as promisors made the proposal to Defendant No.1 through BH to treat the original Plaintiff No.2. It has to be seen whether the proposal of the original Plaintiffs was accepted by Defendant No.1 as the promissee. If he accepted the promise, there would be an agreement. The agreement is for treating a patient for consideration. It would, therefore, be an agreement enforceable at law and consequently a contract under Section 2 (h) of the Indian Contract Act, 1872. The acceptance by Defendant No.1 as the promissee has to the absolute and unqualified under Section 7 (1) of the Act and be expressed in some usual and reasonable manner under Section 7 (2) of the Act. The relevant portion of Section 7 which runs thus :
7. Acceptance must be absolute.- In order to convert a proposal into a promise, the acceptance must-
(1) be absolute and unqualified;
(2) be expressed in some usual and reasonable manner...
What is the usual and reasonable manner makes for the acceptance by performance or by implications under Sections 8 & 9 of the Act which run thus :
8. Acceptance by performing conditions, or receiving consideration.- Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal.
9. Promises, express and implied.- In so far as the proposal or 55 S.1101.1989 (Judgment).sxw
acceptance of any promise is made in words, the promise is said to be express. Insofar as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.
90.Defendant No.1 accepted the proposal of the original Plaintiffs in the usual and reasonable manner that surgeons do. Surgeons would not accept only by saying "I will operate" but by actually operating, by aiding and assisting in operation as circumstances require, by charging the fees for the operation, by contriving to fix the operation to accommodate themselves as per their schedule and, of course, by being shown as one such surgeon in the records of the hospital. By all of these modes the contract between the parties in this case must be implied and is demonstrated by performance. It is implied by the patient accepting the surgeon's command to fix the operation at his convenience. It is accepted by the fact that it is fixed on a given day, 5 days after his advice in an O.T. adjoining another O.T. where he admittedly performed another surgery. It is further implied by the charges that are levied to the patient by way of the surgeon's fees as per the schedule prevailing at the relevant time. It is further manifest in the surgeon actually remaining at the door of the O.T. where he was expected to come as per his implied obligations and where he admittedly conferred with another surgeon to understand the medical position of the patient and to command a further act before walking out.
91.This case falls squarely within the aforesaid Sections denoting an absolute and unqualified acceptance expressed by the usual mode which surgeons reasonably adopt. The acceptance is seen by the consideration sought to be charged for his fees. Of course, in this 56 S.1101.1989 (Judgment).sxw
case there is no direct acceptance; it could not be because there was a stiff resistance. Nevertheless the charge was demanded. It was stated to be specifically of Defendant No.1 and none other in the notices of demand, Exhibits O & P in evidence. The charge of the anesthetist was indeed accepted which was in terms of the schedule of fees depending of the charge of the surgeons. The acceptance was not made in so many words "I will operate"; it was implied in the condescending act of Defendant No.1 to fix the O.T. coordinated with Defendant No.2 on the day that would convenience none other than he.
92.It is argued on behalf of Defendant No.1 that the Plaintiffs have not pleaded an implied contract and hence the Plaintiffs cannot claim such a contract. The Plaintiffs have not pleaded also that the contract was oral or in writing. The Plaintiffs have not pleaded the type of contract entered into by and between the parties. It has been the case of the Plaintiffs that a contract was entered into by them with Defendant No.1. The innate evidence must show what type of contract the suit contract was. From the underlying evidence in this case, it is for the Court to decipher what kind of contract the Suit contract was. The usual misconception between pleadings and evidence, which is endemic in our legal system, is brought to the fore in the defence. Upon the seminal mandate of pleadings to be brief, concise and precise all it warrants is to plead why the Plaintiff seeks relief. That pleading is upon the contract and/or the tort in a case such as this. The evidence showing how and under what circumstances the contract was entered into or the tort was committed is not a part of the pleadings, but evidence and has not to 57 S.1101.1989 (Judgment).sxw
be detailed in the plaint. Of course, the Plaintiff must rely upon and get produced all the documentary evidence which would support such a case aside from leading oral evidence about the execution of the contract itself or the circumstances under which it came to be. Similarly the Defendants in their defence would plead lack of contract and in their evidence may rely upon and get produced all the documentary evidence which would support such a defence. Upon such evidence of all the parties, both oral and documentary read as a whole, the contract, if any, would be evaluated and adjudged. It is, therefore, for the Plaintiffs to plead the contract and not the type of contract it was; it is for the Plaintiffs to lead evidence about the circumstances in which it was entered into and how the parties acted in respect thereof. It is then for the Court to appraise, evaluate and ascertain whether the evidence shows any contract and of what type as statutorily required. Only if the evidence points to a contract of one of the types set out in the Law of Contracts, the consequences would follow.
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 58 S.1101.1989 (Judgment).sxw
of them. He breached the contract by nonperformance of the surgery or even remaining "around".
94.Pollock & Mulla's Indian Contract Act, Thirteenth Edition at page 241 shows how a proposal can be accepted by performance of its condition since the case of Carlill V. Carbolic Smoke Ball Co. [1891-94] All ER Rep 127. Pollock & Mulla set out this state of circumstance thus:
"when only acts are required, the communication of their performance may or may not be added as a term of the offer at the will of the proposer, which may be either express or inferred from the nature and circumstances of the proposal.
The rule is that no further communication of acceptance is necessary than performance of the proposed act. Mere performance of the act prescribed by the proposal is sufficient acceptance of such proposal and converts it to a promise even without further communication of acceptance. This distinction is recognised in Sections 5 and 8 of the Contract Act.
If an offer takes the form of a promise in return for an act, the performance of that act is in itself an adequate indication of assent."
95.In a case of a contract between the patient and surgeon the performance can be seen by all the acts done for the performance of the surgery, the surgery itself and the consequent payment for the surgery. Even one of these aspects would be sufficient acceptance of the proposal to be made into a contract.
96.Chitty on contracts, Volume I, Chapter 13 at page 887 sets out the concept of implication of the term of a Contract thus : "The implication of a term is a matter of law for the court, and whether or not a term is implied is usually said to depend upon the intention of the parties as collected from the words of the agreement 59 S.1101.1989 (Judgment).sxw
and the surrounding circumstances."
The intention of the parties to the contract who are patient and surgeon would be to render surgical treatment by the surgeon and to make payment by the patient thereupon. The other terms such as reserving an O.T. for that purpose etc. may be worked out between the parties in case of different contracts differently.
97.Chitty on Contracts at page 905 of the aforesaid book sets out the incidence of a contract of service separately. In case of suppliers of service the implied term in the contract would be to carry out the service with reasonable care and skill, an aspect available in the statute for the sale of goods. For professional services the degree of care is required of a professional man as a member of such profession of ordinary competence and experience. This, of course, would be if services are rendered. For non rendering of the service there is nothing but a complete breach.
98.Implied contracts have been so held when payments are made in terms of the contract by one party and accepted by the other. [See. Amrit Banspati Co. Ltd. Vs. Union of India (UOI) AIR 1966 All 104 and M/s. Bhagwati Prasad Pawan Kumar Vs. Union of India AIR 2006 SC 2331].
99.In the case of Bharat Petroleum Corpn. Ltd. Vs. Great Eastern Shipping Co. Ltd. AIR 2008 SC 357 it is held that the performance of a party in charterparty contract who continued to use a vessel on hire at the same rate despite the rates which had to be reduced under the extended period of a charterparty and the party never 60 S.1101.1989 (Judgment).sxw
protested for the rates which were charged as before were held to have contracted to pay the same rates and were held to be continued to be bound by the contract by virtue of the payment which they made despite protest upon continuance to use the vessel on hire under the said charterparty agreement. It was held that the party accepting the hire of the vessel accepted the contract sub-silento by their conduct. Hence the continuation of the contract between them was implied.
100.The contractual relations between the patient and surgeon is best enunciated in the case of Deborah M. Belin Vs. Lenox Dingle, Jr. Et al. No. 462, Sept. Term, 1998 of the Court of Special Appeals of Maryland dated 30th June, 1999. It has been held in that case that :
"To have another physician operate on one's patient without the patient's knowledge and consent is a deceit. The patient is entitled to choose his own physician and should be permitted not to acquiesce in or refuse to accept the substitute. The surgeon's obligation to the patient requires him to perform the surgical operation: (1) within the scope of authority granted by the consent to the operation; (2) in accordance with the terms of the contractual relationship; (3) with complete disclosure of all facts relevant to the need and the performance of the operation; and (4) to utilize his best skill in performing the operation. The patient is entitled to the services of the particular surgeon with whom he or she contracts. The surgeon, in accepting the patient is obligated to utilize his personal talents in the performance of the operation to the extent required by the agreement creating the physician-patient relationship. He cannot delegate to another the duties which he is required to perform personally."
101.It referred to the case of Perna Vs. Pirozzi, 92, N.J. 446, 457 A.2d 431 (1983) of the Supreme Court of New Jersey in which also a patient claims that he had not authorized any surgeon other than the 61 S.1101.1989 (Judgment).sxw
one chosen by him to perform the operation. He executed a consent form in the name of the chosen doctor as the operating surgeon with his assistants who were unnamed to perform the surgery. His doctor was not present at the operation. He learnt of the identity of the operating surgeon only upon re-operating for post-surgical complications. It was held that there was a breach of his agreement to operate as also the breach of a fiduciary duty the doctor owed his patient.
The substitution of one surgeon for another without the consent of the patient was observed thus :
"A patient has a right to choose the surgeon who will operate on him and to refuse to accept a substitute. Co-relative to that right is the duty of the doctor to provide his or her personal services in accordance with the agreement with the patient.
Few decisions bespeak greater trust and confidence that the decision of the patient to proceed with surgery. Implicit in that decision is a willingness of the patient to put his life or her life in the hands of a known and trusted medical doctor."
Consequently it was held in the case of Belin (Supra) that the consent form of the patient should reflect the patient's decision. It was further observed that the failure of the surgeon to perform a medical procedure upon the patient's consent would be deviation from the standard medical care. It was observed that:
It is malpractice whether the right surgeon operates on the wrong part or the wrong surgeon operates on the right part of the patient. In each instance, the surgeon has breached his duty to care for the patient.
.....the doctor who, without the consent of the patient, permits 62 S.1101.1989 (Judgment).sxw
another surgeon to operate violates not only a fundamental tenet of the medical profession, but also a legal obligation.
In this case the doctrine of informed consent which has been oft used in the U.S. has also been considered. The Judgment considered that the consent given to one doctor cannot be taken to be consent given to others as the patient exercises his choice of his volition and, therefore, there would be "lack of informed consent" to the doctor actually operating.
In that case Dr. Dingle was paid $ 2800 to perform surgery. The patient wanted him to be his operating surgeon. The patient having been operated upon by another doctor, her informed consent was questioned. The express agreement between the patient and the doctor led the Court to hold the doctor accountable for the surgery.
102.The aspect of consent has been considered by the Supreme Court in the case of Samira Kohli Vs. Dr. Prabha Manchanda & Anr. 2008 DGLS (Soft.) 56. The Court considered the concept of "valid and real" consent by summarizing the principles relating to the consent in that Judgment being (i) the consent was to be secured before the treatment was commenced including surgery. The concept of real and valid consent would mean the patient's capacity and competence to consent, the voluntariness of the consent and the adequate information about the treatment that the patient would have before he/she consents. (ii) The 'adequate information' to be furnished by the doctor would be such as to enable the patient tomake a balanced judgment as to whether he/she should undergo surgery or treatment. (iii) The consent given for diagnostic procedure cannot 63 S.1101.1989 (Judgment).sxw
be considered as consent for therapeutic treatment. (iv) There may be a common consent for diagnostic or operative procedure as required. (v) The information to be given for obtaining consent is only required to be normal and proper in the usual course as would be given by all experienced doctors. (vi) In that case there was no consent given by the patient for hysterectomy; when the consent was only given for laparotomy bythe words "Laparotomy may be needed" in the consent form. It was held that it would only refer to therapeutic procedures which are conservative in nature and not radical surgery for removal of important organs. The hysterectomy performed was, therefore, held to be an act in excess of consent though in good faith and for the benefit of the patient.
103.This aspect of the consent has been followed in the case of Nizam's Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors. (2009) 6 SCC 1. In paragraph 43 of the Judgment referring to Samira Kohli case, the Court considered "real consent" in U.K. and "informed consent" in America holding that the consent in doctor- patient relationship meant the grant of permission by the patient for an act to be carried out by the doctor. It was seen that the consent was implied for examination, diagnosis and consultation.
In that case whilst undergoing a cesarean section it was observed that consent is given by a person after receipt of the following information:
"the nature and purpose of the proposed procedure or treatment; the expected outcome and the likelihood of success; the risks; the alternatives to the procedure and supporting information regarding those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated 64 S.1101.1989 (Judgment).sxw
with no treatment. Also included are instructions concerning what should be done if the procedure turns out to be harmful or unsuccessful."
The doctor found fibroid tumours in the patient's uterus. Apprehending danger in future pregnancy, he performed a sterilisation operation. It was held that since there was no immediate threat or danger to the patient's health, the doctor performed that part of the operation without the patient's consent.
104.The Judgments in the case of Samira Kohli and Nizam's Institute (supra) give a guidance to the ambit of consent given by a patient so specifically laid down in the case of Belin (Supra). In this case the form filled in by the original Plaintiff No.2 giving her consent specifically shows that Defendant No.1 is an honourary surgeon. It makes no mention of Defendant No.2. The contention of the Plaintiff that the consent was given only to Defendant No.1 to perform operation mentioned in the form on the specific date on which surgery was specifically to be performed has to be accepted. It is this consent that effectuates the agreement between the parties orally made and to be implied upon the clinical examination of Defendant No.1 and his advice to perform the exploration which was scheduled to be performed on 22nd December, 1987.
105. The contract between Defendant No.1 and the original Plaintiffs is seen to have been unmistakably entered into as aforesaid. Hence Issue No.1 is answered in the affirmative.
106.Issue No.3:
The contract between the parties reflected in the said form is absolutely clear as to the contracting parties, as to the 65 S.1101.1989 (Judgment).sxw
performance of the date of the contract as also the specific operation to be performed.
The contract having been seen, and it having been admitted that it is not performed by Defendant No.1 himself and justified by him as to why it was not performed calls for the consideration of the aspect of damages for its breach.
Defendant No.1 has stated that he was given a resume of the precise condition of the original Plaintiff No.2. Without looking at her, without entering her O.T., without holding as much as scalpel for the original Plaintiff No.2, he directed Defendant No.2 to close the abdomen upon the particulars given by Defendant No.2 on the premise that Defendant No.2 was a competent surgeon whom he had confidence in (though elsewhere in his evidence he has decried him to be an average surgeon whom he had not recommended particularly).
107.Given that the contract between the patient and himself is proved, doing only so much is not performance of the contract as per its terms, as per the implied obligations and as per the expectation of the surgeon of his position, standing and repute. In fact it borders on total nonperformance of the contract resulting in a complete breach of the contract between the parties.
108.Since the original Plaintiff No.2 was entitled to the service of Defendant No.1 for whom she gave consent, his direction or even guidance to Defendant No.2 to perform the surgery is no good. It is 66 S.1101.1989 (Judgment).sxw
not as per the terms of his contract. His very case that he was expected only to "be around" is outside the purview of the contract between the parties replicated in the consent given in the writing.
109.Nevertheless, even if that part was performed, Defendant No.1 would have been in O.T. No.2 at the time the abdomen of original Plaintiff No.2 was cut and would have given the benefit of his expertise to her. Even if he was available in the O.T. to do nothing other than to stitch up her abdomen, it was for him to stitch it up. It was at least for him to be available whilst it was being stitched up. It was not for him to direct the stitching up and to leave the operation theatre and go right down the hospital lift without looking back.

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