It has to be seen whether the proposal of the original Plaintiffs was accepted by Defendant No. 1 as the promise. 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 promise 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 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 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.
IN THE HIGH COURT OF BOMBAY
Suit No. 1101 of 1989
Decided On: 02.09.2011
Padam Chandra Singhi and Ors.
Vs.
Dr. P.B. Desai and Ors.
Vs.
Dr. P.B. Desai and Ors.
Hon'ble Judges/Coram:
R.S. Dalvi, J.
R.S. Dalvi, J.
Citation: 2012(1) ALLMR 510
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. 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 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.
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, 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.
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.
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 defense to be considered in the suit 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 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 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 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 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 as cities. 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 as cities. 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 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 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:
1. Whether there was any contract entered into between the defendant nos. 1 and 2 with the plaintiffs regarding the treatment given to the 2nd plaintiff. Yes- there was a contract between the original Plaintiffs and Defendant No.1. 2. Whether there was any misperformance and negligence on the part of the defendant nos.1 and 2 in conducting the surgery on the deceased plaintiff. No - there was no negligence in tort. 3. Whether the plaintiffs are entitled to claim any damages from the defendants. Yes - for breach of contract. 4. Whether the suit is sustainable in law against all the defendants. Yes 5. Whether there was any cause of action for the suit to be filed against the defendants. Yes 6. Whether the defendant nos.4 to 13 are liable to pay the suit claim. If so, to what extent. No 7. Whether the defendant no.3 is a proper and necessary party to the suit. Does not arise. 8. Whether the defendant nos.4 to 13 are vicariously liable for the suit claim. No 9. To what reliefs, if any, which the plaintiffs are entitled to As per final order
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 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 17th 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 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 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.
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 21st 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 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 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 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 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 defense 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 defense by the trustees of BH of any such policy the defense 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 defense 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 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 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 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 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 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 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 22nd 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 notation 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 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 23rd 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 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 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 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 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 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 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 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:
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 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 "there from 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 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 promise 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.
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 apprised 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 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 advised 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 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- 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 and 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/- 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.
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 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 defense 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 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 defense 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 verbatim picked up on behalf of BH through the evidence of their employees P.W. 2 and 3 and later in the arguments though 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 there under 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 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, 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 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 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 Hippocrates 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 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 promise. 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 promise 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 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 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 defense. 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 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 defense would plead lack of contract and in their evidence may rely upon and get produced all the documentary evidence which would support such a defense. 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 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 Company 1891 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 recognized 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 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 Company Ltd. v. Union of India (UOI) MANU/UP/0034/1966 : AIR 1966 All 104 and M/s. Bhagwati Prasad Pawan Kumar v. Union of India MANU/SC/2931/2006 : AIR 2006 SC 2331].
99. In the case of Bharat Petroleum Corpn. Ltd. v. Great Eastern Shipping Company Ltd. MANU/SC/8036/2007 : AIR 2008 SC 357 it is held that the performance of a party in charter party 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 charter party and the party never 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 charter party 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 v. 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 v. Pirozzi 92, N.J. 446, (1983) 457 A.2d 431 of the Supreme Court of New Jersey in which also a patient claims that he had not authorized any surgeon other than the 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 reoperation 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. Correlative 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 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 v. Dr. Prabha Manchanda and 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 to make a balanced judgment as to whether he/she should undergo surgery or treatment. (iii) The consent given for diagnostic procedure cannot 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 by the 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 v. Prasanth S. Dhananka and Ors. MANU/SC/0803/2009 : (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 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 tumors in the patient's uterus. Apprehending danger in future pregnancy, he performed a sterilization 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 honorary 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 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 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.
110. His attitude shows how the patients are treated by doctors of such standing and how much the patient can expect of the doctor. It shows the standard of care and the quality of the personal service given by the doctor and the extent of service accepted by the patient under extreme constraint and hopelessness. It however does not alter the legal obligations and rights of the parties. It would at best require the Court to see how the surgeon, who contracted with the patient, at least remained available near her and at her service. Availability cannot include a direction without a look at the patient.
111. Upon seeing the breach, the remedy is to be considered. The damages can be claimed for breach of the contract as well as for negligence in tort. The issue does not specify the two separate heads of damages which can be claimed under the common law and the statute law.
112. Mr. Joshi, Counsel on behalf of the Plaintiffs, took me through the plaint to show me how the claim for damages is sought. The Plaint shows the contract between the parties. Paragraph 5B, 5C & 5D of the Plaint set out the case of a valid contract entered into by BH as well as Defendant No. 1 as per the hospital practice in consideration for the fees charged by Defendant No. 1 to be paid by the original Plaintiffs. Paragraph 5F sets out the breach of the contract by nonperformance. Paragraph 5H of the Plaint sets out the contractual obligations to be performed by Defendant No. 1. The averments in paragraph 7 of the plaint shows the liability in tort of Defendant No. 1 for negligence. The averments in paragraphs 12 & 13 also show the liability in tort made out against Defendant No. 2 by negligence in the treatment given to the original Plaintiff No. 2 by him. Paragraph 14 of the Plaint has claimed relief of damages of Rs. 23.75 lacs under various heads set out in that paragraph. The damages in a sum of Rs. 2.25 lacs are claimed for hospitalization, doctor's fees, medical and ancillary expenses of the hospital, stay in Bombay and travelling to and fro Jaipur where the original Plaintiffs were residing. Damages in a sum of Rs. 16 lacs are claimed for mental agony and anguish suffered by the original Plaintiff No. 2. Further damages of Rs. 1.90 lacs are towards doctors' fees, medical and ancillary expenses from the date of the Suit until the death of the original Plaintiff No. 2. Similarly damages of Rs. 3 lacs are claimed for mental agony and anguish suffered by the original Plaintiff No. 2 from the date of Suit until her death. These damages totaling to Rs. 23.75 lacs claimed with interest at 18% per annum on the principal amount claimed from the date of the Suit till Judgment and until payment.
113. Since it is seen that the contract was voluntarily entered into and was breached, the Plaintiffs would be entitled to damages upon such breach of contract by nonperformance or mis-performance even if there be no negligence in tort.
Breach of contract having been proved, the Plaintiffs would be entitled to claim damages for all the expenses incurred by them and proved by them.
(a) The expenses incurred by the original Plaintiffs are contained in the initial hospital bill, Exhibit N and upon its correction, Exhibit - L and further 7 hospital bills, Exhibit K (colly).
(b) The Plaintiffs have only produced several bills of chemists for the medicines given to Plaintiff No. 2 which are marked Exhibit I collectively in evidence. These bills are not proved by direct oral evidence.
(c) Though the Plaintiffs have claimed the travelling charges between Jaipur and Bombay, the Plaintiffs have not produced any documentary evidence in that behalf and their claim to that extent has remains unsubstantiated.
(d) The Plaintiffs have sought to prove the expenses incurred for the nursing treatment of the original Plaintiff No. 2 through the nurse examined as PW 5. She has issued a receipt of Rs. 38,880/- part of Exhibit I (colly) showing the precise days of nursing care rendered by her to the original Plaintiff No. 2 from 4th April, 1988 when she was discharged until 26th April, 1988 when she expired. She has claimed Rs. 120/- per day of nursing care. Despite her cross- examination, the truth of her certificate has not been challenged. Judicial notice is required to be taken of the fact that the nurses are required and hired to attend to patients like the original Plaintiff No. 2 in their twilight days and they do charge the amounts claimed by the nurse, PW 5. It has to be accepted that the original Plaintiff No. 2 was first class patient in BH and was treated by doctors even in the U.S. There is nothing to show that she could not have been given the nursing care shown by the Plaintiffs.
114. The Plaintiffs have further claimed damages for mental agony, pain and anguish that the original Plaintiffs suffered. The averment in Para 13 of the Plaint shows various complications developed by original Plaintiff No. 1 including intestinal fistula for which original Plaintiff expended large sum of money to undergo treatment. The Plaintiffs have claimed that the oozing of liquid from the intestinal fistula increased in quantity and frequency. The daughter of the original Plaintiffs who lived in USA and worked as architect had to come to India to be with her. The oral evidence of Plaintiff No. 1 has further shown the extent of discharge from the fistula and the expenditure of nursing care required.
115. BH has produced the case papers of the hospital. Case papers Exhibit H precisely show the condition of original Plaintiff No. 2 from the date of surgery until she was discharged and the treatment given to her. These include pain killers as well as anti-biotics. The case papers show the intestinal fistula developed and the treatment thereupon. Various endorsements show dressings done and changed by Defendant No. 2. These dressings are not done as frequently as deposed by Plaintiff No. 1. Case papers also show, to an extent, that discharge has been lessened and the wound was healing. However much after the endorsement relating to the healing of the wound also discharge, though less, has been reported.
116. Much is made by Counsel on behalf of BH that though Plaintiff No. 1 has deposed that original Plaintiff No. 2 could not eat at all, the case papers shows that semi-solid diet was given to her until 08.02.1988 and from 09.02.1988 full diet was prescribed. Thereafter the patient was allowed to go out for certain intervals by way of certain endorsements in the case papers. It is submitted on behalf of the Plaintiffs that though she was allowed, she was unable to go out, though the said fact has not been otherwise substantiated. However, it matters not whether she could go out of the hospital; what matters is her quality of life in the hospital and thereafter.
117. The original Plaintiff No. 2 was discharged on 26.02.1988 and later remained under the care of a nurse. PW 5 has been examined to show the nursing care given to original Plaintiff No. 2. That evidence is also largely oral. The fact that she was given nursing care can never be gainsaid, but it would have to be seen whether the extent of such care stated in her oral evidence as also in the evidence of Plaintiff No. 1 can be accepted. It has been her evidence that she used to do the dressings upon original Plaintiff No. 2 15-20 times a day. That evidence cannot be accepted. The case papers of BH, Exhibit H show dressings done not more than once a day. However, these dressings are done almost every day until her discharge. There is nothing to show that her condition improved or deteriorated after discharge to the hospital. The evidence of the nurse that she used to stay at the Plaintiff 's house and used to look after her all 24 hours is acceptable. Her evidence that she had to dress the patient's wound many times each day may be an exaggeration, but the fact that the wound had to be dressed as before would have to be accepted since that she only lived for one year of her life after discharge. The description of the bleeding and oozing given by her is not substantiated by the endorsements which she has deposed she used to make as those papers are not produced. Similarly her evidence about the fact that she could not retain food that she ate and that it used to come out through oozing cannot be accepted as that was not even her medical condition in the BH when she was given post operative care.
118. The striking aspect of the evidence of PW 5, the nurse is that the original Plaintiff No. 2 used to be so distressed as to curse and abuse even her own husband (who stood by her like a rock all through) and that she used to throw even toilet water upon her. This descriptive evidence of an independent witness reflecting her grief and misery says it all. Such evidence does show that the original Plaintiff No. 2 had to undergo enormous mental agony consequent upon the surgery which led to oozing of liquids which had to be dressed each day by the assistant surgeon himself in BH and then by the nurse until her death.
119. Given that she was admitted to the first class of BH and was prepared to pay the charges of the doctor of her choice being Defendant No. 1 who was the senior most Oncologist and surgeon in BH she would be justified in concluding that she did not receive the kind of treatment that she contracted for by accepting Defendant No. 1 as her honorary surgeon.
120. Though, therefore, her condition may not have been as precarious as is made out by Plaintiff No. 1, it is seen that she was constrained to be hospitalized from 22nd December, 1987 until 4th April, 1988 even when she never received the treatment she contracted for and had to suffer the after-effects of the surgery when she was treated by the assistant surgeon. She, therefore, certainly suffered mental agony, torture, torment and grief. Consequent upon the breach of the contract by Defendant No. 1, the surgery performed by Defendant No. 2, though he steadfastly gave her the best care and treatment, he could do little to ameliorate her condition.
121. Mr. Joshi argued that the claim in contract is enforceable at law. The Plaintiffs' claim is akin to a commercial contract. The damages for the breach of the contract in the precise amounts expended for hospital charges and nursing charges are required to be reimbursed to the Plaintiffs. Upon the breach of the contract the amounts spent by the original Plaintiffs have been lost to them. Had those amounts not been so spent, they could have been more profitably invested by the Plaintiffs.
122. Hence to that extent the Plaintiffs must be compensated by payment of interest on the amounts spent at the usual commercial market rate prevailing at all relevant material times until the payment is made.
123. Aside from the damages so computable, the damages for mental distress, agony and anguish for the loss occasioned by the breach of the contract including contracts of professional service, have also been granted in England as well as India in deserving cases.
124. In the case of Jarvis v. Swans Tours Ltd. (1973) 1 Q.B. 233 C.A., later cited and followed, damages in a sum of 125 came to be granted to the Plaintiff aside from the damages for breach of contract when the Christmas winter sports holiday booked by the Plaintiff upon payment turned out to be "a great disappointment" to the Plaintiff who claimed general damages for inconvenience and loss of benefit. Package holiday facilities were described in the brochure of Defendants. The reservation of facilities was confirmed. There were breaches of express and implied terms of the contract seen by the Court. The Plaintiff had obtained two week's leave of absence. Had the Defendants properly performed their contract, the Plaintiff would not have been inconvenienced as alleged and proved by the Plaintiff. This was reasonably expected by him. Upon seeing a fundamental breach of the contract even damages for mental distress were held to be grantable. The earlier law set out in the cases of Hamlin v. Great Northern Railway Company (1856) 1 H. and N. 408 and Hobbs v. London and South Western Railway Company (1875) L.R. 10 Q.B. 111 that damages cannot be given for mental distress was considered but revisited as out of date. It was observed per Lord Denning M.R. that in a proper case damages for mental distress can be recovered in contract, just as damages for shock can be recovered in tort. This was so held despite the difficulty in assessing such damages in terms of money. It was observed that the Plaintiff had only a fortnight holiday in year. He had taken it far away. He looked forward to it all the time. He had to be compensated for loss of it. The illustration given by Lord Denning was a case of a man who had purchased a ticket for a show and hired a car to take him there. He observed that if the car did not turn up his damages are not limited to the costs of the ticket. He would be entitled to general damages for disappointment he had suffered and the loss of entertainment he should have had. Consequently grave disappointment in the service under a contract was held to be a case for being dandified in damages.
125. It was further held per Lord Justice Edmund Davies that even inconvenience that is not strictly physical is the proper element in the assessment of damages. Considering the dissenting judgment of Lord Denning in the case of Griffiths v. Evans (1953) 1 W.L.R. 1424 where a solicitor was sued for wrong advice as to his client's right to sue his employer at common law, it was held that the damages should be assessed "by taking into account the inconvenience and expense to which the Plaintiff will be put in suing the employers, and the risk of failure." It was observed that when a man who had paid for his holiday returns home dejected because his expectations were largely unfulfilled, it would be quite wrong to say that his disappointment must find no reflection in the damages to be awarded.
126. It was observed per Lord Justice Stephenson that the trial Judge only held that the value of the Plaintiff 's loss was what he paid for the contract of his holiday. It was observed that the Judge had "under-valued the loss to the Plaintiff for the breach he found." It was observed that the Judge "under- estimated the inconvenience to the Plaintiff " and it was held that there may be contracts in which parties contemplate inconvenience on breach which may be described as mental: frustration, annoyance, disappointment. In such contracts damages for breach, it was held, should take wider inconvenience or discomfort into account and hence the method of measuring damages was "to put a value on the subject matter of this contract", first as promised and then as performed, and to include the inconvenience to the Plaintiff.
127. The measure of damages, though difficult to assess in terms of money must be assessed. Justice Denning in the case of Jarvis (supra) observed that such assessment is no more difficult than assessment which the Courts everyday in personal injury cases grant for loss of amenities.
128. It would be a matter of shame if in a case as profound and grave as that of the Plaintiffs herein, in which original Plaintiff No. 2 suffered not only inconvenience and discomfort, but pain and agony in having to cope with the after-effects of the surgery distinctly shown in the case papers, Exhibit-H in evidence, being the discharge from the intestinal fistula which was developed upon the surgery by Defendant No. 1 having failed to at all perform the surgery himself or even under his directions by being available thereat in the O.T., and which was required to be treated and bandaged each day by Defendant No. 2 in BH and the nurse at her residence thereafter, the damages for mental agony and anguish suffered by the original Plaintiffs and claimed by them are not granted.
129. The aspect of damages for mental distress upon the breach of contract has also been considered by the Court of Appeal in respect of failure to perform the contract by a form of solicitors in the case of Heywood v. Wellers (a firm) (1976) 1 All ER 300 CA. In that case the Plaintiff who was a lady living as a single mother with one son directed her solicitor to initiate an action against the Defendant initially for recovery of a part of a sum advanced by her to him and later for an injunction against molestation. The Solicitors' firm failed to take action. She was held entitled to the damages claimed by her for mental distress caused to her as a result of the molestation consequent upon the solicitor's negligence in failure to enforce an injunction obtained by them on her behalf. Lord Denning, Master of the Rolls set out the facts of the case showing how a clerk of the solicitor's firm representing himself to be a solicitor, which he was not, undertook a lot of work in pursuing the action wholly erroneously but not in enforcing the injunction obtained by him on behalf of the Plaintiff. It was observed that he did not bring forth the Defendant before the Court upon the breaches being committed. The Plaintiff got no protection against the molestation and in fact was molested on 3 or 4 occasions. It was observed that the Plaintiff could recover money paid by her as fees to the solicitor on a consideration which fully failed and also be entitled to recover damages for negligence.
130. Following the rule in the case of Jarvis (supra) it was also observed that such damages for the mental distress and upset caused to her by the molestation which was not abated should have been in the contemplation of the solicitor and consequently could be claimed as damages which are proximate under the Rule of Hadley v. Baxendale which is the fountain-head case for the law of damages for breach of contract.
131. Only the expenditure of fees specified for the actual action to be taken for obtaining an order of injunction was allowed to be deducted as that would have to be paid by her if the solicitor had rendered his services instead of completely failing in that behalf.
132. The case of Heywood (supra) has analogy similar to this case. It is a case of a professional. It is the case of the Defendant who accepted the contract. The contract was to render professional service. Actual rendering of the service was itself seen to constitute the contract as an acceptance by performance. The oral contract between the parties was accordingly implied to have been made. The failure to perform on the part of the solicitor resulted not only in expenses for the litigation, but mental distress for not having the grievance remedied despite taking out other proceedings. Though it was a contract between a client and solicitor, the client was held not only entitled to the return of all the fees and also excepted from the payment of the solicitor's bill for services erroneously rendered, but also for anguish and agony that she suffered. The measure of damages was the acceptance of the reasonable damages she claimed, in that case 150 with reduction of only the fees of 25 that she would have paid if the action was taken and the obligations under the contract were performed.
133. It was also observed that the expenses incurred for the action taken by the clerk of the solicitor's firm acting erroneously could not be recovered by the solicitor's firm from the Plaintiff. The amount so claimed is analogous to the services rendered by Defendant No. 2 as the assistant surgeon. Hence if by opening her abdomen and stitching it up upon the orders of Defendant No. 1, he did the surgical procedure erroneously and caused an intestinal fistula, she would not be bound to pay for the treatment given in that behalf and in fact, it being the direct consequence of the failure of Defendant No. 1 to do that work or to be available at least while it was done, she would be entitled to claim recovery of the amount spent for the entire treatment which was the aftermath of the surgery and the accompanying anguish.
134. Consequently as held in the case of Jarvis (supra) aside from the damages which are in the nature of recovery of the actual expenses incurred and proved by the Plaintiff under hospital's bills honored by the Plaintiff as receipted by the hospital and the nurse's charges as proved by PW 5, the Plaintiffs must be granted damages for the mental agony and anguish suffered by them upon their betrayal by Defendant No. 1 which given the sufferings as reflected in the case papers of the hospital showing the intestinal fistula having developed.
135. In a similar case of Diesen v. Samson 1971 S.L.T. (Sh. Ct.) 49 which was in the Sheriff 's Court of Lanark at Glasgow, damages were granted for breach of contract by a professional photographer who failed to attend the marriage where he had contracted to take 25 rough photographs of the bride and the groom for a fee of 12 and taken a deposit of 2. In that case the photographer forgot the engagement and failed to appear at the venue of the wedding. Though the Plaintiff tried to mitigate her loss by allowing another person to take the photographs, they could not be taken as the flash light and the camera did not function. The Photographer at a late hour offered to come to the venue but was not required as he would have delayed the proceedings unreasonably having arrived late in traffic hours in the congested metropolis. It was observed that the real issue was whether the damages could be avoided in that case for injury to feeling resulting from the breach of contract. Though the general rule in commercial contract was not to allow such damages, it was held that in case of personal and family interests, such damages could be allowed even upon the breach of contract. It was observed:
The reason for the general rule is that contracts normally concern commercial matters and that mental suffering on breach is not in the contemplation of the parties as part of the business risk of the transaction. If, however, the contract is not primarily a commercial one, in the sense that it affects not the Plaintiff 's business interests but his personal, social, and family interests, the door is not closed to awarding damages for mental suffering should the court think that in the particular circumstances the parties to the contract had such damage in their contemplation. The types of contract where these consideration could apply would be contracts giving the Plaintiff a right to come on the Defendant's property from which he is then forcibly removed by the Defendant, as from a theatre, racecourse, train or hotel, and also contracts connected with the ill health or death of the Plaintiff or members of his family, such as lack of attention by a doctor, hospital or undertaker, or a failure or delay in delivery of a telegram announcing illness or death to a family member.
The contract in the present case..... was not commercial in that sense and was exclusively concerned with the pursuer's personal, social, and family interests and with her feelings. Wedding photographs generally are of no interest to anyone except the bride and bridegroom and their relatives and friends, and then only because they serve to stimulate recollection of a happy occasion and so give pleasure. What both the parties obviously had in their contemplation was that the pursuer would be enabled to enjoy such pleasure in the years ahead. This has been permanently denied her by the defender's breach of contract and, in my opinion, it is as fitting a case for the award of damages as the examples cited.
136. In this case also upon a breach of contract by complete nonperformance by Defendant No. 1, the Plaintiff suffered considerable torment. Aside from her medical condition resulting from the intestinal fistula which resulted in oozing of liquids from the wound made where she was stitched, she suffered the agony by feeling that the service of Defendant No. 1 would have been different. Her mental suffering is required to be heeded. The anguish that was caused to her family members more specially Plaintiff No. 1 who remained by her side always is also to be considered. This is not a case of commercial goods and chattels. Only the general measure of damages as are usually granted for breaches of commercial contract would, therefore, not apply.
137. Damages for mental distress, pain, agony, suffering, including annoyance and inconvenience have been granted in case of breach of contract of professional service as also commercial service.
138. In the case of Bailey v. Bullock and Ors. 1950 (2) AER 1167 CA, a Solicitor who failed to take proceedings to recover his client's house was held liable in damages for the inconvenience caused to the client having to live along with his family in the house of his in-laws for two years. A distinction was made for annoyance or disappointment at the failure of the other party to carry out his contractual obligations and the actual physical inconvenience and discomfort caused by the breach observing that the Plaintiff suffered substantial inconvenience as a direct result of Defendants breach which was reasonably contemplated by the Defendants as a probable result of their failure to perform their contractual duties due to their negligence. Damages came to be granted for such inconvenience.
139. In the case of Perry v. Sidney Phillips and Son 1982 (3) AER 705 damages were awarded for distress, inconvenience and trouble caused due to defects in a house which has been overlooked by the Surveyor the following the case of Jarvis (supra). It was held that the Plaintiff shall be entitled to damages for all the vexation, distress and worry which had been caused as a reason of the negligence of the Surveyor. It was held the damages for physical consequence of the breach which were force able upon the breach of contract were grantable though not for tension or frustration of the person involved in a legal dispute upon the other party refusing to meet its liability.
140. In the case of Hayes and Anr. v. James & Charles Dodd 1992 (2) AER 815 CA, again damages for anguish and vexation arising out of breach of contract were held awardable. That was a case in which the husband and wife purchased the premises for a motor repair business. Due to negligent advice from their solicitor about an access way that was crucial to the success of the venture, the business was forced to close down. It was observed by Lord Justice Stoughton that damages for mental distress which were reasonably force able as a consequence of the breach could be granted when the contract or the duty in tort was to provide peace of mind or freedom from distress. These are, therefore, awarded in case of special relationship between the parties.
141. These were not granted in that case as it was a contract of a commercial nature. However damages for physical discomfort extending over a period of time were granted at a reduced rate.
142. In the case of Watts and Anr. v. Morrow 1991 (1) W.L.R. 1421 a Surveyor who was found negligent in failing to report the defects in the house was granted non pecuniary damages for inconvenience and discomfort experienced by them during the repairs. Following the case of Jarvis (supra) and Perry (supra) amongst others it was held that the Plaintiff was entitled to damages for physical discomfort and inconvenience resulting from the breach during the period of repairs which extended over eight months. The interference caused in the use of bathroom etc. and upon scaffolding put in the house were demonstrated as physical discomfort caused by the Surveyor's failure to report these defects. The rules for granting damages came to be laid down though not as an absolute rule. It was observed that the very object of the contract was to provide pleasure, relaxation, peace of mind or freedom from molestation. Damages would be awarded if the contrary result is procured instead and the damages which were awarded must be directly related to the inconvenience and discomfort and if they are forced to be suffered.
143. of course, damages for remote effects are not grantable. [See. Fominol Laboratories Ltd. v. British Artid Plastics Ltd. (1941 and relied upon by the Defendant No. 1.
144. Making a departure from the case of Dr. Sharad Vaidya v. Paulo Joel Vales MANU/MH/0074/1992 : AIR 1992 Bom 478 relied upon by Defendant No. 1 in which it was earlier held that professional services did not come within the purview of a contract as contemplated in the Indian Contract Act, the Supreme Court, in the case of Indian Medical Association v. V.P. Shantha and Ors. MANU/SC/0836/1995 : (1995) 6 SCC 651 at page 666 whilst considering whether the medical practitioners come under mischief of Consumer Protection Act as persons rendering service, has observed that a professional owed a duty to his client in tort as well as in contract to exercise reasonable care in giving advice or performing service. Consequently it has been observed that medical practitioners though belonging to medical profession, are not immune from a claim of damages on the ground of negligence.
145. Consequently the Plaintiffs are entitled to claim damages for breach of contract by Defendant No. 1 and also for the mental agony, anguish and distress suffered by the original Plaintiff No. 2 consequent upon such breach from Defendant No. 1. Hence Issue No. 3 is answered in the affirmative.
146. Issue No. 2: The contract of the original Plaintiff with Defendant No. 2 was not of surgery. That contract was for medical treatment. The original Plaintiff No. 2 was under the care and treatment of Dr. Paymaster. Defendant No. 2 served as his assistant in BH Defendant No. 2 treated the original Plaintiff No. 2 prior to and after her return from the U.S. when she suffered bleeding. He advised hospitalization. Since Dr. Paymaster had retired, Plaintiff No. 1 obtained admission for his wife, the original Plaintiff No. 2, under Defendant No. 1 as is evidenced by the note of Mr. Sharma, PW 2. Defendant No. 2 assisted Defendant No. 1 right from the admission of original Plaintiff No. 2 in the hospital. Defendant No. 2 has treated the original Plaintiff No. 2. The medical case papers makes this position clear. In fact this position has been shown to the Court by Counsel on behalf of BH. The endorsements "seen by Dr. Mukherji" appear throughout the case papers. Further the endorsements of Defendant No. 2 are with regard to taking the opinion of Defendant No. 1, and to take appointment for pulmonary function prior to the surgery and similar endorsement "seen by Dr. Mukherji" immediately after the surgery and thereafter each day except on 29th December, 1987 when he was replaced by Dr. Hegde who was the other assistant of Defendant No. 1 who treated the original Plaintiff No. 2 in his absence.
147. The performance of the duties by Defendant No. 2 for treating the original Plaintiff No. 2 is continuous and complete. Whether despite these duties having been performed by Defendant No. 2, he is still liable in tort for any after-effects of his treatment and care shall have to be seen.
148. Mr. Joshi sought to point out the only act of Defendant No. 1 and the total absence of any other acts of Defendant No. 1 in the entire hospitalization of the original Plaintiff No. 2. Defendant No. 1 first appeared on the scene on 17th December, 1987.He clinically examined the original Plaintiff No. 2. He was shown and has admittedly gone through her previous medical records contained in the reports of U.S. Doctors who had previously recently treated her. He advised Exploratory Laprotomy to be performed upon her. That is a surgical procedure. The U.S. Doctors of the original Plaintiff No. 2 had advised against surgery since she was a case of metastasis (spread of cancer).
149. The evidence of Plaintiff No. 1 is that being unsure of the effect of the surgery, upon the previous medical opinion of U.S. doctors, Plaintiff No. 1 sought to get confirmation from Defendant No. 1 as to his confidence in it. Defendant No. 1 told Plaintiff No. 1 that he knew his job. Plaintiff No. 1 immediately apologized. He told Defendant No. 1 that if surgery had to be performed it be performed only by him. This shows his admitted confidence only in Defendant No. 1. Defendant No. 1 has denied the oral evidence of Plaintiff No. 1 of what transpired on 17th December,1987 just outside the room of the original Plaintiff No. 2.
150. The Plaintiffs claim that the opinion to perform surgery is itself erroneous and a resultant tort.
151. The Plaintiffs have claimed the tort upon their case that original Plaintiff No. 2 was declared to be an inoperable case of cancer by the U.S. doctors and yet Defendant No. 1 advised surgery. This, of course, would be another opinion. Such opinion may be given taking into account, the facts and circumstances of the case in the course of the conduct of Defendant No. 1 as an expert in that field. If such a course is available and open to be pursued as per the technology available at the relevant time, mere contrary opinion and the action thereupon would not constitute a tort to bring the case into the realm of the law of damages. The extent of liability for the tortuous acts of a doctor has been set out in numerous Judgments right from the case of Bolam v. Friern Hospital Management Committee (1957) 2 AER 118, which has been off cited and followed in England as well as India for seeing the "Bolam Test" Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. MANU/SC/0362/1968 : AIR 1969 SC 128, Philips India Ltd. v. Kunju Punnu and Anr. MANU/MH/0139/1975 : AIR 1975 Bom 306, Whitehouse v. Jordan 1981 (1) AER 267 QBD, Maynard v. West Midlands Regional Health Authority (1985) 1 All ER 635, Hotson v. East Berkshire Area Health Authority 1987 (2) AER 909 QBD, Dr. Sharad Vaidya v. Paulo Joel Vales MANU/MH/0074/1992 : AIR 1992 Bom 478, Bolitho v. City 1997 4 AER 771 HL, Smt. Vinitha Ashok v. Lakshmi Hospital MANU/SC/0583/2001 : AIR 2001 SC 3914, and the test case of Jacob Mathew v. State of Punjab and Anr. MANU/SC/0457/2005 : AIR 2005 SC 3180 followed thereafter in Martin F. D'souza v. Mohd. Ishfaq MANU/SC/0225/2009 : (2009) 3 SCC 1, Malay Kumar Ganguly and Anr. v. Dr. Sukumar Mukherjee and Ors. 2009 (9) SCC 22, C. P. Sreekumar, M.S. (Ortho) v. S. Ramanujam MANU/SC/0702/2009 : 2009 (7) SCC 130: 2009 AIR SCW 3878, INS Malhotra (Ms) v. Dr. A. Kriplani and Ors. MANU/SC/0446/2009 : (2009) 4 SCC 705, Post Graduate Institute of Medical Education and Research, Chandigarh v. Jaspal Singh and Ors. MANU/SC/0906/2009 : 2009 (7) SCC 330, Ramesh Chandra Agrawal v. Regency Hospital Ltd. and Ors. JT 2009 (12) 377, Ms. Anita Nagindas Parekh and Ors. v. Dr. Anil C. Pinto 2009 (1) ALL MR 98 and Kusum Sharma and Ors. v. Batra Hospital and Medical Research Centre and Ors. MANU/SC/0098/2010 : (2010) 3 SCC 480.
152. Defendant No. 1 was entitled to give his own opinion when he was consulted. That may turn out to be correct or erroneous. The opinion was given by him as a professional to carryout the procedure then medically available and the one as the last resort. He is not seen to be in tort for the opinion given as also in effectuating the opinion. Hence Issue No. 2 is answered in the negative against both the Defendants 1 and 2.
153. Issue Nos. 6 & 8 : The position of the BH is accepted by all the parties. Defendant No. 2 advised the hospitalization of original Plaintiff No. 2. The original Plaintiffs chose the hospital. They followed the required procedure for admission. They contacted PW 2 who was the Admission Supervisor. He followed the requisite procedure. They desired the service of Defendant No. 1. He got them admitted under the case of Defendant No. 1 as per his note to the CMO. Defendant No. 1 would allow admissions through PW 3 Account Supervisor even on telephone. Accordingly original Plaintiff No. 2 was admitted under Defendant No. 1 as an honorary surgeon.
154. Defendant No. 2 was to assist Defendant No. 1. He was initially assisting Dr. Paymaster. At that time Defendant No. 1 had no assistants. Defendant No. 2 assisted him for the first time in the case of original Plaintiff No. 2. They were to be paid the regulated fees as per the schedule of fees of BH.
155. They owed a duty of care to their patients. Failure of the duty of care in performing their functions as honorary surgeon or assistant surgeon respectively would entail tortuous liability. Neither Defendant No. 1 nor Defendant No. 2 were the employees of BH. Neither Defendant No. 1 nor Defendant No. 2 were under a contract of service for performance of their professional duties with BH. Had they been employees of BH, it would have been liable for their tortuous act if any [See. Joseph alias Pappachan & Ors. v. Dr. George Moonjely and Ors. MANU/KE/0042/1994 : 1995 ACJ 253]. Had there been a contract of service between BH and Defendant Nos. 1 or 2, it would have also been liable. [See. Cassidy v. Ministry of Health, 2 K.B. 343].
156. Mr. Setalwad relied on certain Judgments to show that the hospital was not vicariously liable for the negligence of a doctor who is independent consultant since the hospital would only allow facilities to the doctor. [See. Hillyer v. Governors of St Bartholomew's Hospital 1909 (2) KB 820, Strangways Lesmere v. Clayton 1936 (2) KB 11, Collins v. Hertfordshire County Council & Anr. 1947 (1) KB 598, Dharangadhra Chemical Works Ltd. v. State of Saurashtra & Ors. MANU/SC/0071/1956 : AIR 1957 SC 264 and Venkatesh Iyer v. BH Trust & Ors. MANU/MH/0279/1998 : 1998 (3) Bom.C.R. 503].
157. The doctors have independent patients as per the contracts entered into by them and perform their independent duties totally outside in supervision of BH or under any contract of employment. Hence even if Defendant Nos. 1 & 2 are held liable in tort for medical negligence by not observing the required duty of care to the patient, the trustees of BH cannot be held vicariously liable. Consequently Issue Nos. 6 & 8 are answered in the negative.
158. Issue Nos. 4 & 5 : It is contended on behalf of the Defendants that the right to sue does not survive with regard to the action in tort. [See. Motilal Satyanarayan and Anr. v. Harnarayan Premsukh and Anr. MANU/MH/0033/1923 : AIR 1923 Bom 408, Palaniappa Chettiar v. B Raja Rajeswara MANU/TN/0692/1925 : AIR 1926 Mad 243, Ratanchand v. Municipal Committee, Hinganghat MANU/NA/0047/1930 : AIR 1931 Nag 9, Jogindra Kuer and Ors. v. Jagdish Singh and Ors. MANU/BH/0164/1964 : AIR 1964 Pat 548, M. Veerappa v. Evelyn Sequeira and Ors. MANU/SC/0259/1988 : AIR 1988 SC 506, Dr. Sharad Vaidya v. Paulo Joel Vales, MANU/MH/0074/1992 : AIR 1992 Bom 478, E. I. Ltd. and Anr. v. Klaus Mittelbachert MANU/DE/1234/2001 : AIR 2002 Del 124 (DB): 95 (2002) DLT 617 (DB), Marwadi Mothiram and Ors. v. M. Samnaji and Ors. MLJ (31) 772 and Mahtab Singh v. Hub Lal and Anr. ILR (48) All 630] That is true of the part of the action in tort. The Suit is sustainable against the Defendants in contract. The cause of action is seen to be averred in contract as well as tort. Hence Issue Nos. 4 & 5 are answered in the affirmative.
159. Issue No. 7 : The Plaintiffs do not press their claim against Defendant No. 3. Hence issue No. 7 is not required to be answered.
160. Issue No. 9 : The Plaintiffs are entitled to damages for breach of contract with Defendant No. 1 from Defendant No. 1 and for interest thereon.
161. The measure of damages has been considered in the aforesaid cases such as not to be extravagant [See. Bailey v. Bullock (supra), take a realistic view, [See Perry v. Sidney (supra)], that they can be discretionary and commensurate with injuries shown to have been suffered, [See Watts v. Morrow (supra)].
162. The measure of damages in a contract of service relating to property for mental distress, anguish, grief and inconvenience has been held not to be excessive or for remote reasons. Hence in the case of Watts v. Morrow (supra) damages for distress and inconvenience were assessed at 750 in the year 1991 and though damages for the defects which were disclosed in Surveyor's report was granted and the damages for breakdown of Plaintiff 's marriage were held could not granted. The Court observed the damages for discomfort occasioned by reason of the defects could be granted but not expenses incurred for holiday in Scotland. In the similar case of damages to property occasioned by the defects not reported in the Surveyor's report in the case of Perry v. Sidney (supra) Lord Denning held that the right measure of damage would be the difference between what the Plaintiff paid for the property and its value when he obtained it. He observed that a realistic view would be taken to assess the measure.
163. The extent of damages for the breach of the contract of professional services agreed and failed to be rendered and for the consequent mental agony, distress and anguish would be analogous to the damages which are grantable for similar effects upon a tort.
164. It may be mentioned that the breach of the contract of a personal nature more so by a professional involves violations of human rights and is the most acute and profound in case of doctors. Their breach by nonperformance would result also in fatality. It would result in considerable mental distress and may lead to other mental problems including depression arising from such distress and agony. Such damages cannot be computed upon the precise monetary loss alone.
165. The Supreme Court of Nizam's Institute (supra) considered the precise case of negligence in surgical operation by a surgeon who was sued under the Consumer Protection Act. In that case a young man of 20 years who was a student of Engineering suffered from acute paraplegia (paralysis from the waist down). The Supreme Court awarded Rs. 10 lacs only towards pain and sufferings amongst the total compensation of Rs. 1 crore granted with interest of 6% per annum from the date of the challenge to the order of the Consumer Forum until the payment which was a period of 10 years as on the date of the order itself. The amount of damages towards medicines, future earnings as also pains and sufferings have been computed upon a reasonable lump sum as on the date of the order. It would be interesting to set out the portion of the Judgment granting the damages in paragraph 86 thereof...
keeping in view the need for continuous medical aid which would involve expensive medicines and other material, and the loss towards future earnings, etc. we direct a lump sum payment of Rs. 25 lakhs under each of these two heads making a total of Rs. 50 lakhs. In addition, we direct a payment of Rs. 10 lakhs towards the pain and suffering that the Appellant has undergone. The total amount thus computed would work out to Rs. 1,00,05,000 (Rs. 1 crore 5 thousand) which is rounded off to Rs. 1 crore plus interest at 6% from 1-3-1999 till the date of payment, giving due credit for any compensation which might have already been paid.
166. 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 v. Sidney (supra) it has been observed the compensation for inflation be also accounted for "because damages carry interest". In the case of Hayes v. 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. The rough estimate made by the trial Judge was upheld by the appeal Court as a fair assessment. The relevant portion of the Judgment at page 818 shows how the interest on the property came to be calculated roughly assessing the property's value thus:
The judge awarded the Plaintiffs 80% of the interest because of the true value of the marionette at the time of sale, and the Defendants argue that the proportion should have been much less. The judge was making a rough estimate which should not readily be criticized. However, the Defendants submit that it was wholly wrong. In my opinion the judge's assessment is fair. In considering how to apportion the original price of 65,000, he has deducted the 10,000 paid by the Plaintiffs from the overpayment for the marionette, leaving 55,000. 10,000 of that is the balance of the overpayment, which leaves 45,000 as the amount for which the Defendants are responsible. 45,000 is near enough 80% of 55,000.
168. In the case of Watts v. Morrow (supra) interest at the rate of 15% per annum on the award of damages based on the cost of the repairs was held appropriate.
169. Those interest rates are on the principal amount of damages for breach of contract calculated under all the heads including mental distress from the date of the Suit till the date of Judgment.
170. In the case of Nizam's Institute (supra) a lump sum payment of Rs. 10 lakhs only for pain and suffering came to be made with interest at 6% per annum from the date of the Judgment which is the interest allowable under Section 34 of the Code of Civil Procedure.
171. The claim of interest of 18% is at the usual commercial rate prevailing at the time of the filing of the Suit. Judicial notice must be taken of the fact that that rate prevailed until the end of 2007 after which the rate of commercial interest was lower. A reasonable rate of interest is required to be granted to the Plaintiffs for the 22 years period during which the Plaintiffs' Suit remained on the docket of this Court and the Plaintiffs remained indemnified. In this case interest @ 16% p.a. for the entire period from the date of the surgery of the original Plaintiff No. 2 till the date of this Judgment and thereafter @ 6% p.a. till payment/realization would meet ends of justice.
172. Hence the suit is decreed for damages and interest payable thereon as follows:
1. Reimbursement of all amounts paid under the bills Exhibits L & K (colly) aggregating to Rs. 42375/- with interest @ 16% p.a. thereon from the date of the Surgery of the original Plaintiff No. 2 till the date of this Judgment and thereafter @ 6% p.a till payment or realization.
2. Reimbursement of the nursing charges of Rs. 38880/- of the Nurse, PW 5 with interest also @ 16% p.a. thereon from the date of the Surgery of the original Plaintiff No. 2 till the date of this Judgment and thereafter @ 6% p.a till payment or realization.
3. Rs. 15 lakhs for mental agony, distress & anguish caused to the original Plaintiffs by the breach by nonperformance of the contract by Defendant No. 1 interest @ 16% p.a. thereon from the date of the surgery of the original Plaintiff No. 2 till the date of this Judgment and thereafter @ 6% p.a till payment or realization.
4. Costs of this suit fixed at Rs. 1 lakh.
173. Mr. Doctor on behalf of Defendant No. 1, applies for stay of this Judgment and order. Simplicitor stay of the decree cannot be granted under Order 41 Rule 5(2)(3)(c) unless security for due performance of the decree and judgment is given by the Defendant No. 1. Hence, the application is rejected.
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