{"id":187920,"date":"2009-05-26T00:00:00","date_gmt":"2009-05-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-jagat-narain-sharma-vs-union-of-india-ors-on-26-may-2009"},"modified":"2016-12-06T23:26:02","modified_gmt":"2016-12-06T17:56:02","slug":"shri-jagat-narain-sharma-vs-union-of-india-ors-on-26-may-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-jagat-narain-sharma-vs-union-of-india-ors-on-26-may-2009","title":{"rendered":"Shri Jagat Narain Sharma vs Union Of India & Ors. on 26 May, 2009"},"content":{"rendered":"
Delhi High Court<\/div>\n
Shri Jagat Narain Sharma vs Union Of India & Ors. on 26 May, 2009<\/div>\n
Author: V.B.Gupta<\/div>\n
*       HIGH COURT OF DELHI : NEW DELHI\n\n                         RFA No.236\/2000\n\n%                 Judgment reserved on:5th May, 2009\n\n                  Judgment delivered on:26th May, 2009\n\nShri Jagat Narain Sharma\nS\/o. Late Pt. Ram Prasad,\nC\/o. Mrs. Savita Sharma\nSocial Worker\nsPresent Address: 358\/IJ\nSavitri Gali, Behind Post Office,\nMandawali, Delhi-92                            .... Appellant\n\n                           Through: Ms. Mala Goel, Adv as\n                                    Amicus-Curie.\n\n                                Versus.\n1. Union of India\n   Through Secretary\n   Ministry of Health,\n   New Delhi.\n\n2. Ram Manohar Lohia Hospital,\n   Through its Superintendent\n   New Delhhi.\n\n3. Dr. O.N. Krishna,\n   Head of Eye Department,\n   Ram Manohar Lohia Hospital,\n   New Delhi                              ..... Respondents\n\n                      Through : Mr. Rajinder Nischal, Adv.\n\nCoram:\nHON'BLE MR. JUSTICE V.B. GUPTA\n\n1. Whether the Reporters of local papers may\n\n\n\n\nRFA No.236\/2000                                   Page 1 of 26\n be allowed to see the judgment?                        Yes\n\n2. To be referred to Reporter or not?                  Yes\n\n3. Whether the judgment should be reported\nin the Digest?                             Yes\n\n\nV.B. GUPTA, J.\n<\/pre>\n
        By        way   of   present   appeal,    appellant         has<\/p>\n
challenged the judgment and decree dated 6th August,<\/p>\n
1999, passed by Additional District Judge, Tis Hazari,<\/p>\n
Delhi,       vide       which   suit   of   the   appellant         for<\/p>\n
compensation for Rs.2 lacs was dismissed.<\/p>\n
2.      Facts in brief are that appellant, now aged about<\/p>\n
88 years old, filed the suit as an indigent person. On<\/p>\n
19th October, 1987, he was admitted in Dr. Ram<\/p>\n
Manohar Lohia Hospital, for his eye-treatment and was<\/p>\n
operated upon for extraction of cataract of his right<\/p>\n
eye. He was discharged on 28th October, 1987. The<\/p>\n
operation was performed in presence and under<\/p>\n
supervision of respondent No.3, being head of eye-<\/p>\n
department. Appellant was asked to visit hospital after<\/p>\n
one week for the removal of the stitches. Respondents<\/p>\n
RFA No.236\/2000                                      Page 2 of 26<\/span>
\n No.2 and 3, further asked the appellant to come again<\/p>\n
for the removal of the remaining stitches.<\/p>\n
3.      When appellant’s right eye was operated upon, he<\/p>\n
complained to respondent No.3 and other junior<\/p>\n
doctors, who removed the stitches, that in the course<\/p>\n
of a fortnight he felt severe irritation in his eye as<\/p>\n
there was excessive bleeding and whole eye-ball was<\/p>\n
covered with blood and he had suffered great mental<\/p>\n
loss, agony etc.             When nothing was heard, he<\/p>\n
contacted respondent No.3. Thereafter, he was sent to<\/p>\n
Dr. Sharma who told him that a slit has been formed in<\/p>\n
the     retina    due   to   non   removal   of   the    stitches<\/p>\n
completely and vitreous disorder has developed and<\/p>\n
for this reason no lense was fitted in his eye.<\/p>\n
4.      Treatment of appellant continued vide treatment<\/p>\n
cards dated 22.9.88, 27.10.88, 26.4.89, 18.12.90,<\/p>\n
6.2.90, 31.1.91, 30.10.91 and 31-3\/1.4.91.                Due to<\/p>\n
negligence on the part of the respondents, the eye of<\/p>\n
the appellant got damaged. Then he approached Dr.<\/p>\n
Rajinder Prashad Hospital under All India Institute of<\/p>\n
RFA No.236\/2000                                    Page 3 of 26<\/span>
\n Medical Sciences.    He went there on 30.10.87 and<\/p>\n
remained under its treatment upto 1991.    Doctors at<\/p>\n
Dr. Rajinder Prashad Hospital, informed him, that on<\/p>\n
account of negligence on the part of the respondents<\/p>\n
No.2 and 3, as the operation was done wrongly, the<\/p>\n
whole of the eye-retina was formed and could not be<\/p>\n
restored\/cured in future.   Appellant came to know<\/p>\n
about this fact after 30.10.91. In 1991, respondents<\/p>\n
refused to give him any treatment. Due to negligence<\/p>\n
and inexperience of respondent No.3, appellant has<\/p>\n
become blind and permanent disabled. Consequently,<\/p>\n
respondents are liable to pay compensation to him.<\/p>\n
Appellant took advice from various doctors of Sant<\/p>\n
Parmanand Blind Mission Hospital also on 10.6.91.<\/p>\n
They also informed that the right eye-ball has been<\/p>\n
degenerated.\n<\/p>\n<\/p>\n
5.      Appellant approached the consumer redressal<\/p>\n
forum, too, which vide its judgment dated 12.2.93, had<\/p>\n
come to the conclusion that the appellant was not a<\/p>\n
RFA No.236\/2000                           Page 4 of 26<\/span>
\n consumer.           Appellant thus claimed compensation of<\/p>\n
Rs.2 lacs in the present suit.\n<\/p>\n<\/p>\n
6.      The suit was contested by the respondents.<\/p>\n
Defence of respondents is that a routine intracapsulat<\/p>\n
contract extraction was performed on the appellant on<\/p>\n
19.10.87. His stitches were removed in stages, in two-<\/p>\n
three weeks and he had to come for routine check-up.<\/p>\n
As a matter of fact, retina is far away from Cornea and<\/p>\n
such a thing, as a formation of slit is totally ruled out,<\/p>\n
as     per        medical   science.   A   simple     and            plain<\/p>\n
conventional intraccapsular surgery was performed<\/p>\n
and that, too, after obtaining written consent of the<\/p>\n
appellant.\n<\/p>\n<\/p>\n
7.      The alleged negligence on the part of the<\/p>\n
respondents has been categorically denied.                           It is<\/p>\n
explained that the appellant’s eye was operated upon<\/p>\n
to the best capability of the respondents. Actually, the<\/p>\n
appellant did not develop any hole in retina as a result<\/p>\n
of    the     operation     or   because   of   the   subsequent<\/p>\n
treatment by the respondents. The hole, if any, could<\/p>\n
RFA No.236\/2000                                       Page 5 of 26<\/span>
\n be the result of independent happening and is not<\/p>\n
necessarily related to the surgery\/operation done or<\/p>\n
performed by the respondents. At the age of 75 years,<\/p>\n
as in the case of the appellant, the holes are commonly<\/p>\n
found in the unoperated eyes, hence, the hole of the<\/p>\n
appellant has no co-relations with the operation<\/p>\n
performed by the respondent.         The appellant is not<\/p>\n
visually handicapped. His visual status of vision 6\/36<\/p>\n
Rt. Eye and 6\/9 Lt. eye, does not fall into the category<\/p>\n
of visually handicapped (even minimal handicap).<\/p>\n
8.      It is further stated that the present suit is barred<\/p>\n
by time. Appellant has tried to abuse the process of<\/p>\n
the court. He is nuisance monger and the allegations<\/p>\n
contained in the suit lack bonafides. The present suit<\/p>\n
has been filed in order to harass the doctors with<\/p>\n
oblique motive and to achieve unlawful gain and un-<\/p>\n
earned income in the form of compensation.<\/p>\n
9.      It is contended by learned counsel for the<\/p>\n
appellant that there was sufficient evidence on the<\/p>\n
record before the trial court which suggests gross<\/p>\n
RFA No.236\/2000                                 Page 6 of 26<\/span>
\n negligence on the part of respondent No.3, which has<\/p>\n
resulted in complete and incurable damage to the<\/p>\n
appellant’s eye.   It is also clear from the treatment<\/p>\n
chart of Dr. Rajender Prasad Hospital and All India<\/p>\n
Institute of Medical Science, that operation was<\/p>\n
performed by respondent No.3 on the appellant in a<\/p>\n
negligence manner, which caused incurable damage to<\/p>\n
the appellant’s eye.\n<\/p>\n<\/p>\n
10. It is also contended that when respondent No.3<\/p>\n
came to know about the damage caused by his wrong<\/p>\n
operation, he refused to treat the appellant any<\/p>\n
further. Such refusal clearly indicates the guilt on the<\/p>\n
part of respondent No.3.    Damage to the appellant’s<\/p>\n
eye could be caused only due to wrong operation as<\/p>\n
was opined by the doctors of other hospitals and not<\/p>\n
due to over age as was pleaded by respondent No.3<\/p>\n
during cross-examination.\n<\/p>\n<\/p>\n
11. In support of its contention learned counsel for<\/p>\n
the appellant cited Savita Garg v. Director, National<\/p>\n
Heart<\/a> institute (2004) 8 SCC 56, Achutrao H.<\/p>\n
RFA No.236\/2000                             Page 7 of 26<\/span>
\n Khodwa v. State of Maharashtra & Ors. AIR<\/a> 1996<\/p>\n
SC 2377, A.S. Mittal & Ors. v. State of U.P. & Ors.<\/p>\n
AIR<\/a> 1989 SC 1570.\n<\/p>\n
12. On the other hand, it has been contended by<\/p>\n
learned counsel for the respondents, that it was for the<\/p>\n
appellant to prove that there was negligence on the<\/p>\n
part of the doctor, who had performed the operation.<\/p>\n
Appellant’s eye was      operated upon to the best<\/p>\n
capability of the doctors and he did not develop any<\/p>\n
hole in retina as a result of the operation or because of<\/p>\n
subsequent treatment. It was the appellant, who did<\/p>\n
not visit the doctor after the operation, as advised by<\/p>\n
Dr. Anil Tara, DW 2 and as such there is no negligence<\/p>\n
on the part of the doctor.\n<\/p>\n<\/p>\n
13. On 3rd November, 2006, a Division Benchof this<\/p>\n
Court, heard the matter at some length and thereafter<\/p>\n
it passed the following order;\n<\/p>\n
RFA No.236\/2000                              Page 8 of 26<\/span>\n<\/p>\n
              “Having given our careful consideration
\n             to the submissions made at the bar, we
\n             are of the view that the question whether
\n             loss of vitreous reported in the OPD card
\n             marked Ex.PW1\/2 was on account of the
\n             negligence of the surgeon operating the
\n             patient or for any other reason is a
\n             matter that needs to be clarified.
\n             Unfortunately, for the parties, there is no
\n             clear evidence on that aspect of the
\n             matter before us. It was in that view
\n             suggested to counsel for the parties that
\n             an eye specialist of repute could be
\n             examined in terms of order 41 Rule 27 of
\n             the Code of Civil Procedure to clarify
\n             whether loss of vitreous could be on
\n             account of the negligence of the surgeon
\n             operating upon the patient or could also
\n             be attributed to any other reason. In the
\n             latter event percentage of cases in which
\n             this could happen, could also be clarified
\n             by the witness.<\/p>\n
             Learned counsel for the parties agreed
\n             that Dr. Rasik Vajpayee of Rajendra
\n             Prashad     Institute    of   Ophthalmic
\n             Sciences, who is a specialist of repute,
\n             could be examined as a witness. They
\n             further agreed that since Dr. Vajpayee is
\n             an extremely busy person, instead of
\n             summoning him before the court to make
\n             a   statement,    it   would   be   more
\n             appropriate if a Court Commissioner is
\n             appointed to got his statement recorded.
\n             In the circumstances, therefore, we
\n             appoint Ms. Sidhi Arora, Advocate of this
\n             Court as a Local Commissioner with the
\n             direction that she shall record the
\n             statement of Dr. Rasik Vajpayee of<\/p>\n
RFA No.236\/2000                                   Page 9 of 26<\/span>
\n              Rajendra Prashad Institute of Ophthalmic
\n             Sciences, New Delhi.           The Local
\n             Commissioner shall have the following
\n             aspects clarified from the witness.\n<\/p><\/blockquote>\n
                  (1)    Whether loss    of vitreous
\n                  can be caused only     because of
\n                  the negligence of      the doctor
\n                  operating upon the     patient for
\n                  removal of cataract?\n<\/p><\/blockquote>\n
                  (2)    If there are other reasons
\n                  apart from negligence that can
\n                  result in loss of vitreous, what
\n                  are those reasons and what is
\n                  the percentage of cases of such
\n                  losses attributable to those
\n                  reasons? In particular, whether
\n                  old age of vitreous in the course
\n                  of or even without an operation
\n                  for removal of cataract.\n<\/p><\/blockquote>\n
                  (3)    Whether non removal of
\n                  all the stitches put by the
\n                  surgeon in connection with the
\n                  cataract operation can result in
\n                  or contribute to the loss of eye
\n                  sight?\n<\/p><\/blockquote>\n
                  Apart from eliciting the opinion
\n                  of the doctor on the above
\n                  aspects, the Local Commissioner
\n                  shall also ask questions to the
\n                  doctor suggested to her by
\n                  learned counsel for the parties
\n                  in the course of examination.”\n<\/p><\/blockquote>\n
RFA No.236\/2000                                  Page 10 of 26<\/span><\/p>\n
 14. In            pursuance   of   the   above   order,        Local<\/p>\n
Commissioner appointed by this Court, recorded the<\/p>\n
statement of Dr. Jeewan S. Tityal of Rajinder Prasad<\/p>\n
Institute of Ophthalmic Sciences, New Delhi.                        The<\/p>\n
questions put to this doctor in terms of Court’s order<\/p>\n
along with deposition of the doctor, as are under;<\/p>\n
              “Q.1 Whether loss of vitreous can be
\n              caused only because of the negligence of
\n              the doctor operating upon the patient for
\n              removal of cataract?\n<\/p><\/blockquote>\n
              Ans. No, vitreous loss does not happen
\n              because of negligence. It is a known
\n              complication of the cataract surgery.
\n              Q.2 If there are other reasons apart
\n              from negligence that can result in loss of
\n              vitreous, what are those reasons and
\n              what is the percentage of cases of such
\n              losses attributable to those reasons? In
\n              particular, whether old age of a patient is
\n              in itself a reason for the loss of vitreous
\n              in the course of or even without an
\n              operation for removal of cataract.
\n              Ans. There are many reasons for vitreous
\n              loss during cataract surgery.\n<\/p><\/blockquote>\n
                     \uf0b7 Ocular        diseases      like\n                       subluxated      lens,   trauma,\n                       hyper      mature      cataract,\n                       previous history of glaucoma\n                       or retinal surgery.\n\n\n\n\nRFA No.236\/2000                                     Page 11 of 26<\/span>\n                   \uf0b7 Coexisting causes of non\n                    dilating pupil like senile\n<\/pre>\n
                    miosis(rigid) pseudaexfoliation
\n                    syndrome and several others.<\/p><\/blockquote>\n
                  \uf0b7 It is well known, that ICCE
\n                    (Intra capsular extractions)
\n                    has more incidence of vitreous
\n                    loss     as      compared      to
\n                    conventional      ECCE     (Extra
\n                    capsula cataract extractions.).\n<\/p><\/blockquote>\n
                    Old     age     perse   is    not
\n                    associated with vitreous loss
\n                    unless coexistent with hyper
\n                    mature cataract, glaucoma,
\n                    pre-existing posterior capsular
\n                    defect,      posterior      polar
\n                    cataract, which can increase
\n                    the risk of vitreous loss.<\/p><\/blockquote>\n
                  \uf0b7 Vitreous can be there in the
\n                    interior   chamber      without
\n                    surgery     in     cases     of
\n                    spontaneous         subluxtion\/
\n                    dislocation of the lens in a
\n                    hyper mature cataract or
\n                    when there is history of troma.
\n              Q.3 Whether non removal of all the
\n              stitches put by the surgeon in connection
\n              with the cataract operation can result in
\n              or contribute to the loss of eye sight?
\n              Ans. Non removal of stitches usually does
\n              not cause loss of eye sight. Most ECCE
\n              surgeries where sutures\/stitches are
\n              used are made of nylon which is inert
\n              and is normally not removed until
\n              indicated due to significant suture
\n              induced astigmatism. If silk sutures are
\n              used then they need to be removed<\/p>\n
RFA No.236\/2000                                   Page 12 of 26<\/span>
\n               within 6 to 8 (six to eight) weeks. Suture
\n              related infection can occur which can
\n              lead to infection to the eye.
\n               The questions suggested by Ms. Mala
\n              Goel, Counsel for the appellant & put to
\n              Dr. Jeewan S. Tatyal by me alongwith his
\n              answers\/deposition is an under;
\n              Q.1 What is ICCE?\n<\/p><\/blockquote>\n
              Ans. ICCEE is a type of cataract surgery
\n              where the lens is removed in toto
\n              (complete).   The    newer     surgeries
\n              performed now a days are ECCE where
\n              an opening is made in the anterior
\n              capsule of the lens and the lens in
\n              removed leaving the capsular bag intact.
\n              Q. 2 What is vitreous loss?\n<\/p><\/blockquote>\n
              Ans. Vitreous is a Gel-like structure
\n              which is located behind the lens. During
\n              cataract surgery vitreous can pro lapse
\n              into the anterior chamber if there is a
\n              break in the posterior capsule or anterior
\n              vitreous phase.\n<\/p><\/blockquote>\n
              Q.3 What it the effect of vitreous loss?
\n              Ans. The major effect of vitreous loss are
\n              seen if it is not managed effectively. In
\n              the immediate post operative period
\n              there can be increased inflammation,
\n              glaucoma and corneal oedema. In the
\n              long term patient can develop retinal
\n              oedema and corneal decomposition.
\n              These can cause decrease in vision. The
\n              retinal oedema can also occur due to age
\n              related changes also.       The hproper
\n              management of vitreous loss includes
\n              complete removal of vitreous from<\/p>\n
RFA No.236\/2000                                   Page 13 of 26<\/span>
\n               anterior    chamber     by    manual     or
\n              automated vitrectomy machines.         The
\n              prolonged use of anti inflammatory drugs
\n              in the post operative period also helps.
\n               Implantation of IOL (Intro Ocular Lens)
\n              will depend upon adequate support of
\n              posterior capsule for posterior chamber
\n              IOL, or sufficiently normal anterior
\n              chamber anatomy for an anterior
\n              chamber IOL. The IOL implantation may
\n              be avoided in the same sitting and the
\n              patient can be reassessed after 6 to 8
\n              weeks. A secondary IOL can then be
\n              planted.\n<\/p><\/blockquote>\n
              Q.4. What is slit lamp?\n<\/p><\/blockquote>\n
              Ans. Slit lamp is an apparatus need for
\n              the examination of eyes under variable
\n              magnification.\n<\/p><\/blockquote>\n
              Q.5 In which part of eye is cataract is
\n              formed?\n<\/p><\/blockquote>\n
              Ans. Cataract is formed in the natural
\n              crystalline lens.\n<\/p><\/blockquote>\n
              Q.6 Can removal of cataract by ICCE
\n              cause vitreous loss?\n<\/p><\/blockquote>\n
              Ans. Yes, the highest incidence of
\n              vitreous loss has been reported with
\n              ICCE surgery as compared to ECCE
\n              surgery.\n<\/p><\/blockquote>\n
              Q.7. Can cornea ulcer be caused by
\n              vitreous loss?\n<\/p><\/blockquote>\n
              Ans. Vitreous loss perse will     not be
\n              associated with a corneal ulcer. Vitreous
\n              when associated with a compromised
\n              surgical wound or a compromised<\/p>\n
RFA No.236\/2000                                   Page 14 of 26<\/span>
\n               cornea, may be associated with a corneal
\n              ulcer.”\n<\/p><\/blockquote>\n
15. In the light of evidence recorded in this case as<\/p>\n
well as statement of Dr. Jeewan S. Tityal, it is to be<\/p>\n
seen as to whether there has been any negligence on<\/p>\n
the part of respondent doctor, while performing the<\/p>\n
operation of the eye of appellant or not.<\/p>\n
16. Before entering into this venture, the first and<\/p>\n
foremost question which arises for consideration is as<\/p>\n
to which doctor has performed operation, on the eye of<\/p>\n
the appellant and whether he is negligent.<\/p>\n
17. It is appellant’s case throughout, that respondent<\/p>\n
No.3, Dr. O.N. Krishan, performed his eye operation<\/p>\n
and there has been gross negligence on part of<\/p>\n
respondent No.3.\n<\/p>\n<\/p>\n
18. Appellant, in his evidence stated that, he was<\/p>\n
operated upon for extraction of cataract of right eye on<\/p>\n
19th October, 1987.         His half eye stitches, were<\/p>\n
RFA No.236\/2000                                Page 15 of 26<\/span>
\n removed by Dr. Tarun and for remaining half, he was<\/p>\n
called after one week. He again went there after one<\/p>\n
week.       They told him that his eye was covered with<\/p>\n
water and therefore it was not possible to remove the<\/p>\n
stitches. Again he visited the hospital and approached<\/p>\n
Dr. Krishna and Dr. Sharma, but his remaining stitches<\/p>\n
were never removed. Dr. Sharma examined him fully<\/p>\n
and informed that a hole had cropped up in the retina<\/p>\n
and he was not rightly operated upon.\n<\/p>\n<\/p>\n
19. In cross-examination, appellant stated that Dr.<\/p>\n
Krishan has prescribed few drops but he did not listen<\/p>\n
to him properly and sent him out of this room, when he<\/p>\n
went to meet him, after the discharge.<\/p>\n
20. There         is   nothing   on   record   to   show            that<\/p>\n
respondent No.3, had ever conducted the operation of<\/p>\n
the appellant’s eye. Respondent No.3 who appeared as<\/p>\n
DW 1, in his cross-examination stated that he had not<\/p>\n
conducted any operation in this case and he is neither<\/p>\n
RFA No.236\/2000                                     Page 16 of 26<\/span>
\n personally concerned nor had any personal knowledge<\/p>\n
about this case.\n<\/p>\n<\/p>\n
21. On the other hand, it is DW 2, Dr. Anil Tara, who<\/p>\n
has conducted the operation of the appellant in this<\/p>\n
case,      as     in   his   examination-in-chief,   DW       2      has<\/p>\n
categorically          stated   that   he   had   conducted          the<\/p>\n
operation of the appellant.\n<\/p>\n<\/p>\n
22. Since respondent No.3 is not at all connected with<\/p>\n
the operation of the appellant, I fail to understand, as<\/p>\n
to how he has been made as a party in this case. As<\/p>\n
respondent No.3 has not conducted the operation of<\/p>\n
appellant, no relief can be granted against him.<\/p>\n
23. Apex Court has held in Udit Narain Singh<\/p>\n
Malpaharia v. Addl. Member, Board of Revenue,<\/p>\n
Bihar,<\/a> [(1963) Supp 1 SCR 676], that there is a<\/p>\n
distinction between “necessary party” and “proper<\/p>\n
party”. In that case, the Court said;\n<\/p>\n<\/p>\n
             “The law on the subject is well settled: It
\n             is enough if we state the principle. A
\n             necessary party is one without whom no<\/p>\n
RFA No.236\/2000                                      Page 17 of 26<\/span>
\n              order can be made effectively; a proper
\n             party is one in whose absence an effective
\n             order can be made but whose presence is
\n             necessary for a complete and final
\n             decision on the question involved in the
\n             proceeding.”\n<\/p><\/blockquote>\n
24. Since respondent No.3 did not conduct the<\/p>\n
operation of the appellant, so, no negligence can be<\/p>\n
attributed to him.\n<\/p>\n<\/p>\n
25. Nevertheless, fact remains, that appellant was<\/p>\n
operated upon for cataract of his right eye in Ram<\/p>\n
Manohar Lal Hospital, and this fact has been admitted<\/p>\n
by DW2, Dr. Anil Tara. DW 2 in his statement has also<\/p>\n
stated that appellant’s ailment regarding muscular<\/p>\n
degeneration is an age related process and has nothing<\/p>\n
to do with the operation.\n<\/p>\n<\/p>\n
26. In cross-examination, he stated that as per<\/p>\n
document Ex- DW 2\/2, dated 19th October, 1987,<\/p>\n
appellant was operated upon in their hospital and he<\/p>\n
conducted the operation.          He advised removal of<\/p>\n
stitches on 18th November, 1987.             He does not<\/p>\n
RFA No.236\/2000                                 Page 18 of 26<\/span>
\n remember, whether he removed the stitches or not.<\/p>\n
He denied the suggestion that due to wrong operation<\/p>\n
conducted by him, the stitches in the eye of the<\/p>\n
appellant could not be removed completely, and his<\/p>\n
right eye got damaged.\n<\/p>\n<\/p>\n
27. As per discharge slip, Ex. PW 1\/1, the appellant<\/p>\n
was advised for removal of stitches.       There is no<\/p>\n
material on record to show that after 1st November,<\/p>\n
1987 till 27th October, 1988, appellant ever visited Dr.<\/p>\n
Ram Manohar Lohia Hospital, where he was operated<\/p>\n
upon. Only document placed on record, thereafter is<\/p>\n
Ex- PW 1\/2, the O.P.D. Card dated 22nd October, 1988.<\/p>\n
So, as per medical evidence on record, after 1st<\/p>\n
November, 1987, appellant did not visit Dr. Ram<\/p>\n
Manohar Lal Hospital till 27th October, 1988. This fact<\/p>\n
has been corroborated by respondent No.3 in his<\/p>\n
evidence, who has stated, that appellant was operated<\/p>\n
in the Eye Department on 19th October, 1987. He had<\/p>\n
submitted a discharge slip dated 28th October, 1987<\/p>\n
and subsequently, appellant came after one year for<\/p>\n
RFA No.236\/2000                             Page 19 of 26<\/span>
\n check-up while he was supposed to come after one<\/p>\n
week.\n<\/p>\n<\/p>\n
28. In the light of this evidence, it is to be seen as to<\/p>\n
whether doctors of Dr. Ram Manohar Lal Hospital are<\/p>\n
negligent or not, when admittedly, appellant after his<\/p>\n
operation did not act as per advice of the doctor and<\/p>\n
visited the hospital for treatment after one year. Since<\/p>\n
there is a gap of one year, it cannot be said with<\/p>\n
certainty, that problem in the eye of appellant which<\/p>\n
occurred in October, 1988 is due to negligence act of<\/p>\n
the doctors.\n<\/p>\n<\/p>\n
29. As per statement of Dr. Jeewan S. Tityal, it is<\/p>\n
clear that vitreous loss does not happen due to<\/p>\n
negligence. He has further stated that non-removal of<\/p>\n
stitches usually does not cause any loss of eye sight<\/p>\n
and if silk sutures are used, then they need to be<\/p>\n
removed within six to eight weeks.\n<\/p>\n
RFA No.236\/2000                              Page 20 of 26<\/span>\n<\/p>\n
 30. There is nothing on record to show that appellant<\/p>\n
went to Dr. Ram Manohar Lohia Hospital for removal<\/p>\n
of the stitches as advised.\n<\/p>\n<\/p>\n
31. What is “negligence”, has been discussed by<\/p>\n
Supreme Court in length at Jacob Mathew v. State of<\/p>\n
Punjab and Anr. AIR<\/a> 2005 SC 3180. It lays down that;<\/p>\n
               “The     jurisprudential    concept    of
\n             negligence defies any precise definition.
\n             Eminent jurists and leading judgments
\n             have assigned various meanings to
\n             negligence. The concept as has been
\n             acceptable     to   India   jurisprudential
\n             thought is well-stated in the Law of Torts,
\n             Ratanlal & Dhirajlal (Twenty-fourth
\n             Edition 2002, edited by Justice G.P.
\n             Singh).    It is stated (at p.441-442) –
\n             “Negligence is the breach of a duty
\n             caused by the omission to do something
\n             which a reasonable man, guided by those
\n             considerations which ordinarily regulate
\n             the conduct of human affairs would do, or
\n             doing something which a prudent and
\n             reasonable man would not do. Actionable
\n             negligence consists in the neglect of the
\n             use of ordinary care or skill towards a
\n             person to whom the defendant owes the
\n             duty of observing ordinary care and skill,
\n             by which neglect the plaintiff has suffered
\n             injury to his person or property…The
\n             definition involves three constituents of
\n             negligence: (1) A legal duty to exercise
\n             due care on the part of the party<\/p>\n
RFA No.236\/2000                                  Page 21 of 26<\/span>
\n              complained    of    towards    the   party
\n             complaining the former’s conduct within
\n             the scope of the duty; (2) breach of the
\n             said duty; and (3) consequential damage.
\n             Cause of action for negligence arises only
\n             when damage occurs; for, damage is a
\n             necessary ingredient of this tort.\n<\/p><\/blockquote>\n
                 According to Charles worth & Percy
\n             on Negligence (Tenth Edition, 2001), in
\n             current forensic speech, negligence has
\n             three meanings. They are: (i) a state of
\n             mind, in which it is opposed to intention;\n<\/p><\/blockquote>\n
             (ii) careless conduct; and (iii) the breach
\n             of duty to take care that is imposed by
\n             either common or statute law. All three
\n             meanings are applicable in different
\n             circumstances but any one of them does
\n             not necessarily exclude the other
\n             meanings. (Para 1.01) The essential
\n             components of negligence, as recognized,
\n             are three: “duty”, “breach” and “resulting
\n             damage”, that is to say:-\n<\/p><\/blockquote>\n
              1. the existence of a duty to take care,
\n             which is owed by the defendant to the
\n             complainant;\n<\/p><\/blockquote>\n
              2. the failure to attain that standard of
\n             care, prescribed by the law, thereby
\n             committing a breach of such duty; and<\/p>\n<\/blockquote>\n
              3. damage, which is both causally
\n             connected   with     such   breach   and
\n             recognized by the law, has been suffered
\n             by the complainant. (Para 1.23)<\/p>\n
RFA No.236\/2000                                  Page 22 of 26<\/span>
\n               If the claimant satisfies the court on the
\n             evidence that these three ingredients are
\n             made out, the defendant should be held
\n             liable in negligence.”\n<\/p><\/blockquote>\n
32. Further held;\n<\/p>\n
                 “The degree of skill and care required
\n              by a medical practitioner is so stated in
\n              Halsbury’s Laws of England (Fourth
\n              Edition, Vol.30, Para 35):-\n<\/p><\/blockquote>\n
                  “The practitioner must bring to
\n                  his task a reasonable degree of
\n                  skill and knowledge, and must
\n                  exercise a reasonable degree of
\n                  care. Neither the very highest nor
\n                  a very low degree of care and
\n                  competence, judged in the light of
\n                  the particular circumstances of
\n                  each case, is what the law
\n                  requires, and a person is not
\n                  liable in negligence because
\n                  someone else of greater skill and
\n                  knowledge would have prescribed
\n                  different treatment or operated in
\n                  a different way; nor is he guilty of
\n                  negligence if he has acted in
\n                  accordance      with   a    practice
\n                  accepted     as    proper    by    a
\n                  responsible body of medical men
\n                  skilled in that particular art, even
\n                  though a body of adverse opinion
\n                  also existed among medical men.\n<\/p><\/blockquote>\n
RFA No.236\/2000                                   Page 23 of 26<\/span><\/p>\n
                   Deviation from normal practice is
\n                  not   necessarily    evidence    of
\n                  negligence. To establish liability
\n                  on that basis it must be shown (1)
\n                  that there is a usual and normal
\n                  practice; (2) that the defendant
\n                  has not adopted it; and (3) that
\n                  the course in fact adopted is one
\n                  no professional man of ordinary
\n                  skill would have taken had he
\n                  been acting with ordinary care.”\n<\/p><\/blockquote>\n<\/blockquote>\n
33. As per case of the appellant, he was discharged in<\/p>\n
normal condition from the hospital after his eye<\/p>\n
operation on 28th October, 1987 and thereafter, did not<\/p>\n
visit the hospital for about one year. The fact that eye<\/p>\n
of the appellant did not give him any trouble for a<\/p>\n
period of about one year after his operation, goes on to<\/p>\n
show that there was no problem in the eye of the<\/p>\n
appellant during that period. Problem in the eye of the<\/p>\n
appellant occurred after about one year after his<\/p>\n
operation, and for this, the doctors who performed the<\/p>\n
operation one year ago, cannot be held liable.\n<\/p><\/blockquote>\n
34. The case of the appellant is also that he had<\/p>\n
undergone treatment in various other hospitals and<\/p>\n
RFA No.236\/2000                                  Page 24 of 26<\/span>
\n doctors           of   other   hospitals   have   attributed          this<\/p>\n
negligence to the doctors of Ram Manohar Lal<\/p>\n
Hospital, who had performed the operation.                    In this<\/p>\n
regard it would be fruitful to reproduce the findings<\/p>\n
given by the trial court. The trial court observed that;<\/p>\n
              “As a matter of fact, his story
\n              remains      opague     despite      the
\n              explanations given by him. The
\n              evidence given by the plaintiff stands
\n              rebutted by the statement of DW.2. It
\n              is   beyond     the    pale     of    my
\n              comprehension as to why the
\n              important witnesses such as the
\n              doctors from the Rajinder Parsahd
\n              Eye Centre, All India Institute of
\n              Medical Sciences, Bhai PArmanand
\n              Eye Hospital, Dr. Lohia, a private
\n              practitioner in Shakarpur, had not
\n              been produced in the dock. It may be
\n              recalled that the plaintiff has clearly,
\n              specifically and unequivocally stated
\n              that the Dr. Lohia, Dr. Setrhi and
\n              doctors from AIIMS has informed him
\n              that the doctors of Ram Manohar
\n              Lohia     Hospital     had      wrongly
\n              conducted     the    operation.      The
\n              evidence of the above said doctors
\n              carrying infinite value would have
\n              gone a long way to throw light on this
\n              controversy.    Absence      of    these<\/p>\n
RFA No.236\/2000                                       Page 25 of 26<\/span>
\n               doctors or medical evidence dampens
\n              the ardour of the plaintiff’s case.”\n<\/p><\/blockquote>\n
35. So, from the entire material available on record, I<\/p>\n
come to the conclusion, that appellant has failed to<\/p>\n
prove, that there was any negligence on the part of the<\/p>\n
doctors           of   Ram   Manohar   Lohia   Hospital,          who<\/p>\n
performed eye operation of the appellant in 1987.<\/p>\n
Since, there is no negligence on the part of any of the<\/p>\n
doctors, various judgments cited by learned counsel<\/p>\n
for the appellant, in support of its case are not<\/p>\n
applicable to the facts of the present case.<\/p>\n
36. Consequently, the appeal filed by the appellant is<\/p>\n
not maintainable and the same is hereby dismissed.<\/p>\n
37. Parties shall bear their own costs.<\/p>\n
38. Trial court record be sent back.\n<\/p>\n<\/p>\n
26th May, 2009                           V.B.GUPTA, J.\nrb\n\n\n\n\nRFA No.236\/2000                                   Page 26 of 26<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Shri Jagat Narain Sharma vs Union Of India & Ors. on 26 May, 2009 Author: V.B.Gupta * HIGH COURT OF DELHI : NEW DELHI RFA No.236\/2000 % Judgment reserved on:5th May, 2009 Judgment delivered on:26th May, 2009 Shri Jagat Narain Sharma S\/o. Late Pt. Ram Prasad, C\/o. Mrs. Savita Sharma Social Worker […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-187920","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nShri Jagat Narain Sharma vs Union Of India & Ors. on 26 May, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-jagat-narain-sharma-vs-union-of-india-ors-on-26-may-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Jagat Narain Sharma vs Union Of India & Ors. on 26 May, 2009 - 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