G.N. Vaidya, J. - (1.) THE above first appeals raise an important question of the liability of a medical consultant of a company in tort. They are directed against the judgment and decree passed by the Joint Civil Judge, Senior Division, Poona, on April 30, 1965, ordering Defendant No. 1 Phillips India Ltd., and Defendant No. 2 Dr. Shaikh Suleman, a medical practitioner of Poona, to pay to the Plaintiff -Respondent No. l. Kunju Punnu, the mother of the deceased employee of Defendant No. 1, Rs. 18.000 together with costs of the suit and future interest on that amount at the rate of 6 per cent, per annum till satisfaction.
(2.) THE allegations made in the plaint presented in forma pauperis by Kunju Punnu on July 11, 1962 and registered as Special Civil Suit No. 31 of 1963, can be briefly summarised as under: The Plaintiff's son, V.K. Gopal, was an employee of Defendant No. 1 company on a monthly salary of Rs. 105 as a machine operator. Defendant No. 2, as the Medical Officer and adviser of Defendant No. 1 company. Defendant No. 2, as the Medical Officer of the company, had to treat the patients of Defendant No. 1 company free of charge. On December 20, 1961, the Plaintiff's son, Gopal, fell ill suddenly, while he was working in Defendant No. l's factory at Loni Kalbhor. Defendant No. 2 treated and advised him to take leave for two days without making a proper diagnosis of the disease from which Gopal was suffering. It was alleged that although the deceased Gopal was suffering from smallpox, Defendant No. 2 carelessly treated him as a patient suffering from venereal disease, notwithstanding that Shankar, the brother of the deceased, told Defendant No 2 that Gopal was not suffering from any venereal disease. Shankar, who was the driver in the service of the General Manager of the company, told the General Manager about this and although the General Manager assured that he would tell Defendant No. 2 to give proper treatment, he failed to tell Defendant No. 2 anything of that kind. It is further alleged that as a result of this wrong and negligent treatment by Defendant No. 2 Gopal began to get high temperature and cold. Even then, he was asked by Defendant No. 2 to work in the factory and he worked on December 22,1961. As his temperature increased, he could not continue working. He went to Defendant No. 2 and asked his advice. Defendant No. 2 advised him to take another two days leave and Gopal continued to be under the treatment of Defendant No. 2, though Gopal was not suffering from venereal disease. Defendant No. 2 gave very strong treatment and this made the patient worse. Then Defendant No. 2 got him admitted in his dispensary on December 25, 1961 at about 11.30 a.m., kept him there for about 24 hours, but continued to treat him very negligently and carelessly on the basis that Gopal was suffering from venereal disease. Gopal became serious. Defendant No. 2 sent him to Dr. Grant's Nursing Home, it was, however, too late and Dr. Grant, funding that it was a case of smallpox, sent Gopal to the infectious disease hospital, where Gopal died on December 31, 1961. It was, therefore, submitted by the Plaintiff that her son Gopal died on account of gross and culpable negligence and wrong treatment given by Defendant No. 2 and thereby the Plaintiff was required to suffer a heavy loss amounting to Rs. 25,000, which Defendant No. 1 was liable to pay as the employer of Defendant No. 2. The Plaintiff further claimed damages, in addition to Rs. 25,000, of Rs. 795, the amount which the Plaintiff was required to pay to Dr. Grant and his Nursing Home, and Rs. 222.51 p., the amount which she had to spend for purchasing medicines and injections, and remitting Rs. 17.51 p., she claimed in the suit Rs. 26,000. The suit was resisted by both the Defendants. In its written statement, Exh. 12, Defendant No. 1 company denied its liability to pay any compensation and denied all the allegations made against Defendant No. 1 company and Defendant No. 2, and, in particular, the allegation that Defendant No. 2 was an employee of Defendant No. 1. In his written statement Exh. 15, Defendant No. 2 admitted that he was a permanent Adviser and Consultant in the employment of Defendant No. 1 on part -time basis, but denied that the deceased Gopal died of smallpox or that he was under his treatment at the time of the death. According to him, the deceased was not treated by him with gross negligence or carelessness, nor was he treated as a V.D. patient. He contended that as soon as he found that there was rash on the body of the deceased Gopal, he immediately consulted Dr. Grant, who was also the Medical Consultant of Defendant No. 1 and Dr. Grant advised Gopal's brother to get Gopal admitted in Sassoon Hospital and it was the deceased Gopal's brother, Shankar, who desired to get Gopal admitted in the Nursing Home of Dr. Grant, who, in fact, carried out all pathological and other investigations and gave him the best available treatment in Poona. Thereafter, Defendant No. 2 was watching the progress of the case.. There were signs of improvement, when the patient was removed by his brother and taken to the Nayadu infectious diseases hospital and from there to the Cantonment General Hospital, where, ultimately, he died on December 31, 1961. Defendant No. 2 contended that the deceased Gopal was treated by him as an employee of Defendant No. 1 company in accordance with the rules of Defendant No. 1 with all due diligence and care and as such, neither Defendant No. 2 nor Defendant No. 1 company was liable to pay any damages to the Plaintiff.
(3.) IN view of these contentions, the learned Civil Judge framed fifteen issues, but the important issue to be decided was whether the Plaintiff proved that Defendant No. 2 treated the deceased with gross negligence and carelessness.;