KALAWATI AND ORS. AND GIAN CHAND Vs. STATE OF H.P.

JUDGEMENT

(1.) THE prayer in these two petitions, inter alia, is that the respondents be directed to pay adequate compensation/damages to the petitioner(s) in the respective case for the death of Laiq Ram and Rakesh Kumar, which occurred as a result of nitrous oxide having been administered to the deceased persons instead of oxygen at the time of the performance of the surgical operation upon them on September 15,1986 and September 17, 1986 respectively, on account of the negligence on the part of the staff of the Indira Gandhi Hospital, Shimla. The petitions were instituted on April 13, 1987 and on April 20, 1987 affidavit(s) in reply were directed to be filed on or before May 7, 1987. Applications (CMP No. 316 of 1987 and CMP No. 317 of 1987 respectively) were moved by and on behalf of the respondents on May 8, 1987 in these cases praying that the time for filing the reply affidavit be extended by eight weeks. Orders were passed on the said applications on May 26, 1987 in the following terms: Adjourned to June 9, 1987 in order to enable the Government to decide the question of ex gratia payment of compensation to the petitioners without prejudice to rights and contentions.

(2.) ON June 29,1987, when the cases reached hearing, the Court made a reference to the orders passed on May 26, 1987 and proceeded to make the following observations: It was expected that the Government would take a decision on the question of ex gratia payment of compensation to the petitioners on or before the said day (June 9, 1987). The learned Advocate General states that case is still under consideration. The State Government is directed to take an appropriate decision on the question of ex gratia payment of compensation to the petitioners failing which the Court will consider granting appropriate relief on the judicial side, final or interim. The decision of the State Government will be placed on the record of the case on or before July 16, 1987. (Bracketted portion added in the quotation for clarity) Instead of complying with this order, the respondents have chosen to move yet another application in each case (CMP No. 618 of 1987 and CMP No. 619 of 1987) on July 27, 1987 seeking extension of time by ten weeks "for filing the reply" on behalf of the respondents. The applications incidentally recite that the matter with regard to the payment of compensation to the petitioner(s) is under active consideration at the Government level. However, no extension of time is prayed for arriving at the said decision and the purport of the applications appears to be that the respondents really want time to file the affidavit(s) in reply to contest the petitions. The applications have been granted by separate orders of the day so far as the extension of time for the filing of the a affidavit(s) is concerned. However, as observed in the order dated June 29, 1987, the Court proceeds to consider the question of granting appropriate interim relief to the petitioners by ordering the payment of ad hoc or ad interim compensation/grant.

(3.) THE findings of the magisterial inquiry establish, prima facie, the negligence of the members of the staff of the Indira Gandhi Hospital, Shimla. The Magistrate has found that Ward Boy Amin Chand had removed the anesthesia machine on September 14, 1986 while cleaning Operation Theatre No. 3 after disconnecting the same from hose pipes by opening the hexagonal nut in the valve unit and that after cleaning the Operation Theatre he had placed the machine back in position but had wrongly reconnected the pipes with the result that the oxygen and nitrous oxide gas hose pipes were interchanged "inadvertantly". The said act on his part, according to the Magistrate, was not deliberate but disclosed negligence in the performance of duties on two counts: (1) he opened the pipes, removed the machine and reconnected the pipes after replacing the same which he was not supposed to do, and (2) he failed to report to the higher authorities that he had removed the anaesthesia machine from the Operation Theatre and reconnected it. There is a further finding to the effect that the checks and procedures as outlined by Dr B. Chhabra, Head of Department of Anaesthesia, Indira Gandhi Hospital, Shimla, and as mentioned in the expert opinion of Dr. Hariwir Singh. Head of Department of Anaesthesia, PGI, Chandigarh, were not conducted either by the Anaesthetist Dr. A K. Gupta or by Dr. D.R. Sharma before the start of the operations and that if those checks and procedures had been duly conducted, the interchange of the oxygen and nitrous oxide tubes would have been detected much earlier and the accidents would have been averted. The report further indicts virtually everyone from the Medical Superintendent downwards for lapses of diverse kinds.