http://indiankanoon.org/doc/1917076/
ACHUTRAO HARIBHAU KHODWA
Vs.
STATE OF MAHARASHTRA AND ORS.
Decided on: 20/02/1996
" Observation & Order:
The appellants are aggrieved by the judgment of the Aurangabad Bench of the Bombay High Court which has reversed a decree for Rs.36,000/− passed by the Civil Judge, Second Division, Aurangabad, as damages on account of the death of one Chandrikabai who was the wife of appellant no.1 and the mother of appellant nos. 2 to 5, after she had undergone a sterilization operation at the Civil Hospital, Aurangabad.
According to the appellants, respondent nos. 2 and 3 assisted Dr. Divan in this Operation. Dr. Divan, as a result of the second operation, found that a mop (towel) had been left inside the body of Chandrikabai when sterilization operation was performed on her.
In our opinion, therefore, the High Court clearly fell in error in reversing the judgment of the trial court and in dismissing the appellants’ suit. For the aforesaid reasons, this appeal is allowed, the judgment of the High Court of Bombay under appeal is set aside and the judgment and decree of the trial court is restored. The appellants will also be entitled to costs throughout.
S. Thamil Selvi
Vs.
Dr. Sooriya Kala And anr
Decided on 7/3/2007
" Observation & Order:
57. In the head notes of the oft cited case decided by the Supreme Court of India, Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. , it is stated that:-
In this case Tort− Medical negligence − Mop (towel) left in peritoneal cavity of patient while performing sterilization operation leading to complications and death− But for the fact that mop was left inside the body causing peritonitis, death would not have occurred − Doctor held negligent in discharge of duty −Res ipsa loquitur doctrine applied." This case is comparable to the case on hand.
58. In view of the above analysis we have no hesitation to conclude that there has been a gross negligence on the part of opposite parties.
(6) ’The complainants have produced a final bill of the Suriya Hospital before us which is in tune of Rs. 1,86,849.91 dated 6.12.1995. This has to be granted to her. Subsequently, she must have spent money on medicines, the details of which are not before us but it can easily be computed that she would have spent about a lakh of rupees. She has claimed damages to the tune of 1 crore and 70 lakh for mental agony, etc. Towards this we hereby award Rs. 10 lakh. Complainant has claimed Rs. 50 lakh towards loss of employment of the husband/As we do not have sufficient evidence for this we are unable to award any compensation. Totally we award Rs. 12,86,850 lakh and cost of Rs. 25,000 against the opposite parties. In case this amount is not paid within 4 weeks of the receipt of this copy of this order by the opposite party the complainant will be entitled to interest on the said amount (r) 9% p.a till the date of payment.
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