Mrs. Arpana Dutta vs Apollo Hospitals Enterprises And ...

Madras High Court

JUDGMENT I. David Christian, J.

1. Suit for damages.

Plaint allegations briefly stated are as follows :--

Plaintiff is a citizen of India and hails from Guwahati in Assam. She was given in marriage to one Tapan K. Dutta,
who is a resident of United States of America. After living in United States of America of some years, the plaintiff
along with her husband proceeded to Saudi Arabia and the husband is gainfully employed in Saudi Arabia. The
plaintiff is residing with her husband in Saudi Arabia and she is a house wife looking after the house and taking care
of her husband and children. By about 1986, the plaintiff developed certain gynaecological problems. When she
consulted Doctors, they diagnosed that the plaintiff is having a cyst in one of her ovaries, for which they prescribed
certain treatment. Even after she took medicines, she was feeling discomfort and the Doctors abroad advised her to
go in for removal of uterus, a surgery known in medical terms as Hysterectomy. It was suggested that only such a
surgery will give her relief from her problems. Since the surgery suggested was a major one, which would
necessitate a period of recuperation, the plaintiff decided to have the surgery in India, where she could count upon
the help from friends and relations to lookafter her during the period of recuperation. When the plaintiff made
enquiries in India as to where, she could have best medical care and service, she was recommended to undergo
surgery in the second defendant Hospital, namely Apollo Hospitals, Madras, run by the first defendant company. The
plaintiff came to know that the second defendant would be charging fees and other charges which are higher in
comparison to other private hospitals. The plaintiff was assured that the second defendant would assure highest
standard of care commensurate with the charges levied by them. The plaintiff came to India in the month of June,
1991 and obtained a letter of Introduction from one Dr. Zaman, a leading Surgeon in Assam, addressed to the
Chairman of the first defendant. She came down to Madras and she met Dr. Prathap C. Reddy, the Chairman, who
referred the plaintiff to the third defendant because the plaintiff was suffering from gynaecological problems and the
third defendant is a qualified Doctor and a gynaecologist. The third defendant examined the plaintiff and advised her
to undergo hysterectomy for removal of the uterus and ovary. The plaintiff was also advised to undergo a Master
Health Check-up to find out whether she would be fit for surgery. The reports of the check-up revealed that the
plaintiff was having Cystic Overies, Mammary Dysplasia and Cervical Spondylosis. The plaintiff also underwent an
ultra sound abdomen test. The third defendant evaluated the various test reports, of the plaintiff and diagnosed the
ailment of the plaintiff as a Bilateral Endometriotic Cyst and Uterine Fibroids. The third defendant advised the
plaintiff that only course open to her would be to operate upon her for removal of total abdominal hysterectomy. The
plaintiff also was informed that it is major surgery, but however, the third defendant assured the plaintiff that she
would be taken care of and best care and attention would be given to her and there is no room for any worry. The
plaintiff also consented to undergo surgery in the hospital of the second defendant. The plaintiff made a deposit of
Rs. 25,000/- towards part of the fees and charges. The plaintiff got herself admitted in the second defendant hospital
on 19-6-1991 and the surgery is was to take place on 21-6-1991. After admission, the second defendant hospital
conducted certain tests. On 21-6-1991 the plaintiff was taken to the operation theatres in the afternoon and operation
was done by the third defendant under general Anaesthesia. The plaintiff was removed from the operation theatre to

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the ward at about 4.00 pm. on the same day. The surgery was done by the third defendant assisted by other Doctors,
nurses and staff attached to the second defendant hospital. The operation notes prepared by the defendants also
confirmed that abdomen of the plaintiff was opened by fannenstel incision and uterus was removed along with some
mass that was found around the uterus. After the surgery, the plaintiff gained consciousness and talked. After the
effect anaesthesia disappeared the plaintiff felt discomfort and severe pain over the abdominal region. The plaintiff
was administered pain killers and other drugs to bring down the temperature. Even on the second day, the plaintiff
developed an uneasy feeling due to a painful lump which she was able to feel in the abdominal region, which is
around the place where the surgical incision was made. When the third defendant came to examine her, the plaintiff
complained of pain and an uneasy feeling and she also informed that she felt a lump in the abdominal region. The
third defendant after examining her and feeling the lump at the abdominal region, Informed the plaintiff that it must
be due to fluid collection in the region as a result of surgery and the fluids would be absorbed in course of time. The
third defendant also told the plaintiff that if the fluids did not get absorbed and pain continued she would aspirate the
fluids and remove the same. The third defendant in her notes has also noted that there was indurated mass measuring
3 x 4 cms was felt between the umblicus and suture line". On the advise of the third defendant ultra sound tests were
carried on for the plaintiff and two such tests were prescribed by the third defendant, one a Vaginal ultra sound
examination and another abdomen ultra sound test. When the plaintiff was undergoing ultra sound tests, number of
Doctors were present and she heard some Doctors expressing that there was something unusual in the tests result.
But, the third defendant insisted that the lump was as a result of fluid collections and the same would get absorbed in
the system in 3 to 4 months. The third defendant concluded that results of the ultra sound report revealed only fluid
collection between rectus and muscle layer. The third defendant did not even attempt to aspirate the fluid which she
has suggested earlier. Without giving any further treatments, the plaintiff was discharged from the care of the
defendants on 3-7-1991. The plaintiff settled the hills raised on her by the second defendant on 15-7-1991 which
included a sum of Rs. 3,500/- as professional fees to the third defendant. The second defendant informed that it was
the policy of the first and second defendants to raise bills in separately in the name of the hospital and also in the
name of the surgeon who did the surgery. The defendants advised the plaintiff to stay for few days in a hotel situated
adjacent to the hospital of the defendants. After staying for few days, the plaintiff left for Guwahati for rest and
recuperation. When she went to Guwahati. she continued to have discomfort and pain and the size of the lump also
did not recede. The plaintiff became extremely anxious and she was in continuous state of worry and suffering from
mental depression. The plaintiff had to accompany her husband to Saudi Arabia and accordingly she went. Her life
was normal before the operation, hut subsequent to the operation, she continued to suffer more pain in the abdomen.
She consulted with Gynaecologists in Saudi Arabia who after examining her told that the lump in the abdomen was
quite unusual and kept her under observation for few days. Some medicines were given, but there was no
improvement. Gynaecologists at the Royal Commission Medical Centre, Yanbu-al-Sinaiyah in Saudi Arabia advised
her to undergo X-Ray examination on 12-11-1991. The X-ray revealed that there was some foreign object in the
plaintiff s abdomen region. Therefore, the plaintiff was advised to undergo another major surgery for removal of the
foreign object. The plaintiff was admitted in Royal Commission Medical Centre and she was under the care of Dr.
Swapan K. Dutta and Dr. Finn and they operated upon the plaintiff on 9-12-1991. During the operation, the Doctors
found a foreign body, namely a big abdominal pack which was found strongly and firmly adhered to the loops of the
small Intestine and the Doctors who did the surgery removed it carefully. The abdominal pack which was found in
the abdominal region was taken out and the operation was completed and she was taken to her room. The foreign
object which was found embedded into her abdominal region was found to be a thick cloth of the size 12" x 12"
which is a surgical pack with 18" string attached to it. This surgical pack has been left in the abdomen during the
surgery done by the third defendant in the hospital of the second defendant. To remove this, the plaintiff has to
undergo a second surgery at Saudi Arabia after this was discovered through X-ray examination. The plaintiff has to
pay a sum of $ 1,500/- for undergoing the second surgery and for removal of the surgical pack which has been left in
her abdomen at the time of her first surgery done by the hospital of the second defendant by the third defendant.
Only after removal of this foreign body, namely the surgical pack, the plaintiff was relieved from the pain and

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suffering which she had been continuously undergoing for more than six months i.e. after the surgery at the second
defendant's hospital till the second surgery done at Saudi Arabia. The surgical pack that was removed from the
abdomen was also shown to the husband of the plaintiff and the plaintiffs husband wrote to the second defendant on
27-11-1991 drawing the attention of the second defendant with regard to the negligent manner in which surgery was
performed in their hospital. The defendants sent a reply on 13-12-1991 stating that the matter is under investigation.
The plaintiff's husband sent the X-ray report and also the skiagram to the defendants 1 and 2. The defendants 1 and 2
were also informed by the plaintiffs husband that a foreign object has been left behind in the abdomen of the plaintiff
at the time of surgery done in the hospital of the second defendant by the third defendant and that the same has been
removed only after a major operation done by the Doctors at the Royal Commission Medical Centre, Saudi Arabia.
Even though the defendants promised to send a detailed reply after fixing the responsibility, they have not sent any
such reply. The plaintiff was put to much pain, sufferings, emotional distress and trauma for a period of six months.
The surgery done by the third defendant in the hospital of the second defendant has not been properly done and the
defendants are guilty of gross negligence in conducting the operation, There has been a gross and inescapable failure
in the standard of care on the part of the defendants. The plaintiff was attending to all the needs of the family prior to
the operation, but after the operation -she was not able to do the normal work and because of the pain and suffering
she has to engage the services of a servant-maid to look after the work. She had to pay a sum of 9000 riyals
equivalent to a sum of Rs. 75,000/- to the servant-maid. During the period of second surgery and the treatment
thereafter at Saudi Arabi, her husband haS to be on her side for which he has to take leave for five weeks on loss of
pay and on account of this they have to suffer loss of earnings to the tune of Rs. 2,75,000/-. The plaintiff was unable
to enjoy the pleasures of life and she was not able to carry on her normal activities due to the negligence of the
defendants in doing the surgery on her. The suffering of the plaintiff was only on account of the negligence on the
part of the defendants but for which the plaintiff would have been leading a normal life and would have been an
integral part of the family. The plaintiff has suffered mental and physical pain, loss and damages on account of the
negligence of the defendants. Because of the negligence of the defendants, the plaintiff has suffered physical pain,
trauma, mental distress and financial loss and hardship and therefore she is entitled to claim a sum of Rs. 10 lakhs as
special damages, besides the general damages. In all the plaintiff is entitled to a sum of Rs. 25 lakhs as damages for
the negligence of the defendants which has resulted in suffering, pain, agony, mental depression and financial loss.
The plaintiff had to spent lot of money for coming to India, where the surgery took place and the hospital is situated.
Therefore. the plaintiff has filed the suit claiming damages of Rs. 25 lakhs and she is also entitled to interest at 21%
per annum from the date of the plaint till recovery of the said sum.

2. The defendants 1 and 2 filed a written statement contesting the claim of the plaintiff by contending as follows :--

The first defendant is a public limited company having its Registered Office at Madras and it is represented by the
Managing Director, Mrs. Preetha Reddy. The second defendant hospital is run by the first defendant and as such
there is no separate legal entity. The first defendant is represented by the Managing Director and impleadlng the
Chairman by the plaintiff is not necessary. The suit is not maintainable as against them either in law or on facts. The
defendants further submit that United India Insurance Company Limited is a necessary party to the proceedings
because the first defendant has taken a policy covering all the legal liability arising out of any claim made against the
first defendant. The defendants also have made a claim with United Insurance Company Limited enclosing a copy of
the plaint. So, the United India Insurance Co. Ltd., has to be made a party for proper adjudication. The third
defendant Dr. C. Swarnakumari is an independent consultant and she is not an employee of the first defendant. There
is no relationship between the first and third defendants as master and servant. The third defendant is an independent
consultant. In fact the third defendant pays service charges to the first defendant for availing the facilities viz.,
consultations suit, operation theatre and laboratories provided by the first defendant. The first defendant has no
control over the third defendant. This defendant is not aware of the problems the plaintiff had prior to her admission
in the hospital. It is not true to say that the fees and charges charged by these defendants are higher in comparison to

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other private hospitals. These defendants have been providing the best possible treatment and they are trying to
maintain highest standard. They do not charge heavily as stated in the plaint. The medical check-up and the
subsequent tests undergone by the plaintiff were all referred to only by the third defendant. These defendants
understand that the tests have been carried out and results have been evaluated by the third defendant, who seems to
have advised the plaintiff to undergo surgery for removal of uterus. The plaintiff has undergone surgery successfully
and she was given post operation treatment also in the hospital on the advice given by the third defendant. It is not
true to say that during ultrasound tests some of the Doctors have expressed about something being found unusual in
the abdominal region of the plaintiff as suggested in the plaint. The plaintiff has not named the Doctor or Doctors
who are said to have expressed such opinion. The third defendant is a competent surgeon with vast experience in the
field of obstetrics and Gynaecology. The third defendant is an independent consultant and not an employee of these
defendants and the patients admitted under the care of the third defendant are directed to pay the fee to the third
defendant. This is the established practice followed by these defendants. The third defendant was not acting either
under the control or directions of these defendants. These defendants are not aware of the opinion of the
Gynaecologists who have examined the plaintiff after surgery in Saudi Arabia. The plaintiff has not disclosed the
nature of the surgery which she claims to have undergone in Saudi Arabia on 9-12-1991. No medical records with
reference to operation were sent to these defendants. These defendants deny that a big surgical pack was found in the
abdominal region and removed by the surgeon at the hospital in Saudi Arabia. These defendants also deny that the
second surgery done at Saudi Arabia was only for removal of the foreign body or surgical pack alleged to have been
left in the abdominal region, when the plaintiff has undergone operation under these defendants. These defendants
are not responsible for the surgery performed by the third defendant and they have only provided certain services.
There was no negligence or lack of proper care on the part of these defendants when the plaintiff underwent the
surgery in their hospital. There were some exchange of correspondence and phone con-versation between the
plaintiff and the Chairman of the second defendant. It is not true to say that the Chairman was not even sympathetic
to the sufferings of the plaintiff. These defendants do not admit that the plaintiff suffered traumatic pain after the
operation done in the hospital of these defendants. These defendants also do not admit that the plaintiff suffered pain
only because of the negligence in performing the surgery done in their hospital. These defendants also do not admit
that the plaintiff has to incur financial loss as alleged in the plaint. The plaintiff is not entitled for damages claimed
and these defendants are not liable for any damages suffered by the plaintiff. The damages claimed also are
excessive. The suit is liable to be dismissed as against these defendants 1 and 2.

3. The third defendant filed a written statement raising the following contentions:--

The plaintiff herself has admitted that prior to her surgery in the hospital, the third defendant has advised her to
undergo various tests and after proper evaluation, this defendant has advised removal of uterus of the plaintiff. The
condition of the plaintiff when she came to this defendant was serious and she has been suffering from
gynaecological problem from 1986. The surgery was imperative and therefore this defendant advised the plaintiff
accordingly. A detailed discussion was held with the plaintiff before performing the surgery. The surgery was
performed on 21-6-1991 with the consent of the plaintiff in the hospital of the first defendant. This defendant did
abdominal hysterectomy and removed the uterus. The surgery was successful and the plaintiff was discharged on 3-7-
1991. But, the plaintiff has been advised by this defendant to keep in contact with her for lower abdominal
discomfort complained of by the plaintiff and she has been asked to come for review after six weeks. But the
plaintiff did not turn up thereafter. Whenever the plaintiff complained. this defendant immediately examined and
checked her. The lump or heaviness felt by the plaintiff in the abdominal region was due to induration following
surgery. The plaintiff was ambulatory on the third day of surgery and started taking normal diet. This defendant
examined the hardness in the abdomen of the plaintiff and did everything to eliminate any mistake that could have
occurred at the time of surgery and verified whether the pad count and gauze count which was reported was correct.
There was no possibility of any foreign body left in the abdomen at the lime of operation as alleged by the plaintiff.

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When the plaintiff complained of pain due to a lump in the abdominal region, this defendant has advised Tranvaginal
Ultra sound test and Abdominal ultra sound test and they were also conducted. The tests did not reveal the presence
of any foreign body. The ultrasound examination only revealed a small amount of fluid collection 2 to 3 CC near the
rectus muscle under the skin. This defendant after such examination and investigation honestly concluded that the
pain complained of by the plaintiff was only the normal pain after surgery which would decrease and vanish over a
period of time normally given in such cases. It was also explained to the plaintiff and she was advised to come for
further treatment in case the pain did subside. Even after discharge of the plaintiff, she has been examined by this
defendant who has taken all interest. In spite of the care and caution taken by this defendant, she was not able to
detect the real cause for the pain and this was more so because the plaintiff could not stay at Madras. After the
plaintiff left Madras she did not complain of any pain and in fact the plaintiff told this defendant whenever she
contacted her that she was alright except for a slight heaviness in the lower abdomen. The plaintiff actually stated
that her pain, has considerably reduced. This defendant, advised her to have follow up treatment without any delay.
The plaintiff cannot attributed any negligence towards this defendant. This defendant was not the only person who
performed the operation on the plaintiff, but the surgery was performed with a team of people each having a distinct
role to play and, any mishap could be attributed jointly and sever ally to all of them and this defendant cannot be
singled out for bearing the responsibility. The staff who assisted this defendant during surgery are all employees of
the first defendant. The nurses who assisted this defendant at the time of surgery are appointed by the first defendant.
The operation theatre is managed by the first defendant. There was no negligence on the part of this defendant. This
defendant has been assisted by an experienced team of staff. This defendant has repeatedly asked the theatre staff
whether the pad counts were in order and whether all the swabs have been removed from the body and the staff
assured her that every thing was normal. This defendant has exercised due standard of care which was necessary
after the operation by making enquiries with the staff. The plaintiff ought to have come to this defendant if really she
has felt a great deal of discomfort after the operation and in case the lump has not receded. In fact the plaintiff has
been directed to come forward for review after six weeks, but she has gone abroad and did not come for review, The
expenses allegedly incurred by her are not admitted. This defendant has done the job with perfection and there was
no negligence on the part of this defendant. The damages claimed are excessive and the plaintiff is trying to make
out a fortune from out of a tragedy. The plaintiff is not entitled to the claim made and this defendant is not liable.
The suit is liable to be dismissed as against this defendant.

4. On the above pleadings, the following issues were framed for trial:--

(1) Whether the defendants were negligent in the treatment accorded to the plaintiff?

(2) Whether the plaintiff is entitled to the damages in a sum of Rs. 25,00,000/- as claimed by the plaintiff ?

(3) Whether the plaintiff is entitled for interest at the rate of 21% per annum from the date of filing the suit till the
date of realisation ?

(4) To what relief is the plaintiff entitled ?

5. Parties joined in issues and adduced evidence in support of their rival claims. Plaintiff examined herself as PW 1,
her husband as PW2, besides the Doctor who treated her subsequently at Saudi Arabia as PW 3. Exs. A 1 to A29
documents were marked on the side of the plaintiff. Third defendant examined herself as DW 1 and Exs. B1 to B3
were marked on the side of the defendants.

6. Issue No. 1 :--

The plaintiff has filed the suit claiming damages of Rs. 25 lakhs because of the pain, agony, sufferings caused to her

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in the defendants performing total abdominal hysterectomy operalion on her on 21-6-1991 in Apollo Hospital run by
the first defendant and the operation was actually performed by the third defendant, a specialist in gynaecology,
alleging that the operation has been done in. a highly negligent manner without bestowing proper care and caution
which is expected from a qualified Doctor as a result of which a foreign object was left in the abdomen and the
wound was closed after the operation with the object embedded in the abdomen. The plaintiff is a permanent resident
of United States of America and was residing in Saudi Arabia in the year 1991 where her husband was gainfully
employed as an Engineer. She was aged 45 at that time and she was having some gynaecological problems and she
got herself examined by the Doctors at Saudi Arabia and they diagnosed that she was having Cystic Overies and
therefore she was advised to undergo abdominal hysterectomy when means removal of uterus. The plaintiff hails
from Assam in India and she has got relatives and friends in India and when she was advised to undergo a major
surgery to relieve her problems, she decided to have the surgery in India where she could naturally count on help
from friends and relations to lookafter her during the period of recuperation. For the object of having surgery in
India, she has come to Guwahati in the month of June, 1991 and when she made inquiries with regard to medical
facilities available in India, it was suggested to her that best medical care and attention she could have a t Appollo
Hospitals in Madras is a result she came to Madras by the middle of June, 1991. It is also not in dispute that she
brought a letter of introduction from one Dr. Zaman and got herself introduced to Dr. Prathap C. Reddy, the
Chairman of Apollo Hospitals, the first defendant. Even before she met Dr. Prathap C. Reddy, she was referred to his
Assistant one Dr. Uma and it was Dr. Uma who referred the plaintiff to the third defendant Dr. Swarnakumari, a
Gynaecologist and a surgeon having long experience in examination (sic).

7. Accordingly the plaintiff met the third defendant and the plaintiff was referred to Master Health Check-up to be
conducted in the first defendant hospital itself and she underwent all tests. Ex. A-1 is the Medical Summary prepared
by the first defendant hospital showing the results of the Master Health check-up and it would show that the plaintiff
was complaining of pain in right abdomen on and off for a period of about one year in the past and sometime the
pain was gripping type. A lump in the left breast which however was not painful was also found. Otherwise, the
plaintiff was having normal health and she was not a diabetic and was not suffering from hypertension. After
evaluation of Master Health Check-up Report Ex. A1, the third defendant advised the plaintiff to undergo an
operation for total abdominal hysterectomy. This was suggested by the third defendant as a permanent cure and relief
for the problems faced by the plaintiff. Since the plaintiff has been previously also advised by the Doctors that this
would be the effective treatment, she has consented for the operation and she was admitted in the first defendant
Apollo Hospital on 19-6-1991. The records of the hospital produced by the plaintiff would all show that she was
admitted as such and this is also not disputed by the defendants.

8. It was on 21-6-1991 in the afternoon. the plaintiff was taken to operation theatre in the hospital of this first
defendant and it was the third defendant who performed surgical operation on the plaintiff. The plaintiff was put
under general anaesthesia and therefore after she entered the operation theatre she was not conscious nor she was
aware as to how and in what manner the actual operation or surgery was performed by the third defendant assisted by
her own assistants and staff of the first defendant hospital. The operation took about 1 1/2 hours and by about 4.00
p.m. she was removed to post operative ward where she remained for a period of about two weeks till she was
discharged on 3-7-1991. According to the third defendant the operation was successfully done and uterus was fully
removed. Therefore, apart from the normal discomfort or suffering which one would have to undergo soon after such
a major surgery, the third defendant has promised that she would be completely relieved of her gynaecological
problems because she has completely removed the uterus.

9. But, Immediately after the operation was over and while she was recuperating in the post operative ward of the
first defendant, the plaintiff felt persistent pain in the abdominal area and she also felt that there was a lump or
heaviness in the stomach which she has not experienced prior to operation. The plaintiff is an educated lady and she

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could easily differentiate the pain which she was earlier accustomed to endure the constant pain after the operation.
Within two days when the third defendant came for examining her in the ward, the plaintiff complained of persistent
pain and lot of heaviness in her abdominal region and she was assured by the third defendant once again who felt the
same, but however told her that this must be due to collection of fluids and the fluids would be absorbed in course of
time naturally and the plaintiff would have complete relief, it is also stated by the plaintiff which is not denied by the
third defendant that the latter also told her that if the pain still persisted, the fluids can be removed by way of
aspiration. The plaintiff was advised to remain in the hospital for few more days under the care and control of the
third defendant. The plaintiff was still complaining about persisting pain and therefore the third defendant referred
her for ultra sound examination. Ex. A-4 is the Discharge Summary given to the plaintiff at the time of her discharge
and this also would, corroborate and confirm the complaint of the plaintiff during her post operative period.

10. Ex. A-4 is the Discharge Summary which gives the detailed description of the condition is in proceedings prior to
the operation and after the operation. A reading of Ex. A-4 would show that a detailed investigation has been done at
the hospital and master health check-up has been done and operation notes also would disclose that the plaintiff
under anaesthesia underwent an operation for the removal of uterus. It states that "total abdominal hysterectomy with
bilateral salpingo opherectomy has been done in the usual way. Vault closed and peritonised, Abdomen was closed
in layers skin sutured by vicryl." it is also mentioned therein that the fifth post operative day indurated a mass
measuring 3 x 4 cm was felt between umblicus and suture line. Ultra sound test was done on 24-6-1991 which
reported fluid collection between the rectus and muscle layer, Haematoma. According to the Report, there was
reduction of mass after the patient was observed for five days and the plaintiffs condition at the time of discharge is
reported to be fair and the wound has healed in a healthy manner. The report concludes with an advice which
includes a Review with the third defendant after six weeks.

11. In the written statement filed by the third defendant and also during her evidence, the third defendant has
unequivocally staled that she came to the conclusion that the pain and heaviness complained of by the plaintiff after
the operation was only due to fluid collection in the abdominal region and she was of the opinion that it would
subside in course of time and the fluids would get absorbed in the system in course of time. The third defendant has
done only ultra vires sound examination, both vaginal and abdominal, but that has not shown any abnormality in the
body of the plaintiff and the third defendant seems to have not taken seriously the complaint of pain and heaviness
felt by the plaintiff after the operation. The third defendant herself admits that it was she who advised the plaintiff to
remained for few more days and she remained as an in-patient till 3-7-1991 and not discharged on 3-7-1991. In fact
even after the discharge the plaintiff was staying in the hotel attached to the first defendant hospital and she has also
seen the Doctor thereafter and she only left Madras by about 13-7-1991 after settling the bill due to the hospital. But.
till she left, she was complaining about pain and suffering and she has been repeatedly assured by the third defendant
that there was nothing wrong in the operation or nothing to be worried about and the pain and suffering was only due
to some fluid collection and the plaintiff would get relief in course of time and therefore she was advised to leave the
hospital and Madras to her place in Assam.

12. That the pain and suffering felt by the plaintiff after the operation was not due to any collection of fluids and it
was not the previous pain which she was having before the operation and this has become known due to the
subsequent medical examination and the surgery she underwent in Saudi Arabia later. But. the fact remains that the
third defendant was not able to find out any cause or reason for the pain and heaviness suffered by the plaintiff and
she has been constantly complaining to the third defendant right from the day after the operation. All that has been
done by the third defendant is that she asked her to undergo an ultra sound examination and this has also not
confirmed her opinion that there was any abnormality in the abdominal region where incision has been made and
uterus has been removed.

13. It is now stated by the third defendant that even at that time she made sure that no foreign body has been left

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behind in the abdominal region before closing the wound at the time of operation and this she claims to have done by
checking the tag swab counts and counts of instruments used at the time of operation. The third defendant claims to
have satisfied herself that the complaint of heaviness and pain made by the plaintiff was not due to any foreign object
being left behind, at the site of operation and this she has made sure by counter checking the pad count and gauze
counts. It is no where stated by the third defendant that she even suspected that some foreign object could have been
left behind in the site of operation and this could have been the cause for the post operative complaint made by the
plaintiff. Therefore, I think it is not probable that the third defendant has made such a counter check and that too
after the operation and in view of the complaint made by the plaintiff. Obviously because of the subsequent
development which revealed a foreign substance in the abdominal, she is making this claim and anyhow there is
nothing on record to show that she made this counter check after hearing the complaint of the plaintiff during the
post operative period. No records have been produced and even the ultra sound report did not reveal that it was done
with a view to find out as to whether any foreign object has been left at the site of operation during the period of
operation. Therefore, it is an afterthought invented by the third defendant for the purpose of explaining her not
bestowing enough care and caution to the complaint of the plaintiff and the plaintiff has been treated in a casual
manner.

14. The plaintiff after remaining in Guwahati for some more time left for Saudi Arabia to join her husband who was
employed there. Throughout her stay in India and even after going to Saudi Arabia, she was having constant pain and
the heaviness in the stomach was also there and therefore the plaintiff was suffering from much discomfort even few
months after her operation. Perhaps, as advised by the third defendant, the plaintiff was hoping against hope that the
pain and suffering would subside and might be it was only due to collection of fluids and therefore suffered in
silence for few more months in Saudi Arabia where she was staying subsequently. P.W. 1, the plaintiff after waiting
for few months naturally sought the advise of a Doctor in Saudi Arabia and she was referred to Royal Commission
Medical Centre. Yanbu-al-Sinaiyah in Saudi Arabia and she was examined by the gynaecologists at the said hospital.
After examination, the Doctors in the said hospital also felt that there was a lump in the abdominal region of the
plaintiff which appear to be unusual and naturally the plaintiff would have told her about the operation she
underwent in the month of June in Madras and having persistent pain thereafter. The Gynaecologists at the Royal
Commission Medical Centre immediately referred the plaintiff to X-ray examination.

15. Ex. A-18 is the Report given by P.W. 3 Dr. Swapan K. Dutta, who is a consultant and general surgeon working
in Royal Commission Medical Centre. The Medical Report reads as follows :--

"Mrs. Arpana Dutta was admitted jointly under myself and Dr. Finn for removal of foreign body from the abdomen.

In the past, she had hysterectomy back in India, which was performed through a low Pfannenstil incision. Following
the operation, while she was recovering fairly satisfactorily, there was problem with wound sepsis. She was
reassured about this and finally discharged when the wound healing was complete.

However, while she has recovered from the operation, she somehow did not feel quite right, as she kept complaining
of pain in that area, and at the time, it was felt as if she had a mass in relation to the scar.

She was seeing our gynaecological colleague here, who discovered on x-ray that, she had a retained abdominal pack
in the wound, and eventually, she was referred to vis for its removal."

16. The Gynaecologists at the Royal Commission Medical Centre in Saudi Arabia took X-ray for the plaintiff and
Ex. A-5 series are skiagrams which would show that a foreign object was found embedded in the abdominal region
where she has undergone a surgery. So, when the defendants 1 and 3 have failed to find out what was the cause for
the complaint of subsisting pain by the plaintiff, the Gynaecologists at Saudi Arabia Hospital were immediately able

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to find out by simply taking X-ray of the region which revealed that a foreign object has been left behind at the site
of the operation and the wound has been closed without removal of the said object. The Doctors were able to find out
also from Ex. A-5 X-ray obviously the foreign object left inside must be a surgical pad. Therefore, once they have
found that the cause for the plaintiffs problem or the detection of a foreign object at the site of the operation, she was
immediately advised to undergo second surgery in the abdominal region for the purpose of removing the foreign
object. It was this second operation or surgery which was done by P.W. 3 Dr. Swapan K. Dutta who was a
Consultant surgeon attached to Royal Commission Medical Centre, Yanbu-al-Sinaiyah in Saudi Arabia. Again we
have to refer to Report of P.W. 3 who has done the second surgery and reference can be usefully made to Ex. A-18
Medical Report prepared by P.W. 3, a Doctor in Saudi Arabia, it is stated in the last portion of the report as follows
:--

"She was, therefore, admitted for this purpose on 8 December 1991, and the operation was performed on the
following day.

On exploration through the old scar, a cavity was found containing greenish yellowish pus without any special sme!i.
While a sample was taken for culture in the same cavity, a big abdominal pack was found in situ. The pack was very
strongly and firmly adhered to the loops of the small intestine, and this was very gently freed from the intestine and
was removed. The cavity was then closed from the abdominal cavity proper, and a suction drain was put into the
cavity through a separate incision. Abdominal wall was then closed in layers with Dermalon in the skin. Her
postoperative period has been excellent, and she was allowed home on 16 December, 1991, having ensured that the
wound has healed well and there was no evidence of any infection in the wound."

This Report also has been spoken to by P.W. 3 Dr. Swapan K. Dutta, during her evidence. She has spoken to about
the removal of abdominal pack from inside the abdomen of the plaintiff which is also shown in detail in Ex. A-2
photograph.

17. P.W. 2 is the husband of P.W. 1 and he has sworn to the fact that after removal of foreign object, namely the
abdominal pack, this was shown to him by P.W. 3 and he was also allowed to take a photo of the same and Ex. A-2
is the photograph and Ex. A-3 is the negative. No doubt the object was discovered by the hospital authorities in
Saudi Arabia. The abdominal pack that was found inside the abdominal region of the plaintiff is correctly shown in
Ex. A-2 photograph and this has been spoken to by P.W. 3 also. Abdominal pad in used for mopping up blood at the
time of operation and number of pads would have been used and it is for the Doctor to remove all the pads before
ever the wound is closed and ensure that no pack was left inside. She would have to do a count check with the staff
attending on the patient and assisting her in the operation. The third defendant as D.W. 1 also confirmed that it is the
least which is expected from a surgeon who does the operation. The pad is made up of cloth which measures 12 x 12
cms, A string is attached to the same measuring 18 cms. A string is attached because when the pad is used for
mopping up the blood at the site of operation, the string will be kept, outside the body so that it can be removed after
the operation was over and before closing the wound, But, unfortunately this foreign object has been allowed to
remain in (he site of the operation and naturally the pack would have become bloodstained and that is the reason why
a long string is attached which is to be left hanging outside the body so that it can be easily identified and removed.
But, in the case of the plaintiff, the third defendant has not bestowed any care and attention and this abdominal pack
was allowed to be inside at the site of the operation and wound has been closed without removal of the same which
has been the cause for all the pain and suffering which the plaintiff unfortunately underwent after the operation. I am
not in a position to understand as to why the elementary precaution of taking X-ray to find out whether any foreign
object has been left behind, was not even taken by (he third defendant. It is elicited from P.W. 3 a consultant surgeon
with good qualification that if any foreign object like abdominal pack has been left inside and if the patient was
referred to ultra sound examination, it may not reveal the presence of foreign object because it would be submerged
in the fluids and therefore will not be visible under ultra sound examination. On the other hand P.W. 3 has stated that

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X-ray would reveal the presence of any foreign body inside the abdominal region. But unfortunately this has not
been done at the hospital of the first defendant and this was never thought of by the third defendant who performed
surgery at the first defendant hospital.

18. P.W. 1 has referred to and this has been confirmed by the evidence of the third defendant that there was a
discussion among the Doctors who were shown the ultra sound scan of P.W. 1. It is the case of the plaintiff that some
Doctors have expressed their opinion on seeing the test results that there was something abnormal about the post
operative condition of P.W. 1. But, the third defendant did not care on that opinion and insisted even thereafter that
heaviness and pain felt by P.W. 1 after the operation was only due to collection of fluids. The third defendant herself
has previously stated that if the pain still persisted it was due to collection of fluid and she would extract the fluid by
aspiration. But, this was also not done and the third defendant must have been confirmed that there was least
presence of fluids as disclosed from ultra sound examination. Therefore, the third defendant must have probed into
the matter with regard to persistent pain complained by the plaintiff and the plaintiff must have known better because
the plaintiff could differentiated the pain which she was not frequently having and which she was feeling
continuously after the operation. The third defendant has been negligent even in taking sufficient care and caution in
finding out the cause for the pain and suffering complained by the plaintiff during the post operative period. It now
suits the third defendant to state that after P.W. 1 has complained about persistent pain, she made sure by checking
the counts of pads and instruments used in the operation by referring the matter to the staff, who have assisted her
during the time of operation. If this was actually done as claimed by the third defendant, she must have carried a
suspicion that some foreign object sought have been left in the abdomen due to which the patient must have been
suffering from persistent pain. The third defendant has never admitted before the Doctors to whom she discussed that
the pain could be due some foreign object left during the period of operation and therefore this claim is made now
before the Court as an after thought.

19. if really such a check and count of operation pads and Instruments have been subsequently conducted by D.W. 1
with reference to staff who have assisted her in the operation, this could have been done only with reference to
operation notes or some records which she ought to have maintained at the time of operation. But, strangely the third
defendant has not produced any such operation notes or notes maintained by the staff with regard to counts of pads
and instruments used at the time of operation. This attitude on the part of the third defendant would also show that
even after operation and in spite of the complaint made by P.W. 1 she has not bestowed any care and caution in
finding out the real cause and if only she had made sincere efforts, she could have easily found the blunder or
mistake she has committed at the time of operation and would have made the correctional operation.

20. The fact that there was a foreign object namely abdominal pack, left behind in the stomach of the abdomen and
the wound was closed without removing the same is proved by the evidence of P.W. 1 which is also corroborated by
P.W. 3 Dr. Swapan K. Dutta who has done the subsequent second surgery in the hospital at Saudi Arabia. Dr.
Swapan K. Dutta has been examined as a witness and she has spoken to Ex. A-2 X-ray and Ex. A-5 skiagram which
all disclose that a foreign object has been left behind in the abdomen and which must be the cause for the complaint
of P.W. 1. Therefore, as a surgeon P.W. 3 did the second operation during the course of which to her shock and
surprise, she found an abdominal pack which has been left inside the abdomen during the time of previous operation
and removed the same deftly which in the meantime got interwoven with small Intestine and loops. Fortunately for
P.W. 1, the foreign object has not caused any further complication except pain and suffering and probably she was
not able do her normal work during the period intervening the first and second operation. Therefore, the evidence of
P.W. 3 and the connected records Exs. A-4 and other materials have proved beyond doubt that during the first
operation underwent by the plaintiff in the Apollo Hospitals, an abdominal pack has been left and this has caused
suffering, pain and discomfort to the plaintiff. Naturally the plaintiff has suffered lot of pain and suffering Instead of
comfort, after removal of uterus for which she has chosen the first defendant hospital after she was informed by her

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friends and relatives that it is the best hospital available in India. The plaintiff naturally got disappointed and this she
has shared with her husband P.W. 2 and when P.W. 2 was informed about the presence of foreign object after X-ray,
he has immediately written to the Chairman of the first defendant hospital for which he did not receive any
satisfactory reply.

21. The correspondence between P.W. 2, the husband of the plaintiff and the Chairman of the first defendant hospital
had been produced and marked as Exs. A-11 to A-17 and these documents would also show that while the hospital
did not deny the mistake which was discovered by P.Ws. 1 and 2 with the help of P.W. 3 few months after the
operation, his replies were only evasive and he has not conducted any meaningful investigation. Perhaps the
Chairman of the first defendant hospital was not willing to admit that such a blunder or mistake could have been
committed during the operation done in their hospital and there seems to be no attempt on the hospital authorities to
Indemnify for the sufferings she has undergone. The third defendant also has written a letter Ex. A-15 wherein also
she does not deny that she could have left a foreign object, namely abdominal pack inside the abdomen during the
time of operation and she would try to explain that she has conducted thousands of operation wherein such a thing
has not happened. Nobody denies the qualification or the experience of the third defendant as a Gynaecologist. But
unfortunately P.W. 1 has been the victim when she had the operation in the hands of the third defendant and this was
only due to negligence and lack of care and caution on the part of the third defendant and the third defendant should
have honestly owned the mistake and the first defendant hospital also should have taken efforts or attempts to
indemnify the plaintiff. But, none of these courses have been suggested to the first defendant and the third defendant
has not taken any steps.

22. It is sought to be suggested to P.W. 3 the Doctor who has done the second subsequent operation that this foreign
object could have been as well left in the abdomen of the plaintiff at the time when the plaintiff first underwent a
Caesarean operation, when she gave birth to her child. It is seen from the records, namely discharge summary of the
plaintiff that in 1979 she underwent a Caesarean operation under which the child was taken out of her womb and
there was a scar left in her abdomen evidencing the operation. But, it is Incredible to think that in 1979 the
abdominal pack would have been left and this started giving pain after the operation at first defendant's hospital and
the foreign object was ultimately discovered during the correctional operation done in Saudi Arabia. This is a far-
fetched suggestion made by the third defendant. If really a foreign object has been left in the abdomen in the year
1979, this could have been easily detected by the third defendant herself when she again opened the abdomen and
did the operation for removal of uterus. It is not probable that a foreign object like abdominal pad was left in the
abdomen from 1979. This could have been noticed by the third defendant herself when she did the operation in the
first defendant's hospital on 21-6-1991.

23. The foreign object found inside the abdomen, namely the abdominal pack, has been removed physically which
has been spoken to by P.W. 3 who did the second correctional operation. She has also spoken to the fact that after the
foreign object was taken out, it was shown to the husband of P.W. 1, namely P.W. 2 and he was allowed to take a
photograph of the same, which is shown in Ex. A-2. The oral evidence of P.W. 3 has been substantiated by her
report, Ex. A-5 skiograms and other records. So, the fact that abdominal pack was left behind in the abdominal
region of the plaintiff due to her operation in Apollo Hospital has been proved by the evidence of P.Ws. 1 to 3 and
this has been also corroborated by records. P.W. 3 as a Doctor who has done the second operation has absolutely no
reason to swear falsely. In fact she being a qualified Surgeon admitted that leaving of a foreign object like abdominal
pack during the course of operation and closing the wound is an act of negligence. The evidence adduced by the
plaintiff has conclusively established that an abdominal pack was left behind in the abdominal region at the time of
operation done by the third defendant in the hospital of the first defendant and this was only an act of negligence and
due to want of sufficient care and caution in conducting the operation which is expected of a surgeon like the third
defendant. So, there can be no escape for the first and third defendants and they must be made answerable to the

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sufferings and pain undergone by the plaintiff due to the carelessness and negligence of the third defendant, while
doing the operation in the hospital of the first defendant. The Doctrine "Res Ipsa Loquitur" squarely applies to the
facts of the present case. Therefore, the defendants 1 to 3 must be held liable for the damages suffered by the
plaintiff which was only due to the negligence on the part of the third defendant and the operation was done at the
hospital of the first defendant.

24. The plaintiff entered the hospital of the first defendant for the purpose of having the operation and it was the first
defendant who offered services for which the plaintiff has paid necessary fees and charges. The plaintiff was referred
to Appollo Hospitals run by the first defendant and it was the first defendant who arranged for the operation. It was
the first defendant who admitted the plaintiff in its hospital and it was the first defendant who has collected fees for
the medical services rendered to the plaintiff and it was the first defendant who has offered to do the operation for
the removal of uterus. Now it is sought to be made out by the first defendant that all that he has assured is care and
treatment in the hands of skilled and qualified Doctors and if those Doctors were guilty of any negligence or
carelessness, the concerned Doctors must be alone held responsible and not the first defendant hospital. It is
ingeneously suggested that there is no master and servant relationship between the defendants 1 and 3 and the fee for
doing the operation charged by the third defendant is separately collected from the patients and there is no master
and servant relationship between the defendants 1 and 3.

25. We are not very much concerned with exact type of relationship governing the employment of the third
defendant in the hospital run by the first defendant. So far as the plaintiff is concerned she is no where concerned
with the terms of the contract alleged to have been entered between the defendants 1 and 3. The plaintiff has
bargained for her operation done in the first defendant hospital and for the successful operation in the first defendant
hospital. The third defendant's services has been utilised by the plaintiff only at the instance of the first defendant.
She came and got herself admitted in the hospital of the first defendant and she was attracted to this hospital by the
wide reputation the hospital is enjoying which she came to know from the far away place where she was residing.
Therefore, her contact was with the hospital run by the first defendant and it was only at the instance of the first
defendant, the third defendant did the surgery, to which the plaintiff has consented. No doubt when a patient has
consented for undergoing an operation, it does not envisage 100% success or full remedy. All that is expected of
from a skilled surgeon is possible diagnosis and correctional remedial measures which he is supposed to do with
sufficient care and caution and in case of carelessness and negligence, the patient will be entitled to claim damages in
a case of this nature. This is a case where the first defendant has referred the plaintiff for the treatment at the hands of
the third defendant, the latter correctly identified the illness of the plaintiff and properly suggested the remedial
operation, namely removal of uterus. So, the diagnosis was correct and the operation conducted by the third
defendant was necessary under the circumstances and now the hospital and the Doctor are being sought, to be held
liable only because of the negligence with which operation was done which is proved by the evidence of P.Ws. 1 to
3. Since the Doctor was employed by the first defendant, notwithstanding the terms of employment between the
defendants 1 and 3, so far as the plaintiff is concerned she can hold the first defendant liable for all the damages
suffered. The first defendant is running the Apollo Hospitals and it was he who is offering medical services. The
terms under which the first defendant employs the Doctors and Surgeons is between them but because of this it
cannot be stated that the first defendant cannot be held liable so far as third party patients are concerned. The patients
like P.W. 1 go and get themselves admitted in the first defendant hospital relying upon the hospital to provide them
the medical service for which they pay necessary fee. It is expected from the first defendant who run the hospital, to
provide such a medical service and in case where there is deficiency of service or in cases like this, where the
operation has been done negligently without bestowing normal care and caution, the first defendant also must be held
liable and the first defendant cannot be allowed to escape from the liability by stating that there is no master and
servant relationship between the first defendant hospital and the third defendant surgeon, who did the operation.

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26. Moreover, this Court itself has held that the first defendant hospital is liable in case of established negligence and
it is no more a defence to say that the third defendant is not a servant employed by the first defendant, etc. The same
plea has been taken up by the first defendant in another case of negligence and it is reported in (1996) 1 Mad LW 58
(SN); V. Chandrasekhar v. Appollo Hospitals Enterprises Limited, represented by its Chariman, Dr. Prathap C.
Reddy.

Learned counsel appearing for the first defendant relied upon a ruling made in Hillyer v. St. Bartholomew's Hospital
Governors (1909 (2) KB 820. The same ruling was also relied upon in the case referred to above and this was also
negatived by Pratap Singh, J. who has observed as follows :--

"Now large number of private hospitals, nursing homes and clinics have emerged. In view of the good reputation
they have built, patients go there for treatment in large numbers. These hospitals provide the medical treatment to
those patients through doctors employed by them or by doctors who work there on some arrangement. These
hospitals raise the bills for the medical treatment provided to those patients. In the circumstances, if the patient
suffers injury due to negligence of the doctors provided in those negligence, the hospitals would be equally liable for
damages, on the principles of vicarious liability or on the principles analogous to vicarious liability. When these
hospitals provide these doctors to the patients and when they make the bill and collect the fees for the medical
treatment given in those hospitals, these hospitals cannot shove of their responsibility and liability to pay
compensation for the damages suffered by the patients due to the negligence to the doctors provided by these very
hospitals."

So, the very same contention raised by the very same first defendant Appollo Hospitals has been negatived in the
case cited supra and therefore, it is no use in the first defendant now contending before me that in the absence of
master and servant relationship between himself and the third defendant, the first defendant cannot be held liable for
the negligence proved against the third defendant.

27. The first defendant as a high professional hospital is proclaiming to the entire world that they are offering best
medical treatment or service and in fact they claim to enjoy such a reputation and therefore they cannot escape from
their liability. leaving the Doctor who did the operation to pay for the damages suffered by the patients to whom the
services were rendered by the first defendant. Therefore, the first defendant is also equally liable and we are not very
much concerned with the peculiar terms of the contract of employment between the defendants 1 and 3. The plaintiff
has only approached the first defendant hospital for availing the services offered by the hospital and it was the
hospital which has deputed or engaged the third defendant to perform the operation required by the plaintiff. The
plaintiff has paid the bills charged by the hospital itself which no doubt has chosen to get a particular fee for which
they separately issued a receipt towards fee for operational charges charged by the third defendant. Therefore, I hold
that the first defendant also must be held liable for the suffering and damages undergone by the plaintiff due to the
proved negligence in conduct of operation which the third defendant did at the instance of the first defendant.

28. ISSUE Nos. 2 and 3:--

I have already held while answering the main issue that the third defendant Doctor who performed the surgery on the
plaintiff is guilty of gross negligence as a result of which the plaintiff has been put to much suffering, hardship and
loss. Since the defendants 1 and 3 have been found liable for the loss caused to the plaintiff, we have to quantify the
damages to which the plaintiff is lawfully entitled. The plaintiff has claimed Rs. 15 lakhs as damages for the pain,
suffering and mental agony which she underwent as a result of the negligent manner in which operation was
conducted upon her and she has also prayed for a further sum of Rs. 10 lakhs by way of special damages towards the
expenses incurred by her for undergoing operation at the hospital of the first defendant, for further treatment and

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correctional operation which she underwent at Saudi Arabia and also expenses incurred by her by employing a
servant-maid, by engaging a taxi for conveyance and the fee paid to the Doctors who did the correctional surgery at
the hospital in Saudi Arabia.

29. The plaintiff underwent the first operation at the second defendant hospital run by the first defendant and the
operation was done by the third defendant Doctor and she was discharged from the hospital on 3-7-1991. Even
immediately after coming out of the effect of Anaesthesia, she was suffering pain and agony and feeling much
discomfort in her abdominal region which she immediately conveyed to the third defendant. As already seen, the
third defendant has not taken proper remedial measures and she has not even taken care to investigate properly with
regard to cause or source of the complaint made by the plaintiff. She has to travel to Guwhati. her own state from
where she had to fly to Saudi Arabia to join her husband. Thereafter also the pain and discomfort continued and
perhaps hoping for the pain to subside as wrongly advised by the third defendant she has been waiting for few
months during which period also she continued to suffer the same pain and agony. P.W. 1 is not exaggerating when
she stated that subsequent to the operation till the foreign object was removed by the second correctional operation
done at Saudi Arabia, she continuously underwent pain and suffering and her mental peace also was shattered and
she had traumatic suffering and mental depression throughout the period which is understandable. Only after the
correctional operation done at Saudi Arabia in 1991, she was relieved of the pain because the foreign object was
removed from her abdomen. She has to undergo unnecessarily a second correctional operation at Saudi Arabia.

30. It is true that the plaintiff would not have been in a position to carry on her normal activities during this period
and she would claim that a servant maid was employed to take up the home cares since she claims that she was not
inclined and not capable of doing any work. For all these sufferings, pain and mental agony undergone by the
plaintiff due to negligence of the third defendant, the plaintiff is entitled to damages and the damages is quantified at
Rupees five lakhs.

31. By way of special damages, she has claimed expenses incurred by her for undergoing operation at first defendant
hospital, by way of ticket for air passage, for her stay in the hotel, the fee paid to the first defendant hospital and also
the fee charged by the third defendant. So far as air passage is concerned she has decided to come to India for being
operated upon for her illness. Even if she had undergone the operation without the mishap, she would have to pay for
these ex penses and therefore she may not be right in claiming the expenses incurred by her for her travel to India
from Saudi Arabia. She has also claimed air fare for her husband who seems to have come and be present on the date
of the operation. The husband has come to see the wife and he was with her side because she was undergoing a
major operation. Therefore, the air fare paid for herself and her husband cannot be stated to have been incurred or
cannot be stated to have been direct outcome of the negligence of the third defendant. Even otherwise PW 1 had to
come to India where she has decided to have the operation and the husband came only to be with her at the time of
operation. So these expenses, the plaintiff cannot claim way of special damages. While it is not stated in the plaint
that her children came along with her husband and stayed in a hotel at Madras, it was staled during evidence of PWs
1 and 2 that the children also came and stayed with them in the hotel during the period of treatement. PW 1 had two
children and they have been studying in United Slates of America and they came for holidays and naturally because
the parents were in India, they came there and the plaintiff cannot claim air fare for her children whose presence
were not a necesity or must for the third defendanl doing operation. Moreover, it has come out in evidence that Ihe
employer has paid for air passage for both the husband and wife and it is the part of perquisites to which PW 2. the
husband was entitled to. Therefore, the plaintiff cannot claim by way of special damages the money spent for herself,
her husband and children for travelling up to India and in Madras, where the plaintiffs operation took place. The fact
remains that during the operation the uterus was removed successfully.

32. The plaintiff no doubt is entitled to get the money paid to the defendants 1 and 3 towards fee for the operalion.
The plaintiff claims to have spent Rs. 30,000/- charged by the first defendant which includes the fee of Rs. 3,500/-

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paid to the third defendant. It is not seriously disputed that the plaintiff first paid a sum of Rs. 25,000/- as deposit and
Rs. 3,500/- towards the charges paid to the third defendant. PW 1 has to stay in the hospital from 19-6-1991 to 3-7-
1991 and the hospital has charged for her stay and other things and altogether the plaintiff definitely has spent about
Rs. 30,000/- which was paid to the defendants. Even though removal of uterus was done by the third defendant at the
hospital of the first defendant for which they have charged the said amount, because of the negligent way in which
operation was done, the plaintiff had to suffer pain and agony which was a new development and therefore instead of
solving the problem for which she came and availed the services of the first defendant, she has been put to much
suffering, pain and agony and therefore whatever amount paid to the defedants 1 and 3, she is entitled to get them
back. So, the amount of Rs. 30,000/- paid by the plaintiff to the defendants 1 and 3 is liable to be returned to her.

33. The plantiff also claims 9,000 Riyals or equivalent of Rs. 75,000/- which she claims to have paid as salary to a
servant maid specially employed by her during the period of six months which is the intervel between the first
operation and the second correctional operation. It is not the case of PW 1 that prior to the operation she was doing
all the household work by herself or that she has no other servant maid even during the normal period. Moreover,
there is no document to show that a special servant maid was employed because of the inability of PW 1 or that she
was paid Rs. 75,000/- as salary. Therefore, I am not inclined to allow this claim made by the plaintiff.

34. The plaintiff has spent money for having second correctional operation at Saudi Arabia and according to her she
has paid a sum of 1,500 US Dollars. She has also produced Ex. A-9 series bills which would show that the said
amount has been spent by her and the expenses Incurred by her for the second correctional operation. She is entitled
for the entire amount. She has also previously had consultations with PW 3 and naturally she had to visit the hospital
on more than one occasion and she remained as an in patient from 9-12-1991 to 3-1-1992 and therefore the claim of
1,500 US Dollars is not unreasonable. For the amount paid to the hospital at Saudi Arabia and towards incidental
expenses which PW 1 should have necessarily incurred, she is entitled to a sum of Rs. 50,000/- as special damages.

35. The plaintiff also by way of special damages claimed that her husband has suffered loss of earnings for about
five weeks for which she has claimed Rs. 2,75,000/- . It is not stated in the plaint that her husband has suffered loss
of pay because he came to India to be with his wife at the time of operation. It is only stated in the plaint that during
the subsequent period to the first operation and at the time when the plaintiff was operated upon at Sudi Arabia, he
had to avail leave for five weeks and that too on loss of pay. But. In evidence both PWs 1 and 2 would make it
appear as if that PW 2 had to come on leave on loss of pay to be with the side of his wife at the hospital of the first
defendant. PW 2 did not anyhow states in his evidence that he had applied for leave on loss pay or availed such leave
for being with the side of his wife at the time of correctional operation at Saudi Arabia. The plaintiff also has not
produced any documents to show that either at the time of the first operation at the first defendant hospital or at the
second correctional operation done at Saudi Arabia, the presence of her husband was necessary and he had no leave
and he had to avail leave only on loss of pay. Therefore, the plaintiff cannot claim any amount on account of the
alleged loss of pay suffered by PW 2.

36. It is contended on behalf of the defendants that what all medical expenses incurred by the plaintiff for the
correctional operation done at Saudi Arabia, the employer of PW 2 had reimbursed him and therefore it cannot be
stated that it is a loss suffered by the plaintiff. The defendants 1 and 3 are made liable to pay damages for the
negligence exhibited at the time of operation and they are the wrongdoers and they are to be tourtuously liable for the
suffering and damages Incurred by the plaintiff. They cannot try to escape from their liability by pointing out that a
third party has paid for the expenses incurred towards the second correctional operation. The plaintiff is entitled to
get the said amount from the defendants who are held liable ior the negligence. Therefore, even though the expenses
incurred by the plaintiff for correctional operation had been reimbursed by the employer, the defendants are
definitely liable for this amount. So, by way of special damages the plaintiff is entitled to Rs. 80,000/-. Thus, I
quantify the damages to which the plaintiff is entitled due to negligence of the third defendant for which the first

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defendant is vicariously liable and therefore, I hold on issue No. 3 that the defendants are liable to pay Rs. 80,000/-
by way of special damages, besides Rs. 5,00,000/- as damages awarded to the plaintiff for the pain, suffering and
mental agony undergone by her due to regligent way in which surgery was done on her by the third defendant in the
hospital of the first defendant. So, the plaintiff is entitled to the total damages of Rs. 5,80,000/-.

The plaintiff has claimed interest at the rate of 21% and the claim is definitely excessive and the plaintiff will be
entitled to only 12 % interest per annum from the date of the plaint till the date of decree and thereafter at 9% per
annum till realisation. Issue Nos. 2 and 3 are accordingly answered in favour of the plaintiff.

37. ISSUE NO. 4:--

In the result, the plaintiff is found entitled to a sum of Rs. 5,80,000/- (Rupees Five lakhs and eighty thousand only)
with interest at 12% p,a. from the dale of the plaint till the date of the decree and thereafter at 9% p.a. till realisation
and also the proportionate costs.

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