ACHUTRAO HARIBHAU KHODWA AND ORS. versus STATE OF MAHARASHTRA AND ORS.

Citation: [1996] 2 S.C.R. 881 · Decided: 20-02-1996 · Supreme Court of India · Bench: S.P. BHARUCHA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

ACHUTRAO HARIBHAU KHODWA AND ORS. 
v. 
STATE OF MAHARASHTRA AND ORS. 
FEBRUARY 20, 1996 
[S.P. BHARUCHA AND B.N. KIRPAL, JJ.) 
Tort-Vicarious Liability of State-G-ovemment hospitals-Negligence 
of its doctors-Death by negligence established-State would be vicariously 
liable for damages-Running of hospital-Not a sovereign act. 
Negligence pf the docto~Test to detennine-A medical practitioner 
must exercise a reasonable degree of care-Sterilisation operation-Leaving a 
mop in pelitonial cavity of patient-Doctors held negligent. 
The wife of the appellant No. 1 was admitted in the Civil Hospital 
A 
B 
c 
for delivery of a child and also to undergo a sterlisation operation after D 
the delivery. She delivered a male and after the delivery, a sterlisation 
operation was performed by respondent No. 2. Soon thereafter the patient 
developed high fever and also had acute pain which was abnormal. Her 
condition deteriorated further. PW-2, Surgeon re-opened the wound of the 
earlier operation in order to ascertain the true cause of the seriousness of E 
the ailment and found that a mop had left inside the body of the patient 
when the sterlisation operation was performed on her. There was collection 
of pus that was drained out but even thereafter the condition of the patient 
did not improve and ultimately she expired. 
Appellant No. 1 filed a suit for damages claiming Rs. 1,75,000 while F 
alleging that the death of his wife was caused due to the negligence of 
respondent No. 2 who had performed the sterlisation operation as well as 
the irresponsible behaviour of respondent No. 3 the Medical Officer of that 
hospital; that the hospital lacked adequate medical aid and proper care 
and there was gross dereliction of duty on the part of the officers of the G 
Government Civil Hospital which directly resulted in the death of the 
patient and therefore, the appellants were entitled to recover damages 
from the State Government as well as respondent Nos. 2 to 4. 
Respondents 1 to 4 denied that there was any negligence in the 
performance of the sterilisation operation and respondents 2 and 3 denied H 
881 
882 
SUPREME COURT REPORTS 
[1996] ! S.C.R. 
A 
having left any mop in the abdomen of the deceased and, in the alternative 
pleaded that even if such a mop was left inside the body, the same could 
not have, either directly or remotely, caused the death. 
B 
The trial court passed a decree for Rs. 36,000 against respondents 1 
to 3 but the suit against respondent No: 4, the Dean of Medical College 
was dismissed while accepting and relying on the evidence of PW 2 and 
discarding the evidence of the experts examined by the respondents hold-
ing that the original documents and case papers had been filed late, some 
relevant entries had also been tampered with and it was only the typed 
papers, which were copies of the tampered documents, which were supplied 
C to the respondents' expert witnesses for their opinion. 
In appeal, the High Court dismissed the suit and concluded that 
none of the respondents could be held liable for negligence, holding that 
the Government could not be held liable for tortious act committed in a 
hospital maintained by it; that though there were some erasure marks and 
D rubbing off of the entities in the original case papers, it was not possible 
to infer therefrom that the registers had been tampered with and that too 
by respondents 2 to 4; that the opinion of the experts was conflicting and 
it was difficult to hold that anything that was done during the sterlisation 
operation, or thereafter, had. definitely caused the death of the deceased 
E and that though respondent No. 2 had been negligent in leaving a mop 
inside the abdomen of the deceased, the appellants had failed to prove that 
the negligence ofleaving the mop inside the abdomen had caused the death 
of the patient. This appeal had been filed against the judgment of the High 
Court. 
F 
The questions raised for consideration were whether the State can 
G 
be held liable for any negligence of its employees and secondly whether the 
respondents or any one of them acted negligently in the discharge of their 
duties. 
Allowing the appeal, this Court 
HELD : 1.1. Running a hospital is a welfare activity undertaken by 
the government but it is not an exclusive function of a~tivity of the 
government so as to be classified as· one which could be regarded as being 
in exercise of its sovereign power. In pursuit of the welfare ideal the 
H gov

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