TaxTMI 
TaxTMI 
2020 (12) TMI 1384
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....their request for early consideration of the case, taking note of the situation and the circumstances of the parties. For easier comprehension, the parties are referred to as they were arrayed in the trial court. 3. The events that led to this appeal are briefly narrated as below:- 3.1 Plaintiff developed severe pain in the abdomen and on reference to the 2nd defendant, who is a super-specialist in Urology, the plaintiff was diagnosed as having secondary calculi in the right kidney and was advised to undergo keyhole surgery to remove the calculi. Plaintiff was admitted to the hospital on 25.9.2005 and the operation commenced under general anesthesia on 27.9.2005. Within 30 minutes of commencement of the surgery, the operation was halted and the plaintiff was brought out of the theater with oxygen support and catheter inserted. 3.2. Post operation, plaintiff noticed that he became crippled and unable to move. Subsequently, he was referred to Sree Chithira Tirunal Institute of Medical Sciences, where, spinal subdural clots were detected. He suffered permanent damage to his lower limbs. Plaintiff alleged that illness and disability occurred due to the injury sustained on the spin....
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....or consideration by the trial Court included whether any injury was caused to the plaintiff, if so, who was negligent, and also as to the quantum and the person liable to pay the compensation, if any. 7. The Sub Court, Thiruvananthapuram by judgment dated 27.07.2019 decreed the suit holding that the facts, circumstances and the evidence adduced proved that negligence on the part of the 2nd defendant was the cause of paraparesis sustained to the plaintiff, that the 1st defendant was vicariously liable for the negligent act of the 2nd defendant that the defendants were liable to compensate the plaintiff to the extent of Rs. 20,40,000/- with interest at 6% per annum from the date of suit till realization, along with costs, after exonerating the plaintiff from paying the court fee. Rs. 40,323/- was awarded as treatment expenses, Rs. 10,00,000/- towards loss of future earning and Rs. 10,00,000/- towards pain and suffering, and the total was rounded off to Rs. 20,40,000/-. Aggrieved by the judgment and decree, the defendants have preferred this appeal. 8. We have heard the learned counsel for the appellants Sri. C.R. Shyamkumar and the learned counsel for the plaintiff Sri. Anoop Bhask....
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....tain and wavering defense case showed that the defendants were trying to build up a case, especially after PW4 was examined. According to the learned counsel for the plaintiff, in the written statement, the defendants did not have a case of any cardiac arrest having occurred during the operation. He further submitted that the defendants during cross-examination had admitted the case of the plaintiff. The learned counsel for the plaintiff further submitted that Ext. B1, though marked through the cross-examination of PW1, its admissibility was rightly rejected by the Sub Court. It was pointed out that the production of a photocopy of the medical records of the plaintiff, that too, just before the evidence commenced, made the said document, not only inadmissible in evidence but also unreliable. It was contended that a document marked during the cross-examination of the opposite party can be utilized only to contradict the witness. The statutory requirement of laying down the foundation for producing secondary evidence was not done in the instant case and the failure to lay foundation rendered Ext. B1 unreliable and inadmissible in law. The learned counsel further relied upon the decis....
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....in a most callous, negligent, and irresponsible manner, as a result of which, the plaintiff had paraplegia from D4 level. It is further pleaded that the plaintiff was at his prime of youth and as a result of the negligent and callous keyhole surgery done on him, he became disabled and bedridden and that the 2nd defendant is responsible for the negligence. 16. The purpose of pleadings is to intimate the opposite party about the nature of the case that is set up against him. As held by the Supreme Court in Shy am Narayan Prasad v. Krishna Prasad and Others [(2018) 7 SCC 646], pleadings are meant to give to each side, an intimation of the case of the other, so that, it may be met, to enable courts to determine what is really at issue between the parties. In the case of medical negligence alleged to have occurred under anesthesia and inside the operation theater, the injured may be able to specify in his pleadings only the material fact of nature of injury caused. Detailed or specific acts of negligence are not within the domain of the plaintiff's knowledge, since admittedly the plaintiff was under general anesthesia. 17. Further, the pleading that due to the negligence of the de....
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....t. 21. Chapter V of the Indian Evidence Act, 1872, deals with documentary evidence. Section 61 states that the contents of a document may be proved either by primary or by secondary evidence. Primary evidence as per Section 62 means the document itself, while secondary evidence as per Section 63 includes copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies or even copies made from or compared with the original. Under Section 64, documents are to be proved by primary evidence except in the sub-clauses specified in Section 65. 22. Evidence given by the witnesses do not whisper anything about the original of Ext. B1. The foundation for accepting Ext. B1 as secondary evidence has not been laid. It has not been stated by DW1 that the original has been destroyed or lost or that he could not produce the original before the court. In the absence of such a statement, Ext. B1 is inadmissible in evidence as secondary evidence and the said document and its contents cannot be looked into at all. 23. Other than page 14 in Ext. B1, no other page contains the signature of the plaintiff. The only document i....
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....e cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon." 26. There are four stages before a Court of law can rely upon a document. They are (i) marking of a document, (ii) admissibility of a document, (iii) proof of contents of the document, and (iv) evaluation of the document. Reliance upon a document can be made by the court only if all the above four stages are complied with or satisfied. By the mere marking of a document, it does not become admissible in evidence. Further, the marking of a document and being admissible in evidence, will still not render the contents of a document as 'proved'. When a document, admissible in evidence, is marked, still to be relied upon by the courts, its contents will have to be proved. For the contents of a document to have a probative ....
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....uld be the effect? 30. Before we consider the applicability of the aforesaid maxim, it may be worthwhile to remind ourselves about the principle of the maxim 'res ipsa loquitor'. As is common knowledge, the maxim means "the thing speaks for itself". It is a rule of evidence. It is a maxim that can be relied upon by a party to a litigation, who has no knowledge or insufficient knowledge about how the incident occurred, to rely upon the incident and the attendant circumstances, as evidence of what that party intends to prove. The maxim imposes a burden upon the defendant, who has knowledge about what happened, from avoiding his responsibility, simply by choosing not to give any evidence regarding the negligent act. In other words, a person, who may not be in a position to explain the reason for a certain state of affairs, cannot be compelled by law to explain those reasons, if he proves the existence of those state of affairs, and instead, can compel that person within whose realm of knowledge lies the reason for the state of affairs. In the event of an explanation not forthcoming from the person who has the knowledge, then the law comes to the aid of the person who suffered....
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....jury [see Hajgato v. London Health Association [(1982) 36 OR 2d 669] at p.682]" 33. The decision in Gourikutty v. Raghavan, reported in (2001 (3) KLT 332) can also be of useful reference to the facts of this case. 34. Ext. A1 discharge certificate issued by defendant no. 1 shows that plaintiff was admitted on 25-09-2005 and was discharged only on 22-12-2005. Though Ext. A1 was prepared at the time of discharge of the plaintiff from the hospital, still, it mentions that right PCNL and Endopyelotomy under general anesthesia was planned on 27-09-2005, the patient was put to a prone position, pelvicalicine was opacified with contrast injected through the ureteric catheter, sub coastal mid posterior calyceal puncture and track dilation done and amplatz sheath introduced over the dilators. During the process, the patient developed a cardiac problem, and the procedure was abandoned and he was shifted immediately to ICCU and that both his lower limbs were not moving. Ext. A2 CT scan report dated 28-09-2005 at the Sree Uthradom Thirunal Hospital shows that cerebral oedema is present on the next day. Ext. A4 MRI of the brain shows findings that can represent hypoxic ischaemic encephalopath....