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TMI Blog2020 (12) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... to put the defendants in the knowledge of the case of the plaintiff. The point is answered accordingly. Whether Ext. B1 is admissible in evidence? - HELD THAT:- 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 value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it - The finding of the learned Sub Judge, that Ext. B1 is inadmissible in evidence, is correct and justified in the circumstances and therefore, warrants no interference. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the removal of kidney stones. Two days later and half an hour into the surgery, tragedy struck and the operation was aborted. The young man was brought out from the operation theater as a paraplegic and his speech, lost. A suit for damages alleging medical negligence filed by the young man was decreed in part. The hospital and the doctor have preferred this appeal. 2. The counsel for both sides agreed that since the incident occurred in 2005 and the suit was actually of the year 2008, delayed consideration can result in further agony for both sides. We acceded to 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 opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n either case, there was no negligence on the part of the 2nd defendant while performing the operation and that the operation was abandoned to treat the unexpected complication that arose to the plaintiff. 5. Plaintiff examined himself as PW1 through an Advocate Commissioner, along with four other witnesses as PWs. 2 to 5 and marked Ext. A1 to Ext. A9(a) to Ext. A9(cd) while the defendants examined the 2nd defendant as DW1 and marked Ext. B1 and Ext. B2. PW4 and PW5 were expert witnesses who were examined pursuant to summons issued for their evidence. 6. The issues raised for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la Gounder v. Arulmigu Viswesaraswami V.P. Temple and Another (2003) 8 SCC 752, Mohammed Aynuddin Alias Miyam v. State of A.P. (2000) 7 SCC 72] and Gourikutty v. Raghavan (2001 (3) KLT 332) were referred for the proposition canvassed on the consideration of medical negligence. 11. On the other hand, Adv. Sri. Anoop Bhaskar contradicted the arguments of the appellants and submitted that this is a classic instance of the maxim res ipsa loquitor to be applied and the trial court was perfectly justified in applying the said maxim to the instant case. He further argued that the uncertain 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleadings are to be interpreted not with formalistic rigour but with the full awareness of the legal literacy levels of the litigants and also the nature of the case. 15. A perusal of paragraph 6 to 9 of the plaint shows that the plaintiff has averred that he was given anesthesia and taken to the operation theater and within thirty minutes, he was taken out after abandoning the operation and that he developed postrio paresis and became crippled for life. It was averred that the injury sustained by the plaintiff on his spinal-cord during keyhole surgery performed on him by the 2nd defendant was 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r given by the plaintiff before the operation, which bears his signature. The manner in which Exts. B1 and B1(a) were marked through PW1 is as follows: 20. Ext. B1 was produced, according to the plaintiff, not along with the written statement, but just before the commencement of evidence and sufficient foundation had not been laid for marking such a photocopy. It was pointed out that a document produced by the 2nd defendant and marked through the plaintiff, during cross-examination, can be utilized only to contradict the witness, in this case PW1, and not for utilizing it for the benefit of the 2nd defendant. 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 excep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alingam [(2011) 4 SCC 240], it was held as follows: 10. Provisions of S. 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecify the nature of acts done or performed on him, that could be depicted as negligent. Plaintiff, as a patient undergoing a procedure, can never claim knowledge of the niceties of the procedure and actual omissions, if any, by the professional, whom he relied upon for treatment. 29. An admittedly healthy man, who drove his bike to the hospital and 'walks' into the operation theater, is administered general anesthesia to carry out surgery for removal of kidney stones, is later, taken out of the operation theater as a paraplegic, will the maxim res ipsa loquitor get attracted on the above facts? If the maxim applies, what would 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 impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trations are extracted below: (i) Where, following an operation under general anesthetic, a patient in the recovery ward sustained brain damage caused by hypoxia for a period of four to five minutes. [See Coyne vs. Wigan Health Authority, [(1991) 2 Med. LR 301, (QBD)]. (ii) Where, following a routine appendicectomy under general anesthetic, an otherwise fit and healthy girl suffered a fit and went into a permanent coma, [see Lindsay vs. Mid-Western Health Board [(1993) 2 IR 147] at p.181]. (iii) Where an infection following surgery in a 'well-staffed and modern hospital remained undiagnosed until the patient sustained crippling injury [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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the preparation of Ext. B1 or who can vouchsafe the veracity of the contents of Ext. B1, all results in the defendants failing to prove that there was no negligence in the surgery performed on 27-09-2005. Even the vague and indirect reference to a possible lack of oxygen supply to the brain and its cause has not been explained by the defendants. They have miserably failed to discharge their onus or explain the cause of the injury. 37. In this context, it may be of relevance to refer to Ext. B1(a) which is the photocopy of the consent given by the plaintiff for the surgery. Even though the said document has many of the flaws that could be attributed to Ext. B1, still, since the signature in Ext. B1(a) is admitted, the same is looked into for the limited purpose of identifying the possible mishaps which were in contemplation for which consent was given. In none of the possible outcomes referred to in Ext. B1(a), is there a complication referred to or mentioned, of the nature that occurred to the plaintiff. The disability now suffered by the plaintiff is not seen referred to as an expected complication from a procedure of this nature. This also indicates that it is not a normal com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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