Holding

The State of Maharashtra is vicariously liable for the negligence of its doctors, and the respondents were negligent, causing the death of the patient.

Summary

The wife of the appellant was admitted to a government civil hospital for delivery and a sterilisation operation. During the sterilisation a mop was left inside her peritoneal cavity, leading to peritonitis and her death. The appellants sued the State of Maharashtra and the doctors for damages. The trial court awarded a modest sum, but the High Court reversed, holding the State immune from tort liability in a government hospital and finding no causation. The Supreme Court held that running a hospital is a non‑sovereign welfare activity, making the State vicariously liable for the negligent acts of its employees. It found respondents 2 and 3 negligent, applied res ipsa loquitur, and concluded the mop caused the peritonitis and death. The appeal was allowed, the High Court judgment set aside, the trial court decree restored, and costs awarded.

Issues considered

Whether the State of Maharashtra can be held vicariously liable for the negligence of its employees in a government‑run hospital.
Whether the doctors and medical officer were negligent in performing the sterilisation operation.
Whether the negligence of leaving a mop inside the patient’s abdomen caused her death.

Legislation cited

Constitution of Indias. Article 300

Subjects

vicarious liabilitystate liabilitymedical negligenceres ipsa loquiturgovernment hospitaltortsovereign immunitydamages

Judgment

ACHUTRAO HARIBHAU KHODWA AND ORS. A
v.
STATE OF MAHARASHTRA AND ORS.

FEBRUARY 20, 1996

[S.P. BHARUCHA AND B.N. KIRPAL, JJ.) B

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
c
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
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.

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
B 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
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
G
HELD : 1.1. Running a hospital is a welfare activity undertaken by

H
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
government may enter into many co1a1mercial. and other activities which
-
AH. KHODWAv. STATE 883

have no relation to the traditional concept of governmental activity in A
exercise of sovereign power. Just as running of passenger buses for the
benefit of general public is not a sovereign function, similarly the running
of a hospital, where the member of the general public can come for
treatment, cannot also be regarded as being an activity having a sovereign
character. This being so, the state would be vicariously liable for the B
damages which may become payable on account of negligence of its doctors

- or other employees. [894-F-H]

State of Rajasthan v. Mst. Vidhyawati and Anr., AIR (1962) SC 933;
Kasturi Lal Ralia Ram Jain v. 17ie State of Uttar Pradesh, AIR (1965) SC
1039; N. Nagendra Rao and Company v. State of Andhra Pradesh, [1994) 6 C
... SCC 205 and State of Maharashtra & Ors. v. Kanchanmala Vijay Singh
Shrike & Ors., JT (1995) SC 155, relied on.

1.2 The skill of medical practitioner· differs from doctor to doctor.
The very nature of the profession is such that there may by more than one
course of treatment which may by advisable for treating a patient. Courts D
would indeed be slow in attributing negligence on the part of a doctor if
he has performed his duties to the best of his ability and with due care
and caution. Medical opinion may differ with regard to the course of action
to be taken by a doctor treating a patient. but as long as a doctor in a
manner which is acceptable to the medical profession and the court finds E
that he has attended on the patient with due care skill and diligence and
if the patient still does not survive or suffers a permanent ailment, it would
be difficult to hold the doctor to be guilty of negligence. [895-G-H, 896-A]

1.3 In cases where the doctors act carelessly and in a manner which
is not expected of a medical practitioner, then in such a case an action in F
torts would be maintainable. A medical practitioner has various duties
towards his patient and he must act with a reasonable degree of skill and
knowledge and must exercise a reasonable degree of care. This is the least
which a patient expects from a doctor. [896-B]

1.4 In the present case the facts speak for themselves. Negligence was G
writ large. In a case like this the doctrine of res ipso loquitur clearly applies.
The deceased had a minor operation and due to the negligence of respon-
dent No. 2 a mop (towel) was left inside her peritonial cavity. In a number
of cases when foreign bodies are left inside the body of a human being
either deliberately, as in the case of orthopaedic operations, or accidentally H
884 SUPREME COURT REPORTS [1996) 2 S.C.R.

A no harm may befall the patient, but it also happens that complications can
arise when the doctor acts without due care and caution and leaves a
foreign body inside the patient after performing an operation and it
suppurates. The formation of pus leaves no doubt that the mop left in the
abdomen caused it, and it was the pus !ormation that caused all the
subsequent difficulties. There is no escape from the conclusion that the
B negligence in leaving the mop in patient's abdomen during the first opera-
tion led, ultimately, to her death. But for the fact that a mop left inside the
body, the second operation would not have taken place. It was the leaving
of that mop inside the abdomen of the deceased which led to the develop-
ment of peritonitis leading to her death. She was admitted to the hospital
C for a simple case of delivery followed by a sterlisation operation. But even
after a normal delivery she did not come out of the hospital alive. Under
these circumstances, and in the absence of any valid explanation by the
respondents which would satisfy the court that there was no negligence on
their part, it was held that the deceased died due to negligence of respon-
D dents 2 and 3. [896-E-H, 897-A]

1.5 Even if it be assumed that it is the second operation performed
by PW 2, another doctor which led to the peritonitis, the fact still remains
that but for the leaving of the mop inside the peritonial cavity, it would
not been necessary to have the secon.d operation. Assuming even that the
,E second operation was done negligently or that there was lack of adequate
care after the operation which led to peritonitis, the fact remains that PW
2 was an employee of respondent No. 1 and the State must be held to be
vicariously liable for the negligent acts of its employees working in the said
hospital. The claim of the appellants could not be defeated merely because
F it may not have been conclusively proved as to which of the doctors
employed by the State in the hospital or other staff acted negligently which
caused the death of the deceased. Once death by negligence in the hospital
is established, as in the case the State would be liable to pay the damages.
Therefore, the Higb Court clearly fell in error in reversing the judgment
G of the trial court and in dismissing the appellants' suit. [897-B-D]

Dr. Laxman Balk1ishan Joshi v. Dr. Tlimbak Bapu Godbole and Anr.,
AIR (1969) SC 128; A.S. Mittal & Ors v. State of U.P. & Ors., AIR (1989)
SC 1570 and Indian Medical Association v. V.P. Shantha and Ors., (1995]
H 6 sec 651, relied on.
AH. KHODWAv. STATE [K.IRPAL, J.] 885

Bo/am v. Friem Hospital Management Committee, (1957) WLF 582; A
Sidways v. Board of Governors of Beth/em Royal Hospital, (1985) A.C. 871
and Rogers v. Whitaker, (1993) 109 A.L.R., referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3318 of
1979.
B
From the Judgment and Order dated 15, 18, 20, 21 and 22.4. 77 of
the Bombay High Court in P.A. No 620/68 with F .A. No 852 of 1968.

S.V. Deshpande for the Appellants.

Ms. J.S. Wad, S.M. Jadhav, D.M. Nargolkar and B.Y. Kulkarni for C
the Respondents.

The Judgment of the Court was delivered by

KIRPAL, J. : The appellants are aggrieved by the judgment of the
Aurangabad Bench of the Bombay High Court which has reversed a decree D
for Rs. 36,000 passed by the Civil Judge, Second Division, Aurangabad, as
damages on account of the death of one Chandrikabai who was the wife
of appellant No. 1 and the mother of appellant Nos. 2 to 5, after she had
undergone a sterlisation operation at the Civil Hospital, Aurangabad.

The case of the appellants before the trial court was that the E
deceased Chandrikabai was admitted in the Civil Hospital, Aurangabad on
10th July, 1963, for delivery of a child. This maternity hospital. is attached
to the Medical College at Aurangabad and respondent No. 2 was working
in the department of Obstetrics and Gyanaecology as a doctor and it is she
who attended on Chandrikabai. Respondent No. 3 was the Medical Officer p
of the said hospital while respondent No. 4 was the Dean of Medical
College, Aurangabad. Chandrikabai delivered a male child on 10th July,
1963. As she had got herself admitted to this hospital with a view to
undergo a sterlisation operation after the delivery, the said operation was
performed by respondent No. 2 on 13th July, 1963. Soon thereafter
Chandrikabai developed high fever and also had acute pain which was G
abnormal after such a simple operation. Her condition deteriorated further
and on 15th July, 1963 appellant No. 1 approached respondent No. 3 and
one Dr. Divan, PW-2, who was a well-known surgeon and was attached to
the hospital, but was not directly connected with the Gynaecological
department. At the insistence of appellant No. 1 Dr. Divan examined H
886 SUPREME COURT REPORTS [1996] 2 S.C.R.
J
A Chandrikabai on 15th July 1963, and seeing her condition, he is alleged to
have suggested that the sterlisation operation which had been performed
should be re-opened. This suggestion was not acted upon by respondent
Nos. 2 and 3 and the condition of Chandrikabai become very serious. On
19th July, 1963, Dr. Divan, on being called once again, re-opened the
wound of the earlier operation in order to ascertain the true cause of the
B seriousness of the ailment and to find out the cause of the worsening .
condition of Chandrikabai. According to the appellants, respondent Nos.
2 and 3 assisted Dr. Divan in this operation. Dr. Divan, as a result of the
second operation, found that a mop (towel) had been left inside the body
of Chandrikabai when sterlisation operation was performed on her. It was
C found that there was collection of pus and the same was drained out by
Dr. Divan. Thereafter, the abdomen was closed and the second operation
completed. Even, thereafter the condition of Chandrikabai did not improve
and ultimately she expired on 24th July 1963.

D Alleging that Chandrikabai was working as a teacher in a government
school and her salary augmented the total income of the family, it was
pleaded that the death of Chandrikabai was caused due to the negligence
of respondent No. 2 who had performed the sterlisation operation on 13th
July 1963, as well as the irresponsible behaviour of respondent No. 3. The
appellants also alleged that the hospital lacked adequate medical aid and
E proper care and there was gross dereliction of duty on the part of the
officers of the Government Civil Hospital which directly. resulted in the
death of Chandrikabai and, therefore, the appellants were entitled to
recover damages from the Government of Maharashtra (respondent No.
1) as well as respondent Nos. 2 to 4. The appellants claimed total damages
F of Rs. 1,75,000. It may here be noticed that the suit was commenced with
the appellants' filing application for permission to sue in forma pauperis
and, on the same being allowed, the same was converted to Special Civil
Suit No. 5 of 1965.
-
Respondents 1 and 4 filed a common written statement contending
G that the appellants' suit was false. It was denied that there was any
negligence in the performance of the sterlisation operation on 13th July
1963, at the hands of respondent No. 2. In fact the case of the respondents
was that after the sterlisation operation on 13th July, 1963, the condition
of Chan9rikabai had improved. All allegations of negligence etc. were
H speci~cally denied. In addition thereto, respondents 2 and 3 filed separate
\_ A.H.KHODWAv.STATE[KIRPAL,J.] 887

written statements in which they also denied any negligence on their part. A
Respondent No. 2 denied having left any mop in the abdomen of
Chandrikabai 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. Respondent No. 3 also denied the recovery of the mop
from the abdomen and generally supported the case of the other respon- B
dents.

In view of the pleadings of the parties the Civil Judge framed as many
as 11 issues which are as follows :

"l. Do plaintiffs prove that the defendant No. 2 performed the C
operation without due care, attention and caution and in the most
negligent manner ?

2. Do plaintiffs prove that a mop was left in the abdomen of the
deceased Chandrikabai during the first operation, and if so, do
plaintiffs further prove that it was so left as a result of negligence, D
lack of care and insufficient diligence in the operation performed
by defendant No. 2 ?

3. Do plaintiffs prove that as a result of the mop remaining inside
the body of Chandrikabai during the first operation by defendant E
No. 2, a severe pain was caused to her deteriorating her health
and that the said mop disturbed the internal organism of the body
and resulted ultimately in the death of Chandrkabai on 24th July
1963."

4. Do plaintiffs prove that the defendants No. 2 and 3 did not take F
proper care of Chandrikabai in the post operation stage as per
details stated in para 7 of the plaint.

5. Do plaintiffs prove that the defendant No. 4 also did not take
any proper and necessary steps when he was instructed about the G
pain received by Chandrikabai ?

6. Do they prove that there was mismanagement and careless
behaviour in the hospital and negligence by defendant No. 3 in the
removal of the same as stated in last part of para 7 and that it
aggravated the situation resulting in the death of Chandrikabai ? H
1
·'
888 SUPREME COURT REPORTS (1996] 2 S.C.R.

A 7. Do the plaintiffs prove that the death of Chandrikabai was
caused due to failure of duty on the part of hospital authorities
and their dereliction of duty and hence all defendants are liable
for the same ?

8. Do plaintiffs prove the various details of compensation as stated
B in para 9 of the plaint ?

· 9. To what amount are plaintiffs entitled on account of damages? -<.'

10. What order about the recovery of the court fees ?
c 11. What decree and order ?

In support of their case the appellants, apart from examining appel-
lant No. 1 and his mother-in-law, also relied upon the evidence of Dr.
Divan PW-2. In addition thereto the appellants also examined, on commis-
D sion, Dr. Ajinkya who was a Gynaecologist and Obstetrician of Bombay.
According to Dr. Divan, after the sterlisation operation Chandrikabai had
suffered from post operative peritonitis. This was due to a mop which had
remained inside the peritonial cavity for a number of days and inflam-
matory condition had reached a stage from which recovery was very
difficult. After the removal of the mop Dr. Divan said that he saw the
E condition of the intestine which continued to remain paralysed. The treat-
ment of peritonitis was started from 15th July, 1963 and in his opinion the
death of the patient was due to the complications following the leaving of
the mop inside the abdomen. The other expert witness Dr. Ajinkya also
came to the same conclusion, though his statement was recorded without
F his having the benefit of seeing the case papers. On behalf of the respon-
dents, apart from themselves, two experts, namely Dr. Marwa, Professor of
Surgery, Medical College, Aurangabad and Dr. B.V. Purandare, a leading
Obstetrician and Gynaecologist of Bombay were examined. The trial court
did not rely upon the evidence of the experts examined by the respondents
because it came to the conclusion that the original documents and case
G 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 to the respondents' expert witnesses for
their opinion. The trial court, while accepting and relying on the evidence
of Dr. Divan, also observed that the effort of respondents 2 and 3 was to
H throw the blame on Dr. Divan. According to them, they had prohibited Dr.
A.H. KHODWAv. STATE[KIRPAL,J.] 889

Divan from performing the second operation and the said respondents A
even denied that a mop was recovered from the abdomen of Chandrikabai.
The trial court decided all the issues, except issues 5 and 6, in favour of
the appellants and passed a decree for Rs. 36,000 against respondent Nos.
1 to 3, but the suit against respondent No. 4 was dismissed.

B
The State as well as the respondents 2 and 3 filed appeals to the High
Court. In a marathon judgment of over 300 pages the High Court discussed
all the evidence and firstly came to the conclusion that, in law, the Govern-
ment could not be held liable for tortious act committed in a hospital
maintained by it. Thereafter, it held that though there was no justification C
for the delay in the authorities' concerned in supplying the case papers to
the appellants, no prejudice had been caused. The High Court did observe
that there were some erasure marks and rubbing off of the entries in the
original case papers, but held that it was not possible to infer therefrom
that the registers had been tampered with and that there was no material
before the trial court to hold that the case papers were tampered with by D
respondents 2 to 4. The High Court also noticed that the opinion of the
experts was conflicting. Whereas according to Dr. Divan and Dr. Ajinkya,
Chandrikabai had peritonitis even before the second operation on 19th
July, 1963, and she died because of the same, according to Dr. Purandare,
Chandrikabai was only suffering from acute gastic disorder till 19th July, E
and it was necessary for the doctors to have waited after removal of the
pus on that day and the second operation was possibly not necessary. Dr.
Purandare deposed that in the absence of a post mortem examination the
exact and correct cause of death could not be determined though, by
looking at the case papers, the cause of death was peritonitis with sep- F
ticaemia following the second operation. The opinion of Dr. Marwa was
also to the same effect. The High Court while accepting the evidence of
Dr. Purandare came to the conclusion that it was difficult to hold that
anything that was done during the sterlisation operation, or thereafter, had
definitely caused the death of Chandrikabai. While, holding that respon-

- dent No. 2 had definitely been negligent in leaving a mop inside the G
abdomen of Chandrikabai, it held that the appellants had failed to prove
that the negligence of leaving the mop inside the abdomen had caused the
death of Chandrikabai. It, therefore, concluded that none of the respon-
dents could be held liable for negligence. It, accordingly, allowed the
appeals and dismissed the suit. H
890 SUPREME COURT REPORTS [1996] 2 S.C.R.
_;
'

A Two questions which arise for consideration in this appeal are
whether the State of Maharashtra can 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.

Decisions of this Court now leave no scope for arguing that the State
B
cannot be held to be vicariously liable if it is found that death of
Chandrikabai was caused due to negligence on the part of its employees.

In State of Rajasthan v. Mst. Vidhyawati and Anr., AIR (1962) SC 933
the question arose with regard to the vicarious liability of the State of
C Rajasthan. In that case a vehicle owned by the State of Rajasthan, which
was being driven by its driver, met with an accident which resulted in the
death of one person. The death was caused due to the negligence of the
driver. The two contentions of the State of Rajasthan were that under
Article 300 of the Constitution, the State would not be liable, as the
D corresponding Indian State would not have been liable if the case had
arisen before the Constitution came into force. Secondly, it was contended
that the jeep which was driven rashly and negligently was being maintained
by tqe State in exercise of its sovereign powers and was not part of any
commercial activity of the State. Rejecting the said contention this Court
held that "the State .should be as much liable for tort in respect of a tortious
E act committed by its servant within the scope of his employment and
functioning as such, as any other employer." This question again came up
for consideration in Kasturi Lal Ralia Ram Jain v. The State of Uttar
Pradesh, AIR (1965) SC 1039 and which has been referred to by the High
Court in the present case while coming to the conclusion that the State of
p Maharashtra cannot be held to be vicariously liable. In Kasturi Lal's case
gold had been seized and the same had been kept in a malkhana. The
appellant demanded the return of this gold but the same was not returned.
It appeared that the same had been misappropriated by the person in -
charge of the malkhana. The respondents therein claimed that it was not
a case of negligence by the police officers and even if negligence was
G proved the State could not be held to be liable for the said loss. While
holding that there was negligence on the part of the police officers, this
Court' denied relief by observing that the powers which were exercised by
the police officers could be properly characterised as sovereign powers
and, therefore, the claim could not be sustained. This Court distinguished
H the decision in Vidhyawati's case by observing :
AH.KHODWAv. STATE[KIRPAL,J.) 891

"In dealing with such cases, it must be borne in mind that when A
the State pleads immunity against claims for damages resulting
from injury caused by negligent act of its servants, the area of
employment referable to sovereign powers must be strictly deter-
mined. Before such a plea is upheld, the Court must always find
that the impugned act was committed in the course of an under- B
taking or employment which is referable to the exercise of
sovereign power, or to the exercise of delegated sovereign
power ....... "

Explaining the distinction between the two types of cases, it was also
observed as follows : C

"It is not difficult to realize the significance and importance of
making such a distinction particularly at the present time when, in
pursuit of their welfare ideal, the Government of the States as well
as the Government of India naturally and legitimately enter into D
many commercial and other undertakings and activities which have
no relation with the traditional concept of governmental activities
in which the exercise of sovereign power is involved. It is necessary
to limit the area of these affairs of the State in relation to the
exercise of sovereign powers, so that if acts are committed by
Government employees in relation to other activities which may E
be conveniently described as non-governmental or non-sovereign,
citizen who have a cause of action for damages should not be
precluded from making their claim against the State. That is the
basis on which the area of the State immunity against such claims
must be limited; and this is exactly what has been done by this F
Court in its decision in the case of State of Rajasthan."

Two recent decisions where the State has been held to be vicariously liable
on account of the negligent act of its employees are those of N. Nagendra
Rao and Company v. State of Andhra Pradesh, [1994] 6 SCC 205 and State
of Maharashtra & Ors. v. Kanchanmala Vijaysingh Shrike & Ors., JT (1995) G
SC 155. In Nagendra Rao's case some goods had been confiscated pursuant
to an order passed under Section 6 A of the Essential Commodities Act,
1955. The said order was annuled but due to the negligence of the officers
concerned goods were not found to be of the same quality and quantity
which were there at the time of its confiscation. The owners of the goods H
892 SUPREME COURT REPORTS [1996) 2 S.C.R.

A refused to take delivery and filed a sit claiming value of the goods by way
of compensation. The High Court of Andhra Pradesh held that the State
was not vicariously liable for negligence of its officers in charge of their
statutory duties. Negativing this, this Court while· allowing the appeal
observed at page 235 as follows :
B "In Welfare State, functions of the State are not only defence
of the country or administration of justice or maintaining law and
order but extends to regulating and controlling the activities of
people in almost every sphere, educational, commercial, social,
economic, political and even marital. The demarcating line be-
c tween sovereign and non sovereign powers for which no rational
basis survives has largely disappeared. Therefore, barring functions
such as administration of justice, maintenance of law and order
and repression of crime etc. which are among the primary and
inalienable functions of a constitutional government, the State
cannot claim any immunity. The determination of vicarious liability
D of the State being linked with negligence of its officer, if they can
be sued personally for which there is no dearth of authority and
the law of misfeasance in discharge of public duty having marched
ahead, there is no rational for the proposition that even if the
officer is liable the State cannot be sued. The liability of the officer
E personally was not doubted even in Viscount Canterbury. But the
Crown was held immune on doctrine of sovereign immunity. Since
the doctrine has become outdated and sovereignty now vests in the
people, the State cannot claim any immunity and if a suit is
maintainable against the officer personally, than there is no reason
to hold that it would not be maintainable against the State."
F
A similar view has been taken in Kanchanmala Vijaysingh's case (supra)
where, dealing with a claim for compensation arising as a result. of an
accident with a jeep belonging to the State, it was observed as follows :

G "Traditionally, before court directed payment of tort compensa-
tion, the claimant had to establish the fault of the person causing
injury or damage. But of late, it shall appear from different judicial
pronouncements that the fault is being read as because of
someone's negligence or carelessness. Same is the approach and
H attitude of the courts while judging the vicarious liability of the
AH. KHODWAv. STATE [KIRPAL,J.) 893

employer for negligence of the employee. Negligence is the omis- A
sion to do something which a reasonable man is expected to do or
a prudent man is expected not to do. Whether in the facts and
circumstances of a particular case, the person causing injury to the
other was negligence or not has to be· examined on the materials
produced before the Court. It is the rule that an employer, though B

- guilty of no fault himself, is liable for the damage done by the fault
or negligevce of his servant acting in the course of his employment.
ln some case, it can be found that an employee was doing an
authorised act in an unauthorised but not a prohibited way. The
employer shall be liable for such act, because such employee was c
acting within the scope of his employment and in so acting done
something negligent or wrongful. A master is liable even for acts
which he has not authorised provided they are so connected with
acts which he has been so authorised. On the other hand, if the
act of the servant is not even remotely connected within the scope D
of employment and is an independent act, the master shall not be
responsible because the servant is not acting in the course of his
employment but has gone outside."

The High Court has observed that the government cannot be held
liable in tort for tortious acts committed in a hospital maintained by it E
because it considered that maintaining and running a hospital was an
exercise of the State's sovereign power. We do not think that this con-
clusion is correct. Running a hospital is a welfare activity undertaken by
the government but it is not an exclusive function or activity of the govern-
ment so as to be classified as one which could be regarded as being in F
exercise of its sovereign power. In Kasturi Lal's case itself, in the passage
which has been quoted hereinabove, this Court noticed that in pursuit of
the welfare ideal the government may enter into many commercial and
other activities which have no relation to the traditional concept of
governmental activity in exercise of sovereign power. Just as running of
passenger buses for the benefit of general public is not a sovereign func- G
tion, similarly the running of a hospital, where the members or the general
public can come for treatment, cannot also be regarded as being an activity
having a sovereign character. This being so, the State would be vicariously
liable for the damages which may become payable on account of negligence
of its doctors or other employees, H
894 SUPREME COURT REPORTS [1996] 2 S.C.R.

A Before considering whether the respondents in the present case
could be held to be negligent, it will be useful· to see as to what can be
regarded as negligence on the part of a doctor. The test with regard to the
negligence of a doctor was laid down in Bo/am v. Friem Hospital Manage-
ment Committee, (1957) l WLR 582. It was to the effect that a doctor is
not guilty of negligence if he acted in accordance with a practice accepted
B
as proper by a responsible body of medical men skilled in that particular
art. This principle in Bolam's case has been accepted by the House of
Lords in England as applicable to diagnosis and treatment. See Sidaway v.
Board of Govemors of Beth/em Royal Hospital, (1985) A.C. 871 at 881
Dealing with the question of negligence,. the High Court of Australia in
C Roge1's v. Whitake1; (1993) 109 A.L.R. has held that the question is not
whether the doctor's conduct accords with the practice of a medical
profession or some part of it, but whether it conforms to the standard of
reasonable care demanded by the law. That is a question for the court to
decide and the duty of deciding it cannot be delegated to any profession
D or group in the community. It would. therefore. appear that the Australian
High Court has taken a somewhat different view than the principle enun-
ciated in Bolam's case. This Court has had an occasion to go into this
question in the case of Dr. Laxman Balk1ishan Joshi v. Dr. Trimbak Bapu
Godbole and Anr., AIR (1969) SC 128. In that case the High Court had
held that the death of the son of the claimant was due to the shock
E resulting from reduction of the patient's fracture attempted by the doctor
without taking the elementary caution of giving anaesthetic. In this context,
with reference to the duties of the doctors to the patient this court, in
appeal, observed as follows :

F "The duties which a doctor owes to his patient are clear, A per
person who holds himself out ready to give medical advice and
treatment impliedly undertakes that he is possessed of skill and
knowledge for the purpose. Such a person when consulted by a
. patient owes him certain duties, viz., a duty of care in deciding
. whether to undertake the case, a duty of care in deciding whether
G treatment to give or a duty of care in the administration of that
.treatment. A breach of any or' those duties gives a right of action
for negligence to the patient. The practitioner must· bring to his
task a reasonable degree of skill and knowledge and must exercise
a reasonable degree of care. Neither the very highest nor a very
H low degree of care and competence judged in the light of the
AH. KHODWAv. STATE [KIRPAL, J.] 895

particular circumstances of each case is what the law requires." A

The above principle was again applied by this court in the case of
A.S. Mittal and Ors. v. State of U.P. and Ors., AIR (1989) SC 1570. In that
case irreparable damage had been done to the eyes of some of the patients
who were operated upon at an eye camp. Though this Court refrained from
deciding, in that particular case, whether the doctors were negligent, it B
observed 'A mistake by a medical practitioner which no reasonably com-
petent and a careful practitioner would have committed is a negligent one."
The Court also took note that the law recognises the dangers which are
inherent in surgical operations and that mistakes will occur, on occasions,
despite the exercise of reasonable skill and care. The Court further quoted C
Street on Torts (1983) (7th Edn.) wherein it was stated that the doctrine
of res ipso loquitur was attracted : 11 ••••••• Where an unexplained accident
occurs from a thing under the control of the defendant, and medical or
other expert evidence shows that accidents would not happen if proper
care were used, there is at least evidence of negligence for a jury." The D
latest case to which reference can be made is that of Indian Medical
Association v. V.P. Shantha & Ors., [1995) 6 SCC 651. The question which
arose in this case ~as whether the Consumer Protection Act, 1986, applied
to medical practitioners, hospitals and nursing homes. It was held in this
case that medical practitioners were not immune from a claim for damages
on the ground of negligence. The Court also approved a passage from E
Jackson & Powell on Professions} Negligence and held that "the approach
of the Courts is to require that professional men should possess a certain
minimum degree of competence and that they should exercise reasonable
care in the discharge of their duties. In general, a professional man owes
to his client a duty in tort as well as in contract to exercise reasonable care F
in giving advice or performing services."

The skill of medical practitioners differs from doctor to doctor. The
nature of the profession is such that there may be more than one course
of treatment which may be advisable for treating a patient. Courts would
indeed be slow in attributing negligence on the part of a doctor if he has G
performed his duties to the best of his ability and with due care and
caution. Medical opinion may differ with regard to the course of action to
be taken by a doctor treating a patient, but as long as a doctor acts in a
manner which is acceptable to the medical profession and the Court finds
that he has attended on the patient with due care skill and diligence and H
896 SUPREME COURT REPORTS [1996) 2 S.C.R.

A if the patient still does not survive or suffers a permanent ailment, it would
be difficult to hold the doctor to be guilty of negligence.
•
In cases where the doctors act carelessly and in a manner which is
not expected of a medical practitioner, then in such a case an action in
B torts would be maintainable. As held in Laxman's case (supra) by this
Court a medical practitioner has various duties towards his patient and he
must act with a reasonable degree of skill and knowledge and must exercise
a reasonable degree of care. This is the least which a patient expects from
a doctor.

C In the present case the facts speak for themselves. Negligence is writ
large. The facts as found by .both the courts, in a nutshell, are that
Chandrikabai was admitted to the government hospital where she delivered
..
1

a child on 10th July, 1963. She had a sterlisation operation on 13th July,
1963. This operation is not known to be serious in nature and in fact was
D performed under local anaethesia. Complications arose thereafter which
resulted in a second operation being performed on her on 19th July, 1963.
She did not survive for long and died on 24th July, 1963. Both Dr. Divan
and Dr. Purandare have stated that the cause of death was peritonitis. In
a case like this the doctrine of res ipso loquitur clearly applies.
Chandrikabai had a minor operation on 13th July, 1963 and due to the
E negligence of respondent No. 2 a mop (towel) was left inside her peritonial
cavity. It is true that in a number of cases when foreign bodies are left
inside the body of a human being either deliberately, as in the case of
orthopaedic operations, or accidentally no harm may befall the patient, but
it also happens that complications can arise when the doctor acts without
F due care and caution and leaves a foreign body inside the patient after
performing an operation and it suppurate·s. The formation of pus leaves no
doubt that the mop left in the abdomen caused it, and it was the pus
formation that caused all the subsequent difficulties. There is no escape
from the. conclusion that the negligence in leaving the mop in
Chandrikabai's abdomen dutihg the first operation led, ultimately, to her
G death. But for the fa~t that a mop was left inside the body, the second
operation on 19th July, 1963 would not have taken place. It is the leaving
of that mbp inside the abdome~ of Chandrikabai which led to the develop-
ment of peritonitis leading· to her death. She was admitted to the hospital
on 10th July, 1963 for a simple case of delivery followed by a sterlisation
H operation. But even after a normal delivery she did not ·come out of the
AH.KHODWAv. STATE[KIRPAL,J.] 897

hospital alive. Under these circumstances, and in the absence of any valid A
explanation by the respondents which would satisfy the court that there was
no negligence on their part, we have no hesitation in holding that
Chandrikabai died due to negligence of respondent Nos. 2 and 3.

Even if it be assumed that it is the second operation performed by
Dr. Divan which led to the peritonitis, as has been deposed to by Dr. B
Purandare, the fact still remains that but for the leaving of the mop inside
the peritonial cavity, it would not have been necessary to have the second
operation. Assuming even that the second operation was done negligently
or that there was lack of adequate care after the operation which led to
peritonitis, the fact remains that Dr. Divan was an employee of respondent C
No. 1 and the State must be held to be vicariously liable for the negligent
acts of its employees working in the said hospital. The claim of the
appellants cannot be defeated merely because it may not have been con-
clusively proved as to which of the doctors employed by the State in the
hospital or other staff acted negligently which caused the death of
Chandrikabai. Once death by negligence in the hospital is established, as D
in the case here, the State would be liable to pay the damages. In our
opinion, therefore, the High Court clearly fell in error in reversing the
judgment of the trial court and in dismissing the appellants' suit.

For the aforesaid reasons, this appeal is allowed, the judgment of the E
High Court of Bombay under appeal is set aside and the judgment and
decree of the trial court is restored. The appellants will also be entitled to
costs throughout.

R.A. Appeal allowed.