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Judgment
CM No.146-LPA of 2016
Delay of 30 days in re-filing the appeal is condoned.
C.M.stands allowed.
LPA No.67 of 2016
Learned counsel appearing for the appellants states
that he has no instructions to argue the case.
We notice that the case has been pending since 28th
March 2016 with absolutely no effort made by the appellants to
argue the case.
This appeal is directed against the judgment of the
learned Single Judge dated 07.09.2015.
The appellants, who were the writ petitioners as well,
prayed before the writ court for grant of compensation on account
of death of Radhe Shyam, who was husband of petitioner No.1
and father of petitioner No.2, caused allegedly due to negligence
of respondents No.1 to 3 for failure to properly diagnose the
disease.
It was averred in the petition that the writ petitioner
No.1 was a young girl forced into widowhood due to
inefficiency and negligence of respondents no.1 to 3. The
deceased was stated to be an Architect Engineer working with a
private company earning handsomely but the diagnostic failure
led to his untimely demise.
The learned Single Judge noticed that there was no
expert evidence on record to establish wrong or improper
diagnosis of the disease or for that purpose lack of adequate
medical aid. He further went on to conclude that in the absence of
expert evidence it would be difficult to conclude medical
negligence, particularly in the exercise of writ jurisdiction
fettering such a course in view of conflicting facts. The ailment
and demise of the deceased was attributed to Swine flu/NIHI flu
virus but since no evidence was brought about to establish
medical negligence, the writ petition was dismissed with liberty
to the appellants to avail remedies as may be available to them,
including filing of civil suit for compensation.
We find no infirmity in the findings recorded by the
learned Single Judge who has rightly dismissed the writ petition
by observing that in the absence of expert evidence the plea of
compensation on account of negligence or lack of diagnosis
could not be accepted. We would, however, while dismissing the
instant appeal only add to the observations of the learned Single
Judge that dismissal of writ petition or anything said in the order
would not come in the way of the appellants in the eventuality of
their seeking remedies in law.
Appeal dismissed.