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Judgment
Sabyasachi Bhattacharyya, J
The present challenge is directed at the instance of the defendant no. 4 in a suit for money in lieu of compensation claimed by the plaintiff alleging wrong treatment of the plaintiff by some doctors, while the plaintiff was admitted to the petitioner-hospital.
The present petitioner took out an application under Order I Rule 10 of the Code of Civil Procedure in the court below for expunction of its name from the suit, since no cause of action has allegedly been disclosed against the petitioner, as per the contention of the petitioner in the plaint. Such application being dismissed, the present revision has been preferred.
In this context, learned counsel for the petitioner places particular reliance on paragraphs 14 and 18 of the plaint to show that virtually no allegation was made against the present petitioner in the money suit.
It is further submitted on behalf of the petitioner that there was a previous proceeding before the consumer forum in respect of the same alleged wrong treatment, initiated by the present plaintiff himself, wherein the present petitioner was impleaded merely as a proforma opposite party and no relief was claimed against the petitioner, but only against doctors and other staff. Relying on such previous complaint, which was subsequently withdrawn by the opposite party no. 1/plainitff, learned counsel for the petitioner submits that it is evident that the plaintiff did not ventilate any complaint against the present petitioner at any point of time.
Learned counsel for the petitioner cites an unreported judgment of a coordinate bench of this Court dated December 5, 206 passed in CS No. 241 of 2016 (Ruchi Soya Industries Limited vs. AVR Storage Tank Terminal Pvt. Ltd. & Anr.), along with connected applications, wherein the names of four defendants were sought to be expunged and the learned Single Judge ultimately permitted the plaintiff therein to carry on the suit against the first defendant only upon paying a huge amount as security.
A plain and meaningful reading of the plaint in the present case, a copy of which is handed over today by learned counsel for the petitioner, shows that the there are certain portions of the plaint, where the plaintiff has specifically averred that the alleged wrong treatment occurred under the aegis of the petitioner/hospital, while the plaintiff was admitted to the said hospital. For example, paragraph no. 6 of the plaint contains an averment that the plaintiff was released from the defendant no. 4/petitioner-hospital, where he developed complications, on February 03, 2012 with advice of medication etc. but he was not fit to follow his normal chores of daily life and had other severe aliments and discomforts thereafter.
Paragraph no. 7 of the plaint contains an averment that neither the patient nor the patient party was explained any such complication or risk factors, such as injury to CBD and hepatic artery causing severe hepatobiliary disruption resulting in danger of his life. Moreover, no further consent was taken for another surgery namely, Hepatics Jejunostomy below the junction of hepatic duct from the plaintiff/opposite party no. 1.
Moreover, it has been alleged in paragraph 13 of the plaint that in view of the facts and circumstances stated in the plaint, it is evident that the plaintiff has suffered multiple loss and damages due to negligent act and also deficiency of service on the part of the defendants. There is an interpolation by hand in paragraph 13 whereby all the defendants were made liable individually, collectively and in a vicarious manner.
Even leaving aside the said interpolation by hand, it was categorically averred in paragraph 13 that all the defendants are guilty of deficiency of service and negligent act. The cause of action of the suit was based on such negligent act. Although no specific allegation was made against the petitioner/hospital as to the exact nature of the deficiency of service, the allegations, as indicated above, are sufficient to disclose a prima facie cause of action against the petitioner as well, justifying impleadment of the petitioner in the suit. Undoubtedly, in the event it is found on evidence at trial that the petitioner had no negligence or liability for the loss suffered by the plaintiff/opposite party no. 1, the defendant no. 4/petitioner would be entitled to costs and a dismissal of the suit as far as the said petitioner is concerned.
However, it is premature to release the petitioner from the array of parties of the suit at the present juncture, without any adjudication on the allegations made in the plaint.
As regards the cited judgment of the coordinate bench, the same was rendered on the facts of the said case. There was a question involving the cause of action taken in the plaint against the first defendant being tenuous, since it was recorded by the learned Single Judge that it was evident that though the plaintiff had alleged that the first defendant was liable to make the supply of 1000 MT of oil on behalf of the second defendant, there was no evidence in support of such assertion.
It could not be clearly said, as recorded by the learned Single Judge, that the plaint disclosed any cause of action, but only that the allegations against the first defendant were not substantiated by any document emanating from the first defendant or the like.
However, contrary to the cited case, in the present case, in view of the alleged admission of the plaintiff in the petitioner-hospital during the relevant period and certain allegations, such as the hospital not performing its duty at the time of initial discharge of the patient and certain allegations, however vague they may be, as to the hospital not advising the plaintiff properly at the time of discharge, it cannot be said that the facts of the present case can be equated with the one cited.
It is well-settled that a proposition laid down in a judgment has to be taken in the context of the facts of that case. There being a huge difference between the factual matrix of the two cases, being the present case and the cited judgment, the ratio laid down therein cannot be applied to the present case, particularly, since the trial of the present case has not yet started.
Accordingly, the trial court acted within its jurisdiction in rejecting the petitioner's application for being expunged as a party from the suit.
Hence, C.O. No. 3382 of 2019 is dismissed without, however, any order as to costs.
Urgent photostat certified copy of this order, if applied for, be made available to the petitioner upon compliance of necessary formalities.