Extracts of the Judgment by High Court of Delhi Dated October 1, 2008
Govt. of NCT Delhi and Union of India Vs. Sudha Devi and Anr
1. Sudha Devi was admitted to the Maternity Ward of GTB Hospital, Shahdara on July 7, 2003 for a delivery through Caesarian operation. A male child was born to her the same day at 2.30 p.m. Because of the pain killers and sedatives given to her during surgery her mental alertness was affected.
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Being a female ward, no male members were allowed to stay in the ward. She had no female relatives to look after her and a lady in the neighborhood, Indu volunteered to give her company in the hospital.
2. At around 4.30. am on July 8, 2003 the infant was found missing. Obviously, the infant had been kidnapped. A FIR under Section 363 IPC was registered with the local police. The infant could not be found.
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3. Sudha Devi sued the hospital authorities as also the Govt, of NCT Delhi which had established the hospital, for damages. She impleaded the Commissioner of Police, Delhi as also the Union of India as parties. She claimed Rs 5 lakhs as compensation.
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4. She succeeded. Vide impugned judgment and decree dated July 24, 2007 holding defendants No.l, 2 and 3, guilty of negligence, the suit stands decreed.
6. In her testimony Indu deposed that her young son was with her at the hospital and about 4.30. a.m. on the fateful day she had to take him to the toilet. When she returned from the toilet she found that the male child born to Sudha Devi was missing.
She stated that the doctors were informed of the same and a complaint was lodged with the police. She stated that a search was made for the missing infant child but he could not be found.
10. Learned Trial Judge has held that it was the duty of the hospital to ensure that the patients admitted at the hospital are not visited with any harm.
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Emphasis has been laid by the leaned Trial Judge on extra care required to be taken at the maternity ward where the young mothers, after the delivery, would presumably not be in their full senses and especially those mothers who have undergone Caesarian sections.
11. Damages in sum of Rs 5 lakhs have been awarded to Sudha Devi. The suit has been dismissed against the Commissioner of Police.
The hospital, the Government of NCT Delhi and the Union of India have been made jointly and severally liable to satisfy the decree.
12. Learned counsel for the appellants urged that merely because security is deployed at the hospital by the hospital authorities does not mean that the patients and their attendants are absolved of the duty to take care of themselves or their children and wards.
Learned counsel urged that the hospital being run by the Government of NCT Delhi does not charge any money and hence would not be responsible for the safety of the patients admitted at the hospital. Sudha Devi was accompanied by Indu who was the attendant and thus, it was the duty of Indu to take care of the infant. Lastly, learned counsel urged that the compensation in sum of Rs 5 lakhs is excessive.
The court held that
16. “…………… it was necessary, indeed it was the duty of the hospital authorities, to take effective measures to secure that the ward was watched and protected from unauthorized persons, prohibiting their entry within the precincts of the maternity ward.
23. We concur with the view taken by the learned Trial Judge that Sudha Devi was entitled to recover damages from the hospital authorities and the Government of NCT of Delhi which had established the hospital.
26. The pain and suffering of the parents whose child is dead would be less than the pain and suffering of parents whose child is lost and is not found.
The reason is that the human mind finds solace in a death by believing that the body is free from the troubles of life and the soul has found a comfortable abode in some other form.
But, where a child is lost, but is in the world of living, the trauma of the well-being of the child is suffered by the parents each year of their life.
Every joyous occasion, every festival and every holiday brings back the memory of the missing child and the thought is bound to float in the mind of the parents: Is our child happy, is he well fed, where is he, hopefully, he is not a bonded labor somewhere.
Hopefully a gang of beggars has not maimed our child and put him on the streets to beg. This floating thought makes painful the memory of the lost child and is a continuous trauma for the parents for all their life.
27. Recompense for mental pain and suffering is an essential attribute of a no pecuniary loss to be compensated. We hold that no case is made out to interfere with the quantum of damages awarded by the learned Trial Judge.
30. The suit filed against Union of India is dismissed. We affirm the impugned judgment and decree against GTB Hospital and the Govt, of NCT of Delhi.
31. The Govt, of NCT of Delhi and GTB Hospital are held jointly and severally liable to pay Rs 5 lakhs to the plaintiff. They shall additionally pay the costs in the appeal to the respondent No. 1.