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PETITIONER: ACHUTRAO HARIBHAU KHODWA

       Vs.

RESPONDENT: STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT:       20/02/1996

BENCH: KIRPAL B.N. (J) BENCH: KIRPAL B.N. (J) BHARUCHA S.P. (J)

CITATION:  1996 SCC  (2) 634        JT 1996 (2)   624  1996 SCALE  (2)328

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Kirpal, J.      The appellants  are aggrieved  by the  judgment of  the Aurangabad Bench of the Bombay High Court which has reversed a decree  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 sterilization operation at the Civil Hospital, Aurangabad.      The case  of the  appellants before the trial court was that the  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  Gynecology as a doctor and it is she who attended on Chandrikabai. Respondent no.3 was the Medical Officer  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 sterilization  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 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  Gynecological department.  At  the  insistence  of appellant no.1 Dr. Divan examined Chandrikabai on 15th July, 1963, and  seeing her  condition,  he  is  alleged  to  have suggested that  the sterilization  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 became  very serious.  On 19th  July, 1963, Dr.

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Divan, on  being called  once again,  re-opened the wound of the earlier  operation in  order to ascertain the true cause of the  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  sterilization  operation  was performed on  her. It was 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.      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 sterilization operation on 13th July  1963,   as  well  as  the  irresponsible  behavior  of respondent  no.3.  The  appellants  also  alleged  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 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 of Rs.1,75,00O/-.  It may  here be noticed that the suit was commenced  with   the  appellants’  filing  application  for permission to  sue in  form 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 that  the appellants’  suit  was  false.  It  was denied that  there was  any negligence in the performance of the sterilization  operation on 13th July 1963, at the hands of respondent no. 2. In fact the case of the respondents was that after  the sterilization  operation on 13th July, 1963, the condition  of Chandrikabai had improved. All allegations of negligence  etc. were  specifically denied.  In  addition thereto,  respondents   2  and   3  filed  separate  written statements in which they also denied any negligence on their part. 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 respondents.      In view of the pleadings of the parties the Civil Judge framed as many as II issues which are as follows:      1. Do  plaintiffs  prove  that  the      defendant   no.2    performed   the      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,  lack   of   care   and      insufficient   diligence   in   the      operation  performed  by  defendant

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    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 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      Chandrikabai on 24th July 1963."      4. Do  plaintiff’s prove  that  the      defendants no.2  and 3 did not take      proper care  of Chandrikabai in the      post operation stage as per details      stated in para 7 of the plaint.      5 Do  plaintiff’s  prove  that  the      defendant no.4  also did  not  take      any proper and necessary steps when      he was  instructed about  the  pain      received by Chandrikabai?      6. Do  they prove  that  there  was      mismanagement and careless behavior      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?      7. Do the plaintiffs prove that the      death of  Chanbdrikabai 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      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?      11. What decree and order?      In support  of their  case the  appellants, apart  from examining appellant  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 commission, Dr. Ajinkya who was a Gynecologist  and Obstetrician of Bombay. According to Dr. Divan, after  the sterilization  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  inflammatory condition  had  reached  a stage from  which recovery  was very  difficult.  After  the removal of  the mop Dr. Divan said that he saw the condition of the  intestine which  continued to  remain paralysed. The treatment 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 his having the benefit of seeing the case papers. On behalf  of  the  respondents,  apart  from  themselves,  two experts, namely,  Dr. Marwa,  Professor of  Surgery, Medical College,  Aurangabad   and  Dr.B.V.   Purandare,  a  leading Obstetrician and  Gynecologist of  Bombay were examined. The

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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 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 throw the blame on Dr. Divan. According to them, they had  prohibited   Dr.  Divan   from  performing  the  second operation and  the said  respondents 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.      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 Government could not  be held  liable for  tortious act  committed in a hospital maintained  by it.  Thereafter, it held that though there was no justification 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 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, 1963,  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  septicaemia  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 sterilization operation, or thereafter, had definitely caused the death of Chandrikabai.  While,   holding  that  respondent  no.2  had definitely been  negligent  in  leaving  a  mop  inside  the 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 respondents could be held liable  for negligence.  It, accordingly,  allowed  the appeals and dismissed the suit.      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 cannot  be held to be variously liable if it is found  that the  death of  Chandrikabi was  caused due to

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negligence on the part of its employees.      In State of Rajasthan Vs. Mst. Vidhyawati and Anr. (AIR 1962 SC  933) the  question arose with regard to the various liability of  the State of 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 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 the  State in exercise of its sovereign powers and  was not a 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 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 Vs. 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 Maharashtra cannot be held to be variously  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 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 characterized  as sovereign  powers  and, therefore, the  claim could  not be  sustained.  This  Court distinguished  the   decision  in   Vidhyawati’s   case   by observing:      "In dealing  with  such  cases,  it      must be borne in mind that when the      State   pleads   immunity   against      claims for  damages resulting  from      injury caused  by negligent acts of      its   servants,    the   area    or      employment referable  to  sovereign      powers must be strictly determined.      Before such  a plea  is upheld, the      Court must  always  find  that  the      impugned act  was committed  in the      course   of   an   undertaking   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;      "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

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    into  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     be      conveniently      described      as      nongovernmental  or  non-sovereign,      citizens 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 Court in its      decision in  the case  of State  of      Rajasthan." Two recent  decisions where  the State  has been  held to be variously liable  on account  of the  negligent acts  of its employees are those of N. Nagendra Rao and Company Vs. State of  Andhra  Pradesh  (1994  (6)  SCC  205)  and    State  of Maharashtra &  Ors. Vs.  Kanchanmala Vijay  Singh   Shrike & Ors. (  JT 1995  SC 155).  In Nagendra Rao’s case some goods had been  conficated  pursuant  to  an  order  passed  under Section 6 A of the Essential Commodities Act, 1955. The said order was annulled 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 refused to take delivery and filed a suit  claiming value  of the goods by way of compensation. The   High Court  of Andhra  Pradesh held that the State was not variously  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:      "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      between   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     various

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    liability  of   the  State    being      linked  with   negligence  of   its      officer,  if   they  can   be  sued      personally for  which there  is  no      death 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      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." 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:           "Traditionally,  before  court      directed    payment     of     tort      compensation, 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 attitude  of the  courts  while      judging the  various  liability  of      the employer  for negligence of the      employee.   Negligence    is    the      omission 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      guilty  of  no  fault  himself,  is      liable for  the damage  done by the      fault or  negligence of his servant      acting  in   the  course   of   his      employment. In 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      acting  within  the  scope  of  his      employment and  in so  acting  done      something negligent  or wrongful. A      master  is  liable  even  for  acts

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    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      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  because  it  considered  that maintaining and  running a   hospital was an exercise of the State’s  sovereign   power.  We   do  not  think  that  this conclusion is   correct.  Running a  hospital is  a  welfare activity undertaken  by the  government but  it  is  not  an exclusive function or activity of the government so as to be classified as  one which  could  be  regarded  as  being  in 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  function, similarly the running of  a hospital,  where the  members 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 variously  liable for  the  damages which may  become payable  on account  of negligence  of its doctors or other employees.      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 Bolam  Vs.  Friern  Hospital Management Committee  ( [1957]  1 WLR  582 ).  It was to the effect that a doctor is not guilty of negligence if he acted in accordance  with a  practice  accepted  as  proper  by  a responsible body  of medicalmen  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 Vs.  Board of  Governors of Bethlem Roval Hospital  ( [1985]  A.C. 871 at 881 ) Dealing with the question of  negligence, the  High  Court  of  Australia  in Rogers Vs.  Whitaker (  [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   or  group  in  the  community.  It  would, therefore, appear  that the  Australian High Court has taken a somewhat  different view  than the principle enunciated in Bolam’s case.   This  Court has  had an  occasion to go into this question  in the case of Dr.Laxman Balkrishan Joshi Vs. 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  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

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of the  doctors  to  the  patient  this  court,  in  appeal, observed as follows:      "The duties  which a doctor owes to      his patient are clear. A 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  treatment  to      give or  a  duty  of  care  in  the      administration of that treatment. A      breach of any of 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 low  degree of care and      competence judged  in the  light of      the  particular   circumstances  of      each case is what the law requires.      The above  principle was again applied by this court in the case  of A.S. Mittal and Ors. vs. 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  observed  "A  mistake  by  a  medical practitioner which  no reasonably  competent and  a  careful practitioner would  have committed  is a negligent one." The Court also  took note  that the  law recognizes  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 Street  on Torts (1983) (7th Edn.) wherein it was stated that the doctrine of res ipso  loquitur was  attracted: "....Where an unexplained accident occurs  from a  thing  under  the  control  of  the defendant, and  medical or  other expert evidence shows that such accidents  would not  happen if  proper care were used, there is  at least  evidence of  negligence for a jury." The latest case to which reference can be made is that of Indian Medical Association  Vs. V.P.  Shantha and Ors. (1995) 6 SCC 651). The  question which arose in this case was 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  Jackson   &  Powell   on Professional 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 in giving advice or performing services."      The skill  of medical practitioners differs from doctor to doctor.  The very  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

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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 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  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 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.      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 a child on 10th July, 1963. She had a sterilization operation on 13th July, 1963.  This operation  is not  known to  be serious in nature and  in fact  was performed  under local  anesthesia. 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 had a minor operation on 13th July, 1963 and due to the 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 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   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 during the  first operation  led, ultimately,  to her death. But for  the fact  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 mop inside the abdomen of Chandrikabai which  led to  the development  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 sterilization 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,  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. 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

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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 no.1 and the State must  be held to be variously 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  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 Chandrikabai. Once death  by negligence in the hospital is established, as 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 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.