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Official Citation: 1996 CLC 1440
Court / Jurisdiction: Peshawar High Court
Year of Decision: 1996
Decision Date: 1996-04-25
Parties: Dr. ATTA MUHAMMAD KHANZADA vs MUHAMMAD SHERIN
This judicial decision was delivered by the Peshawar High Court on 1996-04-25. The matter involves proceedings between Dr. ATTA MUHAMMAD KHANZADA and MUHAMMAD SHERIN, officially reported as 1996 CLC 1440. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 1996 CLC 1440
Court Name: Peshawar High Court Judge(s): Qazi Muhammad Farooq, Shakirullah Jan Title: Dr. ATTA MUHAMMAD KHANZADA vs MUHAMMAD SHERIN Case No.: Regular First Appeal No,3 of 1994 Date of Judgment:1996-04-25 Reported As: 1996 CLC 1440 Result: Appeal partly accepted
JUDGMENT
JUDGMENT ' QAZI MUHAMMAD FAROOQ, J.---This is a Regular First Appeal by Dr. Atta Muhammad Khanzada, an Eye Specialist, against the judgment and decree of the learned Civil Judge Ist Class, Peshawar, dated 3-11-1993 by which the suit of the respondent Muhammad Sherin, an Ex-Councillor and landlord, for recovery of Rs,5,50,000 as compensation for medical treatment and mental torture was decreed with costs. 2. The suit was filed by the respondent on 14-7-1991 wherein it was alleged that the appellant had implanted an Intra-Ocular Lens in one of his eyes through an operation carried out in his private Clinic known as ' Al-Noor Eye Clinic' situate in University Town, Peshawar and had charged a sum of Rs,8,000 as fee and advised him to show up after a fortnight. Shortly, after the operation he felt pain in the operated eye and swelling also developed around it on which he contacted the appellant who after charging his consultation fee to the tune of Rs,200 informed him that the lens had been implanted upside down and second operation shall have to be carried out. The second operation was carried out on that very day without local anaesthesia and medical precautions and after the operation he was lodged in the living quarter of the Chowkidar of the clinic and no post operative care was provided and when he drew the appellant's attention to his plight he gave him a prescription with the direction to see him.After 20 days. However, when he met him after the stipulated period he again charged the consultation fee and after checking the eye expressed his inability to eliminate the ailment and advised him to use the prescribed medicine for one month. He accordingly went back to his village but the condition of his eye started deteriorating and when the pain and agony assumed appalling proportions and he lost vision of the operated eye he went to Abbottabad where an Eye Specialist operated upon his eye and removed the lens which was not
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properly implanted. He remained admitted in the hospital for 19 days and suffered immense physical and mental torture. That it was on account of the negligence, carelessness and wrong treatment of the appellant that he had suffered physical and mental torture and as such was entitled to get a sum of Rs,5,50,000 as compensation. 3. The appellant contested the suit on a variety of grounds, both legal as well as factual, and claimed compensatory costs by describing the suit as false and vexatious. On the factual side, it was averred that the appellant was family doctor of the respondent and had operated upon his eye and implanted the IntraOcular Lens with his consent strictly in accordance with the prescribed procedure, utmost care and caution and to his entire satisfaction and advised him to see him after two weeks. That the lens was implanted properly but during the period of convalescence the respondent on his own had put Atropine Eye Drops in. The operated eye and also rubbed it as a result of which the pupil got dilated, the stitches came out and one of the loops of the lens emerged from the eye. As a corrective measure he again operated upon his eye gratiously and replaced the lens and had not only taken the necessary precautions but had also admitted him in a well furnished room. Next day, he inspected his eye and on being satisfied that the operation was successful had asked him to see him after a week but he vanished. 4. The parties were put to trial on the following issues:-- (1) Whether the plaintiff has got a cause of action? (2) Whether suit is incompetent in its present form? (3) Whether suit is based on mala fide, if so, its effect? (4) Whether suit is false and vexatious, if so, defendant is entitled to compensatory costs? (5) Whether first operation on plaintiff's eye was successfully performed with plaintiff's consent? (6) Whether for sheer carelessness at the part of plaintiff, his eye got infected and resulted in dislocation of lens, requiring a second operation? (7) Whether during the second operation neither operative carefulness nor post operative care was observed as possible? (8) Whether defendant's professional conduct with the plaintiff was not proper, lacking an element of ethical responsibility and professional consideration? (9) Whether at Abbottabad the cause of plaintiff's agony was diagnosed as a wrong implant of lens in plaintiff's eye by the defendant? (10) Whether irresponsible attitude and wrong treatment caused mental torture and pecuniary loss to the plaintiff, if so, its effect? (11) Whether the plaintiff is entitled to the decree of damages as claimed? (12) Relief. 5. In order to prove his case, the respondent recorded his own detailed statement and also produced two witnesses Yousaf Ghori, Head Dispenser (P.W.1) and Dr. Muhammad Aftab, Civil Hospital, Abbottabad (P.W.2). The former deposed that in connection with the treatment of his eye the respondent had remained admitted in the Civil Hospital, Abbottabad from 28-4-1991 to 16-5- 1991. He also produced the original registers and placed on record copies of the relevant documents marked as Exh.P.W.1/1 to Exh.P.W.1/3. The latter deposed that the respondent was admitted in Civil Hospital, Abbottabad on 28-4-1991 for treatment of his eye. He was kept under observation and in due course it was decided that the Intra-Ocular Lens implanted in his eye should be removed as it had become dangerous. He accordingly removed the lens on 10-5-1991 through an operation. While answering a Court question he stated that the lens had not been implanted properly. The appellant restricted his evidence to his own statement and did not produce any witness. 6. The learned trial Court decided issues Nos.1, 7, 8, 9, 10 and 11 in favour of the plaintiff and the remaining issues against the defendant and passed the impugned judgment and decree on
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arriving at the conclusions that the first operation conducted by the defendant was not successful, the Intra-Ocular Lens was not properly implanted, the plaintiff had lost an eye on account of the carelessness and negligence of the defendant, the consent of the plaintiff being the outcome of the defendant's advice was immaterial and the plaintiff had suffered an irreparable loss and as such was entitled to get adequate compensation. 7. Assailing the verdict of the learned trial Court the learned counsel for the appellant argued that the allegations made by the respondent were preposterous and the evidence and other material available on record were not enough to support the same and the findings of the learned trial Court were baed on surmises and conjectures which could not"take place of legal proof. He further argued that the respondent must thank himself for the consequences as he had not complied with the instructions given by the appellant, had rubbed the eye and used Atropine Eye Drops on his own. He also argued that the respondent had no locus standi to sue the appellant for damages as the operation was carried out by the latter with his consent. It was further contended that the appellant Was a highly qualified and eminent Eye Specialist and had carried out innumerable identical operations successfully. He further contended that the damages claimed by the respondent were unspecified and in any case in view of the age and status of the respondent the compensation awarded by the learned trial Court was on the higher side. 8. The learned counsel for the respondent supported the impugned judgment by reiterating the reasons recorded therein. 9. Before adverting to the findings of the learned trial Court it will be pertinent to point out that in a suit for damages involving negligence of a medical practitioner the burden of proof is on the plaintiff and if he adduces the requisite evidence then this question would require determination as to whether on that evidence negligence can be reasonably inferred or not. It will also be beneficial to highlight the guidelines laid down in Phillips India Ltd v. Kunju Punnu (AIR 1975 Bombay 306) that in an action for negligence against a doctor as any other action for negligence, the plaintiff has to prove:-- (1) that the defendant, was under a duty to take a reasonable care towards the plaintiff to avoid the damage complained of or not to cause damage to the plaintiff by failure to use reasonable care; (2) that there was a breach of duty on the part of the defendant; and (3) that the breach of duty was the legal cause of the damage complained of and such damage was reasonable forseeable. 10. There is hardly any merit in the contention raised by the learned counsel for the appellant that the findings of the learned trial Court are based on conjectures instead of legal proof. The evidence adduced by the plaintiff makes it manifest that he had squarely discharged the burden of proof placed on him. He not only examined himself but also produced expert evidence to strengthen his case. No doubt his statement travels beyond the plaint slightly and exhibits a tendency of overshooting but even if the extraneous portions are kept aside the allegations made in the plaint standfully established. His viewpoint is further augmented by the admission of the appellant that he had carried out a second operation. This admission goes a long way to suggest that the appellant had not performed the first operation with reasonable care and circumspection. The expert evidence furnished by Dr. Muhammad Aftab (P.W.2), who had performed the third operation, shows that even the second operation was not performed by the appellant with reasonable care because had he done so the Intra-Ocular Lens would have been found properly implanted. The statement of Dr. Muhammad Aftab commands respect in view of his qualifications and status. He is F.R.C.S, F.C. Opthal (ENG), an Eye Specialist and Professor of Opthalmology in the Ayub Medical College, Abbottabad and a Visiting Surgeon, Civil Hospital, Abbottabad. Besides there is nothing in his cross-examination to suggest even remotely that he was swayed by any oblique motive or professional rivalry to make a statement against the appellant. The appellant is also a highly
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qualified Eye-Specialist but it appears that either due to rush of work or some other reason he had not carried out the first operation with reasonable Scare and skill with the result that the corrective action taken by him subsequently had not fructified. The contention that the respondent had himself made the operation unsuccessful by rubbing the affected eye and self-medication is more imaginary than real. The respondent is a mature person, therefore, it does not stand to reason that in defiance of instructions he had rubbed his eye and on his own had used Atropine Eye Drops. In any case the failure of the first operation cannot be attributed to the use of Atropine Eye Drops because after second operation the appellant had himself prescribed the same as is evident from the prescription dated 20th April, 1991 on the reverse side of Exh. P.W.2/1. 11. There is also no force in the contention that the respondent was not entitled to claim or get damages as the operation was conducted with his consent. The respondent had admittedly consented to the operation but his consent is immaterial for the simple reason that the consent of a patient or his relatives does not absolve the doctor from performing his professional duties with care and caution. In this context the principles stated in the following excerpt from Halsbury's Laws of England, which were affirmed by the Supreme Court of India in Dr. Laxman Balkrishna Joshi v. Dr. Taimbak Bapu Godbole (AIR 1969 SC 128) may be reproduced advantageously:-- "22. Negligence; duties owed to patient.--A person who holds himself out ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by, a patient owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give and duty of care in his administration of that treatment. A breach of any these duties will support in action for negligence by the patient." ' The findings of the learned trial Court on issues Nos.1 to 10 are, therefore, upheld. 12. As to compensation by way of damages, we are of the view that the amount awarded by the learned Trial Court is inordinately high and more punitive than compensatory. In a suit for recovery of damages based on personal injury the damages consist of two parts, namely, special damages and general damages. The special damages are required to be pleaded specially and proved and are capable of exact calculation. The general damages are not specially pleaded but are implied and include compensation for pain, torture and sufferig etc. And for want of a yardstick are measured by applying the principle of 'Rule of Thumb' having regard to the circumstances of the case. The respondent has not produced any documentary evidence in regard to the expenses incurred by him on his treatment, therefore, he is entitled to get general damages. Only. He is 73/75 years of age and is leading a normal life. The eye which he has lost was already affected by some disease and its loss has neither impaired the quality of his life nor shortened expectation of his life or entailed any loss of earnings. The factors to be kept in view for assessing the general damages are thus confined to pain, mental torture and shock which the respondent had suffered of the hands of the appellant. In this backdrop compensation to the tune of Rs,50,000 seems adequate. It is scarcely necessary to mention that pain and mental torture cannot be measured in terms of money and the compensation awarded on these counts is just a solarium. The findings of the learned Trial Court on issue No,11 are thus modified accordingly with the result that the plaintiff is entitled for a decree in the sum of. Rs,50,000. ' For the foregoing reasons this appeal is partly accepted and the impugned judgment and decree modified to the extent that the suit is decreed for a sum of Rs,50,000 (fifty thousand) with costs in place of Rs,5,50,000. Appeal partly accepted. 1996 C CC 1447 [Peshawar]
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Before Jalaluddin Akbarji and Qazi Ehsanullah Qureshi, JJ GUJAR KHAN and 3 others---Petitioners versus GOVERNMENT OF N.-W.F.P. And 16 others---Respondents Writ Petition No,225 of 1995, decided on 2nd April, 1996. (a) North-West Frontier Province Management of Protected Forest Rules, 1975--- ----R. 19---Forest Act (XVI of 1927), Ss. 41 & 76-Constitution of Pakistan (1973), Arts. 97 & 199-- Entitlement to 60 per cent. Royalty from sale proceeds of forests exploited by Government or on behalf of Government by any other person, agency or corporation---Local right-holders of specified area claiming such royalty---Federal Government's directive for payment of royalty-- Validity---Forests are residuary subjects out of the ambit of Federal Legislative List and Concurrent Legislative List of the Constitution---Directive of Federal Government (for payment of royalty in question) dated 14-3-1977, was thus, not within the meaning of Art. 97 of the Constitution- Notification dated 14-3-1977 being in conflict with Forest Act or the Rules, could not be acted upon. [p. 1454] A (b) Forest Act (XVI of 1927)--- ----Ss. 41 & 76---North-West Frontier Province Management of Protected Forest Rules, 1975, R. 19--- Constitution of Pakistan (1973), Art. 199---Forests in Provincially Administered Tribal Areas being State property; are controlled by R: 19, North-West Frontier Province Management of Protected Forest Rules, 1975---Payment of royalty to right-holders by Government---Entitlement of local right-holders. Forests in Provincially Administered Tribal Areas are the State property. The commercial exploitation of the forests in PATA are controlled by Rule 19 of the N.-W.F.P. Management of Protected Forest Rules, 1975. The local inhabitants, where the forests are situate, are to be paid the concessions according to order published in the aforementioned Notification dated 15-9-1972. Concession can be paid to the local inhabitants besides 15% of the sale proceeds on "Quomi Contracts". The "royalty" is paid only to the owners of property usually mines etc. Which are exploited by Government or any other agency. Since the forests are the State property, there is no provision of payment of royalty to any person including the so-called local right-holders and it would be a concession to be paid to the local inhabitants who are to be termed as local right- holders. This is a matter which can be negotiated by the Government or any other agency on behalf of the Government with the local inhabitants of the Forests. [p. 1455] B (c) Forest Act (XVI of 1927)--- ----Ss. 41 & 76---North-West Frontier Province Management of Protected Forest Rules, 1975, R. 19--- Constituion of Pakistan (1973), Art. 199---Constitutional petition---Competence---Rights based on contracts---Jurisdiction to determine contractual obligations---Contracts and its legal obligations need not be decided by High Court in its Constitutional jurisdiction, and same can be settled by Courts of ordinary civil jurisdiction after recording evidence in the matter and passing appropriate decrees. [p. 1457] C Anjuman Araian, Bhera v. Abdul Rashid and 5 others PLD 1973 Lah. 500; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 and Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 ref. (d) Forest Act (XVI of 1927)--- ----Ss. 41 & 76---North-West Frontier Province Management of Protected Forest Rules, 1975, R. 19--- Constitution of Pakistan (1973), Art. 199---Constitutional petition---Local right-holders' entitlement for payment of 60 per cent. Royalty from sale proceeds of forests from commercial sales on basis of agreement---Direction issued by High Court in its Constitutional jurisdiction whether efficacious remedy---High Court expressing its concern at the law and order situation in Tribal areas. The Parliament or the Provincial Assembly cannot provide law to Provincially Administered Tribal Areas. The Executive Authority of the Federation and of the Province is seriously challenged in PATA. The
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politicians and other interested influential persons in PATA are more concerned with their own personal gains at the cost of inhabitants of PATA beside drum-beating on religious slogans, unleashing Holy Terror in PATA by self-proclaimed custodians of religious law. In this melee it is doubtful that the writ of this Court in PATA will be efficacious remedy and curb the manifest illegalities perpetuated in PATA. Commercial Sale of the Forest produce in Provincially Administered Tribal Area is grabbed by influentials in Provincially Administered Tribal Areas who can score their own illegal gains in concert with the politicians. The local inhabitants of Provincially Administered Tribal Areas stew in their own juice. The Provincial Government is well advised to act in accordance with the Forest Act (XVI of 1927) and the N.-W.F.P. Management of Protected Forests Rules, 1975 and distribute the sale proceeds amongst the local inhabitants in accordance with the procedure provided in the Forest Act and Rules framed thereunder by suitable amendments in the Rules. [p. 1457] D Abdul Haleem Khan, Shah Sanam Khan and Abdul Latif Afridi for Petitioners. Saifur-Rehman Kiyani, A.-G. And Saadat Hussain, D.A.-G., for Respondents. Date of hearing: 2nd April 1996. JUDGMENT ' JALALUDDIN AKBARJI, J.---Gujar Khan and others in their own capacity and as well as representatives for the persons/local right-holders of residents of Tehsil Kalam, District Swat, petitioners herein, have invoked the Constitutional jurisdiction of this Court (W.P. No,225/95) for appropriate direction to the Provincial Government for payment of 60% royalty from the sale proceeds of the Forests from commercial sales on the basis of agreements dated 4-10-1981 limited for the period of 2 years i,e, from October, 1981 to 30-6-1983 and also on the basis of Notification SOFT (FAD) V-405/77 dated 14-3-1977 (Published Government Gazette, 10th June, 1977). Notice was issued to the Advocate-General, N.-W.F.P. And the respondents 1 and 2 were directed to file comments, who provided the same and challenged the maintainability of the Constitutional petition for not arraying necessary parties and the contract agreement of the year 1981 having expired and the petition in hand filed time-barred under the laws of contract. On facts nothing material was stated but it was insisted that the agreement dated 14-10-1981 was faithfully discharged. The respondents Nos.1 and 2 were probably more satisfied with the comments furnished by the N.-W.F.P. Forest Development Corporation in the connected W.P. No,488 of 1994 which Corporation incidentally is not respondent-party in this petition. ' M/s. Abdul Halim and Shah Sanam Khan, Advocates, for the petitioners vehemently argued that the petitioners and as well the inhabitants or local right-holders of Tehsil Kalam, District Swat, are entitled to 60% royalty from the sale proceeds of the Forests exploited by the Government or on behalf of the Government by any other person, agency or Corporation. Learned counsel in support of their arguments referred to the Working Plan for Atror-Desan Forest (Compartment Atror 1 to 15) of Kalam Forest Division 1985-86 to 1988-89, out of which relevant provisions will be reproduced later on in this judgment, and urged that the Provincial Government should be directed to pay 60% royalty to the local right-holders/persons/inhabitants of Tehsil Kalam, District Swat as the Forests are exploited for commercial purposes by the Provincial Government and on their behalf by other agencies, persons, contractors and officials. Mr. Saifur Rehman Kiyani, learned Advocate-General, N.-W.F.P.. Relied on the arguments advanced by Mr. M. Sardar Khan, Advocate in the connected Writ Petition No,488 of 1994 and added that the Provincial Government owes nothing to the petitioners, this Constitutional petition is not maintainable as contractual obligations, if any, are involved in the case and that the contract has expired by now. Mr. M. Sardar Khan, Advocate, in the connected Writ Petition No,488 of 1994 vehemently contended that the provisions of Order I, Rule 8, C.P.C. Have not been followed strictly as the Code of Civil Procedure (C.P.C.) is applicable to the proceedings in the Constitutional jurisdiction by this Court. The agreements produced by the parties in the connected
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writ petitions are interpolated and it will be very difficult in this Constitutional petition to enter into inquiry about the legitimacy of each person entitled to 60% royalty as claimed in the connected W.P. No,488 of 1994. The sum conclusion of Mr. M. Sardar Khan, Advocate was that these Constitutional petitions should not make this Court an enquiry Court resulting into granting of decree in terms of money to be paid to the petitioners or any other person. The contractual obligations, if any, are to be settled by ordinary Courts of civil jurisdiction after recording evidence in the matter and passing appropriate decrees as it is in substance the sum of money which is claimed in the Constitutional petitions. ' Since the factual and the legal aspect in this writ petition (W.P. No,225 of 1995) and W.P. No,488 of 1994 Mutabar Khan and others v. N.-W.F.P. Forest Development Corporation, Peshawar and others are the same, therefore, judgment is delivered in this petition. ' Qazi Muhammad Anwar, Advocate, for the petitioners in W.P. No,488 of 1994 also vehemently argued on factual aspect of the case and submitted that the Government is not discharging its legal and moral obligation under the contracts and the law, therefore, appropriate directions may be issued to the Provincial Government for implementing and continuing the agreements dated 14-10-1981 and payment of royalty @ 60% to the petitioners local right-holders from the sale proceeds of the Forests exploited by the Government or any other agency, corporation or persons of the forests range in Kalkot and Kalam, District Swat. 2. Before entering into merits of this Constitutional petition, it will be appropriate to refer to the statutes applied in the case. (i) The Governor of the North-West Frontier Province in exercise of his powers under clause (4) of Article 247 of the Constitution of Islamic Republic of Pakistan made Provincially Administered Tribal Areas…
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