' IRFAN SAADAT KHAN, J.---This Ind Appeal has been filed against the judgment dated 7-5-2013 passed in Civil Appeal No,68 of 2011 by the Vlth Additional District Judge Karachi South.
2. Briefly stated the facts of the case are that the wife of the appellant Waseela Bibi was admitted in Punjabi Saudagran Hospital, behli Colony, Karachi for treatment. As per the appellant his wife, due to negligence of the respondents Nos.1, 2 and 3, expired on 2-7-2001. Thereafter, he filed a Civil Suit before the Xth Senior Civil Judge Karachi South bearing No,657 of 2002 under the Fatal Accident Act, 1855 for compensation against the respondents. Since the matter was patched up between the appellant and the respondent No,1, therefore, the proceedings against the said respondent were dropped. The learned Judge after hearing the parties, vide her judgment dated 26-1-2011 and decree dated 27-1-2011, found Dr. Qamar Imam, respondent No,2, and Administration of the hospital respondent No,3 to be negligent in looking after the patient, allowed the said suit by granting compensation in the sum of Rs,2,00,000 payable by respondents 2 and 3. Being aggrieved and dissatisfied with the judgment Civil Appeal bearing No,68 of 2011 was filed by the present respondent No,3. The matter proceeded before the learned Judge who, vide her Judgment dated 7-5-2013, found the respondent No,3 not negligent in performing their professional duty, allowed the appeal by setting aside the judgment and decree. It is against this judgment that the present Appeal has been filed.
3. The appellant who is appearing in person, at the very outset, stated that since the matter has been patched up between the appellants and the respondents Nos.1 and 2, he has no claim against these two persons. According to him, the Appellate Court was not justified in observing that the respondent No,3 was not responsible for causing the death of his wife. While elaborating his view point the appellant stated that it was the duty of the respondent No,3 to look after each and every patient admitted in the hospital. He states that though the respondents Nos.1 and 2 mainly were negligent in looking after his wife but respondent No,3 was equally responsible. He states that when the respondent No,3 has no proper facilities in the operation theatre and pre and post operation care the said hospital should not have admitted the patient. He states that the judgment passed by the Appellate Court is a result of misreading and non-reading of evidence, hence the same is liable to be set aside. He further stated that there are at least four inquiry reports from which it is clear that the respondent No,3 was also negligent in causing the death of his wife and it was not considered by the Appellate Court. He has further stated that it is strange to note that there was no ICU and Oxygen facility available in the hospital at that time. He however admits that criminal proceedings were initiated against the respondent No,3 but later on the same were disposed of. He states that since the judgment passed by the Appellate Court suffers from serious legal infirmities, therefore, the same is liable to be vacated.
4. Ms. Mahmooda Suleman, Advocate has appeared on behalf of the respondent No,3 and states that the appellant is a greedy person and has come to the court with unclean hands and with mala fide intention. She states that by blackmailing the respondents Nos.1 and 2, the petitioner had taken substantial amounts from them and now he wants to gain some amount from the respondent No,3 as well. She further stated that from perusal of the record and documents it would be seen that main grievance of the appellant was against the respondents Nos.1 and 2 and against whom he has already withdrawn his claim. She further states that perusal of the judgment of the Appellate Court would reveal that the respondent No,3 was not found guilty and responsible in the criminal proceedings initiated by the appellant. She further stated that no hospital charges and other expenses were paid by the appellant front his pocket but were paid through Zakat fund, hence, his present claim is illegal. She further stated that respondent No,3 is a charitable hospital where the treatment of poor and needy people is being made without any charge. In support of her contentions, the learned counsel has relied upon the following cases:-- 1.1987 CLC 933(Punjab Road Transport Board v. Muhammad Sadiq and another)
2.1995 CLC 196(Karachi Transport Corporation through Principal Officer/Secretary v. Mst. Qaisar Jehan and another)
3.1993 SCMR 848(Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another)
5. I have heard the appellant and the counsel for the respondent No,3 at considerable length, perused the record and decisions relied upon.
6. It is an undeniable position that the claim of compensation is now restricted to the extent of respondent No,3 alone. No doubt the main grievance of the appellant was against the respondents Nos.1 and 2 but the appellant has alleged that the respondent No,3 was also responsible for the negligence causing death of his wife. Legal notice and complaints etc. Were not only sent and made against the respondents Nos.1 and 2 but against respondent No,3 as well. In my view no doubt the doctors examining a patient are primarily responsible to look-after the patients but the administration of the hospital also plays an important role in the care of a patient, as it is the hospital where the patients are given the treatment and the administrator of the hospital is primarily responsible to make necessary arrangements like ICU availability of Oxygen etc. For those patients. Simply shifting the burden upon the doctors cannot absolve the hospital from their responsibilities towards the patients.
7. Perusal of the inquiry reports reveal that the administration of the hospital was also held responsible for negligence as they had failed to appoint enough staff to look after the pre-and post-operation care of the patient. It is also seen from the record that after operation the patient was shifted to the ward rather than to ICU. The report of Pakistan Medical Association clearly reveals that the management of the hospital was also held responsible for the negligence. In the letter written by the Deputy Secretary to the Governor of Sindh, Administration of the hospital was found responsible for negligence. The Hospitals are "vicariously" liable for negligence of their staff also. Hospital may also be negligent where they have failed, to adequately supervise or train their doctors, nurses or where hygiene standard have not been maintained properly. In view of the above facts, I have come to the conclusion that the respondent No,3 was negligent hence they could not be exonerated from what had happened. In my view the respondent No,2 was equally responsible and negligent in not giving due pre and post operation care to the wife of the appellant. It is seen that the Appellate Court has merely relied on the decision given by the Additional District Judge Karachi South while exonerating the respondent No,3 in the criminal case without considering the various inquiry reports furnished by the appellant. Whereas the order of the trial Court is based upon not only considering the criminal proceedings conducted by the appellant but also the various inquiry reports and thereafter the said Court came to the conclusion that the respondent No,3 was also responsible for the negligence. This aspect of considering various enquiry reports, to some extent has totally been ignored by the Appellate Court. Even the learned counsel for the respondent No,3 has failed to controvert the observations given in the inquiry reports wherein burden of responsibility has also been put upon the shoulders of the respondent No,3 for causing the negligence, which resulted in the death of the wife of the appellant.
8. In the matters pertaining to Fatal Accident Act it is to be seen that whether death was caused due to negligence on the part of the deTendantirespondent and if the Court comes to the conclusion that negligence had taken place, it is up-to the said Court to grant the compensation to the plaintiff/appellant. There is no denial to the fact, as is apparent from the four inquiry reports, that the respondent No,3 was negligent in performing its duties.
9. The terms "negligence and liability of hospital" have been defined in Halsbury's Laws of England, Fourth Edition, Volume 30 in paras. 34 and 40 as under;
34. Negligence and duties owed to patients.---A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Whether or not he is a registered medical practitioner, such a person 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, a duty of care in administration of that treatment and a duty care in answering a question put to him by a patient in circumstances in which he knows that the patient intends to rely on his answer. A breach of any of these duties will support an action for negligence by the patient.
40. Liability of hospital authorities.---A hospital authority must use reasonable skill and care in carrying on the hospital and is liable for the acts or omissions of its permanent staff whether they are surgeons, physicians or nurses or fall into any other category, in the course of their employment. In addition it seems that in principle a hospital authority is liable for the acts or omissions of any part-time or visiting consultants and specialists if they are employed as part of its organization for providing treatment, whether they are in law the employees of the hospital authority or not; for in such circumstances the hospital authority undertakes the obligation of giving to any patient who require it treatment of the kind which the consultants and specialists are employed to provide. (Underline is mine for emphasis.)
' In a decision authored by me in the case of Master Abdul Basit and another v. Dr. Saeeda Anwar and another (PLD 2011 Karachi 117), after finding the doctors to be negligent, the compensation was allowed. In that case it was observed as under:-- "Normally the burden is upon the part, who alleged negligence to prove it by producing evidence in support of the allegations, but the said burden shifts to the other, side, if it is proved that required care was not taken while discharging professional duties and responsibilities, which were required to be undertaken".
10. I an not inclined to agree with the counsel of respondent No,3 that since the respondents Nos .1 and 2 have been absolved from the payment of compensation by the appellant hence the respondent No,3 may also be exonerated. This argument of the learned counsel for the respondent No,3 is found to be totally misplaced as this could only be done by the appellants, which they have not. The administration of the hospital, in my view, is also responsible for the negligence of the doctors/staff/employees as it has come on the record that no pre and post operation care was provided by the hospital to the deceased. Neither a doctor/surgeon could simply shift his responsibility upon the administration in case of happening of any event nor the hospital could K lay off its hands by throwing away the responsibility upon the doctors. Perusal of the record and the evidence would amply prove that there was a "composite negligence" by the respondents Nos.1, 2 and 3. In my L view, they all are liable for the commission and omissions on their part.
Hence, in view of what has been stated above, the cause of death appears to be the result of negligence of the respondent No,3 also, who had failed to maintain normal standards of a reasonable skilled and a well-equipped hospital.
11. In view of the facts recorded above, the contention and claim made by the appellant against the administration of the hospital/ respondent No,3 is found to be correct and this IInd Appeal is allowca. Te judgment passed by the appellate court is thus set aside and that of trial court restored, however only to the extent of respondent No,3.