Civil Miscellaneous Application No,6432 of 1995 This is an application for a decree on admission filed by the plaintiff in the following circumstances.
According to the plaintiff on 24-11-1993 he met a road accident whereby he sustained some internal injuries in his lower extremity at the level below the knee-joint and was taken to Aga Khan University Medical Centre (defendant No,1) for treatment. He was admitted immediately and operated upon by defendant No,2 and discharged on 30-11-1993. He was, however, advised to visit the Orthopaedic Clinic of the defendant No,1 firstly on 12-12-1993 and thereafter, on 9-1-1994 and directed to take some drugs. The surgery did not provide any relief and he continued to suffer extreme physical pain. He brought this fact to the notice of the defendant No,2 and other staff of the defendant No,1 but did not receive a satisfactory response. Radiological investigations were also carried out at the clinic of the defendant No, 1 on 9-1-1994 and he was wrongly advised that the surgery was satisfactory and he should continue to take the prescribed drugs. However, being unable to obtain any relief from pain and suffering and after having waited for about 2 months the plaintiff consulted another Orthopaedic Surgeon and came to know that fracture of his right tibia bone had not been positioned and unnecessary surgery was performed incompetently and his bone suffered malposition/malalignment which could lead to deformity/disability of the right extremity for the rest of his life. Consequently, another surgery was performed upon him whereupon he was relieved from pain after some time. According to the plaintiff as a result of negligence and lack of professional skill on the part of the defendant led to his disability for a period of about 10 months and he sustained special damages to the extent of Rs,9,00,000 (Rupees nine lacs). He has also claimed general damages for pain and suffering and injury to health as well as disability and loss of business to the extent of Rs,16,00,000 (Rupees sixteen lacs).
2. The defendant filed written statement denying the allegations of negligence or lack of due care of professional incompetency. The medical record of the plaintiff including the Radiological Report, dated 12-1-1994 were also filed; the relevant part of the report reads as under:-- "Fractures involving upper shaft right tibia with malalignment of fragment. Fracture also involving upper shaft fibula."
3. The plaintiff has preferred this application under Order 12, Rule 6, C.P.C. on the ground that admittedly he was examined by the Radiologist of the defendant No,1 on 9-1-1994 (such date having been shown in the report) i,e, after he had been operated upon in the Medical Centre of the defendant No, 1.
According to Mr. Maqbool Baqar learned counsel for the plaintiff it was evident from the above report that it constituted a clear admission to the effect that misalignment of the bone continued to exist even after the operation and as such there was a clear admission on the part of the defendant that the plaintiff was not treated properly and only an unnecessary operation had been carried out. According to him in view of such clear admission the plaintiff's allegation as to negligence stood established. Mr. Liaquat Merchant learned counsel for the defendant on the other hand asserted that while the report had not been disputed by the defendant, the contents thereof did not establish any negligence on the part of the defendant. He pointed out that it was the defendant's case that the bone could not be realigned immediately after the operation and the plaintiff was required to wait for a few months before the bone could unite. Instead the plaintiff decided to undergo another surgery which was unnecessary. He referred to para. 15 of the written statement where the defendants have submitted a details explanation of the treatment given to the plaintiff.
4. Mr. Maqbool Baqar has contended that for the purpose of decree on admission/ under Order 12, Rule 6, C.P.C. an admission may not necessarily be made in the pleadings and even such admission contained in a document whose genuineness is not in dispute can be taken into consideration and form the basis of judgment. In support of this proposition he had relied upon the judgment of Supreme Court in the case of Mian Tajmul Hussain v. State Life Insurance Corporation 1993 SCMR 1193. Indeed there can be no cavil with this proposition and Mr. Merchant also did not dispute this enunciation of law. The fact nevertheless, remains that it is settled law that the admission, to constitute the basis of a judgment or decree, must be unequivocal. I have no hesitation in observing that if Radiologist's Report or any document the contents whereof were binding on the defendant had contained a clear admission of liability judgment in favour of the plaintiff could have been pronounced. However, what is to be seen is whether any clear admission of liability can be inferred from the report.
5. Indeed the existence or the contents of the report have not been disputed by the defendant.
Even in para. 9 of the written statement it appears to have been admitted that:-- "X-Rays revealed that there was no change in the position of the bones compared to other post- operative X-Ray which showed acceptable alignment."
The defendant nevertheless have gone on to contend that the plaintiff was required to wait for some more time for the healing of the fracture and his decision to undergo another surgery was premature. Whether this explanation is plausible or otherwise can only be determined at the trial but the facts remains that by accepting a particular state of affairs to exist at a certain point of time the defendant have not admitted any liability for negligence. In any event the le quantum of damage sustained still requires a proof.
6. Mr. Maqbool Baqar next contended that a finding to the effect that the bone suffered from malalignment on the relevant date may be recorded on the basis of the aforesaid "admission". He stated that Order 12, Rule 6, C.P.C. did not require the Court to finally dispose of the suit and a judgment on admission could also be pronounced in respect of the part of the suit. Apart from the question whether the contents of the Radiologist's Report constitute an admission; while it is true that judgment can be pronounced in respect of such part of the plaintiff's claim which is admitted by the defendant, I am doubtful, whether a finding on an issue upon which the entire suit is based can be treated as part of the claim or can form subject-matter of a judgment under Order 12, Rule 6, C.P.C. In any event a judgment under Order 12, Rule 6, C.P.C. can be pronounced the discretion of the Court. I do not think there is any justification 1. for recording piecemeal findings on the issues between the parties arising in this suit. The document in question can always be exhibited at the trial and it is true worth could be determined at that stage.
7. However, Mr. Liaquat Merchant pointed out that issues have already been settled and Issue No,1 reads as under:-- "(1) Whether due to negligence of the defendant the fracture involving upper shaft right tibia bone suffered, if so to what effect?"
Prima facie it appears that the parties are not at issue on the question whether the bone suffered malalignment but only whether such misalignment was a consequence of the plaintiff's negligence. In view of the above I am of the opinion that the application merits dismissal.
II. Civil Miscellaneous No,1243 of 1996 This is an application on behalf of the defendant praying that the affidavit filed in support of the plaintiff's application under Order 12, Rule 6, C.P.C., be discarded as they constituted arguments and it is not revealed which part of the contents are based on his personal knowledge and what statements were made on the basis of advice and information received from other sources. In the first place I am of the view that the contentions raised are hypertechnical and do not merit any serious consideration for furtherance of the cause of justice. In any event since I have recorded a detail order on the plaintiff's application under Order 12, Rule 6, C.P.C., this application has lost its efficacy. I would, therefore, dismiss the same.
The above are the reasons for the short order, dated 2-9-1997.