1. The defendants Nos.1 and 2 namely Messrs Liaquat National Hospital and Dr. Haider Zaidi filed application under Order VII, rule 11, C.P.C. Seeking rejection of the plaint on the ground that the suit as framed under Fatal Accidents Act, 1855 is without cause of action and not maintainable in law.
2. The reasons given for the rejection of the plaint are that (i) the deceased person was not injured by the wrongful act, neglect or default of the answering defendants, (ii) nor he died in consequence of such injury, (iii) that at the time he died had no right to recover damages from the defendants (had the death not ensued) and (iv) that the beneficiaries have not suffered any pecuniary loss on account of such death. In support of application affidavit has been filed by the Secretary of the defendant No,
1. The plaintiff filed objections to the said application stating that the application is liable to be dismissed. Heard Mr. Abdus Samad learned advocate for the defendants Nos.1 and 2. Mr. Faisal Arab for defendants Nos.3 and 4 and Mr.Nasir Maqsood for plaintiffs. Mr. Abdus Samad learned Advocate for the defendants Nos.1 and 2 argued that the plaint is liable to be rejected as same does not disclose cause of action against the answering defendants and further that the suit is barred by the provision of "Fatal Accidents Act, 1855". The learned Advocate strongly argued that the intention of the Legislature in Fatal Accidents Act is to provide compensation for loss caused to the family by the death of a person if same is caused by "actionable wrong". The learned Advocate mainly relied upon the Preamble of the said Act and argued that from the heading of Preamble the intention of the Legislature is clear that the wrong doer in such cases should be answerable in the damages for the injuries so caused by his "wrongful act" which caused the death to the person entitled to put forward claim under the provision of Fatal Accidents Act. In support of his contention learned Advocate relied upon the case of S. Kamla Devi v. Sunni Central Board of Waqts, U.P., Lucknow AIR 1949 Allahabad page 448). Mr. Faisal Arab appearing for defendants Nos. 3 and 4 namely Messrs Medicare Clinic (Pvt.) Ltd.
3. And Dr. Muhammad Ziaullah Khan also argue that the defendant No,3 provided the required medical aid to the deceased and since Doctor/Surgeon with the required qualification was not available at the time when the deceased was brought to the hospital, on the request of the deceased and his family members, the deceased was allowed to proceed to the hospital of his own choice. He further stated that his clients immediately called the Surgeon to meet the emergency and since the deceased left the hospital before the arrival of the Surgeon there is no negligence on the part of the defendants and as such the suit is not maintainable against the answering defendants Nos.3 and 4. He further argued that the defendants' hospital is a private hospital and defendant is not under any contractual obligation and or legally bound to entertain all the persons that come to the hospital and it is the choice of the defendants' hospital whether to entertain any particular person or not He further argued that since required medical facilities were not available in the hospital after providing necessary medical aid to the deceased before the arrival of the Surgeon the deceased and his family members decided to shift the deceased from the hospital of defendant No,3 to the hospital of their own choice. As such the suit against defendants Nos.3 and 4 is not maintainable. On the other hand Mr.Nasir Maqsood, learned Advocate for the plaintiff, argued that for the purpose of rejecting the plaint the Court is to look into the averments made in the plaint only with the presumption that the allegations made in it are true and if found that a cause of action has been accrued to plaintiff then plaint cannot be rejected under Order VII, Rule 11, C.P.C. He further contended that the suit is maintainable under Fatal Accidents Act, 1855 and if for any reason the suit is not maintainable under said Act but if from the averments of the plaint plaintiffs are entitled for damages for the negligence of the defendants resulting thereof death has been caused, plaint cannot be rejected, Court at the most to meet the justice can ask for necessary amendment in the plaint. I gave my anxious consideration to the respective arguments of the learned counsel as well as I have gone through the plaint filed by the plaintiff and also the written statements filed by the defendants. In order to appreciate the point involved, I would like to give brief facts of the case. The plaintiff No,1 is widow and plaintiffs Nos. 2 and 3 are sons of deceased Dr. Riaz Ahmed who was injured by bullet while some unidentified persons tried to snatch his car. In the plaint it is stated that immediately after incident the brother of the deceased drove the wounded doctor to defendant No,3's hospital which was a minute away from the spot of the incident. The defendant No,4 who was Medical Officer and Incharge of Emergency unit of defendant No,3's hospital first refused to provide the required treatment to deceased who was bleeding but was fully conscious on the ground that same is a medico-legal case and after persistent request and compulsion from the attendants of the deceased only agreed to dress his entry and exit wounds and attach a drip and further directed to remove the said deceased without wasting time to Abbasi Shaheed Hospital and Jinnah Hospital where medical legal cases are taken and treated in Karachi. It is stated in the plaint that after consuming more than fifteen minutes at the defendant No,3 hospital, without required treatment due to the negligence of the defendants Nos. 3 and 4 the said deceased was put in the rear seat of the car as defendants Nos. 3 and 4 refused to provide ambulance facilities, taken to defendant No,1 's hospital. The defendant No,2 Medical Officer of the defendant No,1 utterly refused to provide treatment to the said deceased and said that his hospital does not treat such cases as it is a clear order from the defendant No,1 not to attend medico-legal cases. The defendants Nos. 1 and 2 kept the deceased in the hospital for more than half an hour without providing any medical treat men and even without referring the case to any other hospital.
4. The decease thereafter shifted to National Medical Centre for treatment, where during the surgery he expired due to excessive loss of blood which brought his cardiac arrest. In the plaint, it is also stated that the Health Minister taking notice-of the incident about the tragic death of the deceased due to the refusal of the defendants, constituted Enquiry Committee to conduct a thorough inquiry and submit the report in the matter. The said Committee submitted his report and gave findings that the defendants Nos.2 and 4 has committed criminal negligence resulting in the death of a young doctor and further that the defendants Nos.1 and 3 are also equally resppnsible for the death of deceased. The plaintiffs, the legal heirs of deceased Dr. Riaz Ahmed, filed, a suit for damages against the defendants as they have been deprived of the expected pecuniary benefit.
5. On the basis of these pleadings, I have to see whether plaint can be rejected under Order VII, Rule 11, C.P.C. The Court can reject the plaint if from the averments made in the plaint, it appears that it does not disclose cause of action and or relief claimed was under value and plaintiff on being required by Court to correct the valuation, failed to do so and or where the plaint was insufficiently stamped and plaintiff failed to supply requisite stamp paper within the time fixed by the Court and or where the suit appears from the statement of plaint to be barred by any law. The provision of Order VII, Rule 11, C.P.C. Is not exhaustive of the circumstances in which plaint can be rejected and in appropriate circumstances Court can look into the defence taken by the defendants. The defendants filed the application and seek rejection of the plaint only on the ground that the suit as framed under Fatal Accidents Act is without cause of action and not maintainable in law for the reasons that the deceased person was not injured by the wrongful act, negligence or default of the defendants and as such the defendants' advocate argued that no cause of action accrued to the plaintiff to file the suit and plaint is liable to be rejected. In my humble opinion the term "cause of action" means a brief fact which will be necessary for the plaintiff to prove to succeed and to have a right of judgment. In order to ascertain whether the plaintiff has disclosed cause of action, only the averments made in the plaint can be looked into and from the same it has to be seen that if the said averments were deemed to be correct then the plaintiffs are entitled for a judgment. In appropriate cases if there is any vagueness in the plaint then Court can ask the plaintiff to amend the plaint, instead of rejecting the plaint, as it is desirable to decide the matter on merits rather than to decide the right on technicalities. In the plaint, plaintiff categorically stated that the deceased after he received bullet injury, due to the act of negligence of the defendants in refusing to provide medical aid died. It is yet to be determined whether in fact the defendants have refused to provide required medical aid and or whether the defendants were under any contractual obligations to provide medical aid to the deceased person which can be decided only after recording the evidence. As regards the objections of the learned advocate for the defendants that the suit filed by the plaintiff under Fatal Accidents Act, 1855 is not maintainable as its limits is confined to an action for the injury caused to the deceased and in respect of which he could have maintained an action in case he had survived. I would like to reproduce quotation from "Charlesworth on Negligence" authored by R.A. Percy in its Sixth Edition which reads as under:-- "The Act gave a new cause of action, which was not the same as the deceased would have had if he had been injured and not killed. 'The statute gives to the personal representative a cause of action beyond that which the deceased would have if he had survived, and based on a different principle'. The principle on which it was based was that of giving to the dependents statutory compensation, payable by the wrong doer, in respect of the financial loss they had suffered through the death. Death essentially was and still is, under the Fatal Accidents Act, 1976, the cause of action."
6. Learned counsel has sought to contend that the words "is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof" indicate that the liability was in respect only of such damages as the deceased could have recovered if he had lived but these cannot be read divorced from their context. These words refer only to the "wrongful act, neglect or default" and all that these words in the first paragraph of section 1 of the Fatal Accidents Act mean is that if' the act by which the death is caused is of such a tortuous nature that if the deceased would have been alive, he would have been entitled to recover damages in torts from the wrong doer that the dependants would in the case of his death be able to maintain the action. They do not mean that the wife, husband, parent or child, if any, of the deceased is restricted to claiming only such damages or such loss to which the deceased himself would have been entitled if he had been alive. The cause of action given to the dependants mentioned in the said Act is a statutory right and is totally different from the cause of action vested in the deceased at the time of his death. The Act does not transfer to the said dependants the right of action which the person killed would have had but gives to them a totally new right of action on different principles. This right is, as observed by Lord Black Burn in' the case of Seward v. Vera Cruz 10 App. Case 59:-- "New in its species, new in its quality, new in its principles, in every way new. It is right which has been gives to the beneficiaries as a district and several rights in respect of the same cause of action at the suit of all or anyone of them suing for himself". The words on which reliance has been placed by the learned counsel only mean this that the nature of the cause of action must be such as would have accrued to the deceased himself if he had been alive, i,e, if he had been alive he would have had a valid and enforceable claim, in the circumstances of the case. In other words, if at the time of his death the right of action of the deceased was barred by his contributory negligence, or by virtue of the doctrine of "common employment" or by any special contract, such as passenger's ticket under conditions prohibiting any claim for damages for injury, or by accord and satisfaction, or by the operation of some statutory provision then the persons named in the statute would not also be able to maintain an action. In the case of Mrs. Hajra Begum and 2 others v. Aga Khan University Hospital, Karachi PLD 1995 Karachi page 603. The learned Judge of this Court has held that in all such cases where death caused by negligence, wrongful act or default of medical practitioner during performance of duty which fall within the scope of Fatal Accidents Act, 1855 G and disposed of the objection of the office for rejection of the plaint under Order VII, rule 11, C.P.C. Holding that the suit is maintainable under Fatal Accidents Act. As regards the arguments of Mr. Faisal Arab, learned Advocate for defendants Nos. 3 and 4 although these defendants have not filed application under Order VII, Rule 11, C.P.C. For rejecting the plaint, as a plaint even without an application can be rejected if it appears that same does not H disclose cause of action and or is barred under any law etc. I allow him to address on the maintainability of the suit. The submission of the learned counsel that there is no privity of contract between the parties and that the defendants were not under obligation to treat deceased. I will like to say that I any hospital morally and ethically cannot under any circumstances refuse and or deny to provide emergency medical treatment to a patient, especially if it is of a graver nature as in this case. I strongly adhere to the fact that it is the duty of the hospital administration to make certain that those doctors who are directly or remotely related to in the emergency units/casualty, should be trained in a fashion wherein they can deal any kind of emergency cases. Moreover, it is a cardinal duty of a doctor that irrespective of any condition if any put upon him by the administration, he should go to any length of saving a precious life rather than thinking of legalities and technicalities.
7. Indeed if the hospital is, not well-equipped enough to admit that patient, at the least, it should provide the necessary emergency coverage/treatment, so that the patient can be shifted safely and in time to any other hospital. Time is the most important factor and every second counts when dealing a medical emergency whether a patient with heart attack, road traffic accident or gunshot injury. Time to transport the patient from the accident site to any nearby hospital, time to admit the patient and to provide the emergency treatment and to transfer that patient to another well-equipped hospital for further treatment determines the life and death of that patient. Observations made hereinabove are tentative in nature and will not affect in any manner the disposal of the suit on its merits at the time of final hearing.