Final Order 1

Order Details: Copy of Judgment
Pdf Text: Com. Suit No.520 of 2021 -: 1 :- Judgment
MHCC010043322020
Presented on : 03.10.2020
Registered on : 03.03.2021
Decided on : 27.11.2024
Duration : YY : MM: DD
04 : 01 : 24
Exhibit-26
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 520 OF 2021
(OLD SUMMARY SUIT NO.240 OF 2021)
Jaslok Hospital and Research Centre,
A Public Charitable Trust, registered under the
Provisions of the Bombay Public Trust Act, 1950
and having its registered office at 15, Dr. G,
Deshmukh Marg, Mumbai-400 026.
Through its Sr. General Manager Compliance,
Mr. Anil Gidwani, age 60 years. ... Plaintiff.
V/s.
1. Surayawanshi Pandhari,
Age: 62 years,
having address at A/1/1 U Vaibhav Nagar
Pimpri, Waghere Pune-411017.
2. Punita Pandhari,
Age: 67 year,
having address at A/1/1 U Vaibhav Nagar
Pimpri, Waghere Pune-411017.
3. Dhanesh Pandhari,
Age: not known,
Defendant Nos. 1 to 3 having address at A/1/1
U Vaibhav Nagar Pimpri, Waghere Pune-411017.
And Unit 208/19, good Street, Parramatta NSW
2150, Australia. ... Defendants.
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Com. Suit No.520 of 2021 -: 2 :- Judgment
CORAM: HIS HONOUR JUDGE
SHRI. A. S. KAZI
(COURT ROOM NO.14)
DATE : 27.11.2024.
-: Appearances: -
The Ld. Advocate Jyoti Malde for the plaintiff.
The Ld. Advocate Sandesh Kamble for the defendants.
JUDGMENT
By way of present suit, plaintiff prayed for recovery of sum of
Rs.12,55,846/- together with further interest @ 18% p. a. thereon suit
till payment and /or realization thereof.
The present suit was previously filed as a Summary Suit
No.240 of 2021, later on upon physical verification, suit is converted
into Commercial Suit No.520 of 2021, as per section 2 (a)(c) of the
Commercial Courts Act, 2015.
2) Briefly stated facts of the case are as under: -
The plaintiff is a Public Charitable Trust engaged in providing
healthcare services and operations of a super specialty Hospital, having
its address as mentioned in clause title above.
3) The defendant No.1 is a patient who got admit on 11.03.2020
for the treatment of bladder cancer, kidney biopsy, fistula surgery for
dialysis under the treating doctor Sudhiranjan Das (Nephrologist).
Defendant Nos.2 is wife of defendant No.1 and the defendant No.3 is
son of defendant No.1.
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Com. Suit No.520 of 2021 -: 3 :- Judgment
Case of the Plaintiff:-
4) It is submitted that, during the treatment of defendant
No.1,he was also found to have contracted novel corona virus Covid-19,
which was also treated by the doctors of the plaintiff. During the
treatment defendant No.1 later the wife of defendant No.1 i.e.
defendant No.2, who accompanied with him during his treatment, was
also found to have contracted with the novel corona virus Covid-19
disease, which was treated by the doctors of the plaintiff and later
shifted to Seven Hills Hospital as per BMC guidelines. Later on, on
28.04.2020, the defendant No.1 was discharged from the hospital. The
plaintiff hospital treated under the care of best experts with so many co-
morbidities like diabetes, advanced CKD, with underlying malignancy,
with severe immunosuppressive state. Due to the treatment, the
defendants survived the illness and went home healthy and the
defendant No.2 was discharged as on 17.04.2020. Thereafter, the
plaintiff Hospital raised total bill against the defendant No.1 of
Rs.19,16,848/- and the defendant paid an amount of Rs.6,61,002/-
leaving behind outstanding amount of Rs.12,55,846/-. On 28.04.2020,
the defendant No.3 gave an undertaking to the plaintiff stating to clear
the Covid 19 treatment bills of the defendant No.1 by attaching fixed
deposits of the defendant No.1.
5) It is further submitted that, upon follow up with the defendant
No.3 for the above said outstanding amount several times, the
defendant No.3 tried to avoid the payment of balance outstanding
amount and one of the email of defendant No.3, offered to settle the
balance amount by paying Rs.2 Lakhs only to the plaintiff. However, the
plaintiff’s attempt to recover the dues from defendant No.3 were in
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Com. Suit No.520 of 2021 -: 4 :- Judgment
vain. Thereafter, the plaintiff issued Legal Notice dated 20.06.2020 to
the defendants, called upon them, to repay the said outstanding amount
to the plaintiff. Thereafter, the plaintiff received reply dated 28.06.2020
from the defendants advocate claiming that, “Due to negligence of
Jaslok Hospital, his client contracted Covid 19 while admitted in Jaslok
Hospital for other ailments (treatment of bladder cancer, Kidney biopsy
and Fistula Surgery for Dialysis) and is currently incapacitated and
unable to work. They also came with a case that defendant No.3 under
duress executed the email undertaking dated 28.04.2020, which is null
and void. Hence, they have taken false defence and therefore, the
plaintiff is constrained to file the above suit.
Case of the defendants:-
6) The defendants opposed the suit claim by filling the written
statement at Exh.8. It is admitted that on 11.03.2020, defendant No.1
was admitted to the plaintiff’s hospital for other ailments such as;
treatment of bladder cancer, Kidney biopsy and Fistula Surgery. It is
further admitted that, the defendant No.1 had to undergo biopsy of the
growth which was detected in his gall bladder along-with biopsy of
kidneys. Doctors also decided to remove of the gall bladder of
defendant No.1.
7) It is further contended that, on 12.03.2020, the defendant
No.1 underwent Transurethral Resection of Bladder Tumor (TURBT)
and when the Biopsy of the removed growth was done it was found to
be high grade Carcinoma (Malignant tumor). On 14.03.2020, the
defendant No.1 left Kidney Biopsy was done and he was suggested to
undergo Fistula Surgery for Dialysis which was schedule on 16.03.2020
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Com. Suit No.520 of 2021 -: 5 :- Judgment
8) According to the defendants, on 17.03.2020, the defendant
No.1 supposed to get discharged from the plaintiff’s hospital but the
doctors instructed him to go for whole body CT Scan to check secondary
spread of cancer which was thereafter schedule on 18.03.2020 and for
that purpose he was made to wait in the waiting room. It is alleged that,
with full knowledge about spread of Corona Virus and about the serious
condition of the defendant No.1, the doctors of plaintiff deliberately
neglected his condition and made him wait for five hours along-with
other visiting patients, who were undergoing HR and CT Scan for
Covid-19 test. On 19.03.2020, he complaint of cold and fewer and due
to negligence of the plaintiff’s doctors he contracted Covid 19 and was
shifted to ICU. Similarly, due to their negligence, defendant No.2 also
contracted Covid 19 and was kept in isolation room under observation
and later on shifted to Seven Hills Hospital under government
designated Covid-19 facilities.
9) In short, it is the case of the defendants that, the defendant
Nos. 1 and 2 contracted the Covid-19 due to negligence of the plaintiff’s
doctors. The defendants have already paid Rs.8.20 Lakhs to the
plaintiff. The plaintiff’s hospital thereafter raised the wrong outstanding
amount of Rs.12.55 Lakhs and under duress made defendant No.3 to
sent the email in their favour on 28.04.2020, which is null and void.
Hence, it is submitted that, the suit is not maintainable and prayed for
dismissal of the suit with counter claim to compensation for the
negligence of the plaintiff’s hospital.
10) In view of the rival pleadings of the parties, my Ld.
Predecessor framed the following issues below Exh.10 and after hearing
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Com. Suit No.520 of 2021 -: 6 :- Judgment
both the sides, the same arise for determination before me and I record
my findings thereon for the reasons enumerated hereinafter:-
Sr. No. Issues Findings
1. Does plaintiff prove that an amount
of Rs.12,55,846/- is outstanding
against defendants towards
admission and treatment of
defendant Nos.1 and 2 in the
plaintiff hospital?
In the Affirmative.
2. Do defendants prove that defendant
Nos.1 and 2 contracted with Covid-
19 due to negligence of plaintiff
hospital?
In the Negative.
3. Do Defendants prove that defendant
No.3 gave an email undertaking
dated 27.04.2020 under duress?
In the Negative.
4. Whether plaintiff is entitled to get
suit amount?
In the Affirmative.
5. What Order and Decree? As per Final Order.
REASONS
As to Issues Nos.1 to 4: -
11) In order to prove its case, the plaintiff examined one Sandesh
Changale, Senior Manager, Medical Record as PW-01 below Exh.13.
They further examined Dr. Sachin Nair, Senior Manager, General
Administration and Public Relation as PW-02 below Exh.15. As against
this, defendants examined no witness and filed the pursis at Exh.12 that
they do not intend to examine any witness. Their evidence is discussed
in details below:-
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Com. Suit No.520 of 2021 -: 7 :- Judgment
12) PW-01, Mr. Sandesh Changale deposed below Exh.13.
According to him, the defendant No.1 was admitted in the above
hospital on 11.03.2020 for treatment of Bladder Cancer, Kidney Biopsy,
Fistula Surgery for dialysis under treatment of Dr. Das. During the
treatment he was also found to have contracted with Covid-19 Virus. So
also his wife defendant No.2 who accompanied him contracted Covid-
19.
13) He has further deposed that he used to maintain the MRD
records of the day to day activity in the hospital. He has identified the
discharged summary of defendant Nos. 1 and 2 at Exh.G. He has further
deposed about the fact that the defendant No.1 tested positive for
Covid-19 on 24.03.2020 and that is wife, defendant no. 2 also
contracted the said virus on 26.03.2020 and was treated by the plaintiff
hospital and later on shifted to Seven Hills Hospital as per BMC
guidelines.
14) He is searchingly cross examined on behalf of the defendants.
It is elicited in his cross examination that he used to maintain the record
as per the information provided by the treating doctors and medical
attendance and has no personal knowledge of the medical treatment
given to the defendant Nos.1 and 2. He denied that, the plaintiff’s
hospital was not following the Covid-19 protocol and the defendant
Nos. 1 and 2 contracted Covid-19 due to negligence of the plaintiff’s
hospital. Hence, nothing material is elicited in his cross examination to
deny the fact of treatment of the defendant Nos. 1 and 2 at the
plaintiff’s hospital.
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Com. Suit No.520 of 2021 -: 8 :- Judgment
15) The next witness PW-2 Dr. Sachin Nair deposed below Exh.15.
According to him, he was working as a PRE (Patient Relationship
Executive) during the period from 2019 to 2021 in the above hospital
and was dealing with patient related activities during the said period.
According to him, the defendant No.1 was admitted in the above
hospital on 11.03.2020 for treatment of Bladder Cancer, Kidney Biopsy,
Fistula Surgery for dialysis under treatment of Dr. Das. During the
treatment he was also found to have contracted with Covid-19 Virus. So
also his wife defendant No.2 who accompanied him contracted Covid-
19. Both of them were treated by the doctors of the plaintiff’s hospital.
Later on 26.03.2020, defendant no.2 was shifted to Seven Hills Hospital
as per BMC guidelines and ultimately defendant No.1 was discharged
from the hospital on 28.04.2020 and defendant No.2 was discharged on
17.04.2020.
16) PW-02, Dr. Sachin further deposed that, as per the record, the
total bill outstanding against the defendants was Rs.19,16,848/-out of
which, defendant No.1 paid an amount of Rs.6,61,002/- and the
outstanding amount balance is now Rs.12,55,846/-. He has identified
the said bills collectively at Exh.A.
17) It is has further come in his evidence that, on 28.04.2020,
defendant No.3, who is son of defendant Nos. 1 and 2 gave an email
undertaking to the plaintiff to pay said outstanding amount of the
plaintiff hospital and he also attached the details of fixed deposit lying
in the account of defendant No.1 as per Exh.B. In spite of follow up and
legal notice dated 20.06.2020, defendants failed to repay the
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Com. Suit No.520 of 2021 -: 9 :- Judgment
outstanding amount and made allegations of negligence against the
plaintiff’s hospital. Hence, the above suit is filed.
18) PW-02, Dr. Sachin is cross examined and on the contrary, in his
cross examination it is elicited that defendants were admitted in the
hospital on 11.03.2020. The defendant No.1 was suffering from Gall
Bladder Cancer and he was schedule to be discharged on 17.03.2020.
He admitted that, thereafter, he was advised full body CT Scan and his
discharge was postponed from 17.03.2020 to 19.03.2020. He admitted
that, defendant No.1 was contracted with Covid-19 when he was
admitted in that hospital. He denied that the hospital was not following
guidelines for Covid-19. Therefore, nothing material elicited in his cross
examination to discredit his testimony regarding the treatment given to
defendant Nos. 1 and 2.
19) Now in the background of the above evidence, the admitted
position is that, the defendant No.1 was admitted in the plaintiff’s
hospital on 11.03.2020 for treatment of Bladder Cancer, Kidney Biopsy,
Fistula Surgery for dialysis under treatment of Dr. Das. During the
treatment he was also found to have contracted with Covid-19 Virus. So
also his wife defendant No.2 who accompanied him contracted Covid-
19. Both of them were treated by the doctors of the plaintiff’s hospital.
Not even a single suggestion is given in cross-examination to both the
plaintiff’s witnesses that no such treatment both for Gall Bladder
Cancer, Kidneys and Biopsy was given to defendant No.1. Again not
even single suggestion is given to the witnesses that, no treatment for
Covid-19 was given by the plaintiff’s hospital to defendant Nos. 1 and 2.
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Com. Suit No.520 of 2021 -: 10 :- Judgment
Therefore, the case of the plaintiff about treating the defendant Nos.1
and 2 in their hospital has remained uncontroverted. Again no
searching cross-examination is conducted to show that the charges
levied by the plaintiff’s hospital were in correct or exorbitant. If, some
minute details were elicited in the cross-examination about the actual
room charges and charges for in house treatment and if the witnesses
were contradicted by showing that those charges were unreasonable,
matter would have been different, but nothing material is elicited in
their cross-examination.
20) On the contrary, as deposed by PW-02, the defendant No.2
send the email dated 28.04.2020 to the hospital mentioning as under, “
I am thankful to Jaslok hospital for discharging my Dad, (Pandhari
Suryawanshi) on 28.04.2020. I am grateful to the doctors and nurses in
Jaslok Hospital, specially the doctors in the ICU laid by Dr. Shruti
Tandon who worked so hard to keep my Dad alive and they never gave
up on him during the 36 days time in ICU”. Not only this, but he
undertook to pay the balance amount of Rs.12.55 Lakhs for the Covid-
19 treatment and attached the fixed deposit lying in the defendant
No.1’s account.
21) Now, no suggestions are given to the plaintiff’s witnesses that
the said email was obtained from defendant No.3 under duress and if
such was the case, defendant No.3 would have proceeded in law against
plaintiff and its employees. Moreover, the defendants did not enter the
witness box, though the burden of proving undue influence or duress
lay heavily upon them and so adverse inference needs to be drawn
against them.
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Com. Suit No.520 of 2021 -: 11 :- Judgment
22) Therefore, on a conspectus of the above discussions, it is
proved that an amount of Rs.12,55,846/- is outstanding against the
defendants towards admission and treatment of defendant Nos. 1 and 2
in the plaintiff’s hospital. There is nothing brought on record to show
that, defendant Nos. 1 and 2 contracted Covid-19 due to negligence of
plaintiff’s hospital. As there is no direct evidence to prove the same. So
far as, the undertaking given by defendant No.3 on email on
28.04.2020 is concerned, defendants could not prove any duress
exercise by the plaintiff’s hospital because the said email on the
contrary is a note of thanks to the plaintiff’s hospital and staff for taking
proper care of his parents, who were admitted in the said hospital and it
appreciated the hard work of the staff, nurses and doctors of plaintiff’s
hospital. Further, defendant No.3 could have lodge a complaint with the
police or with the medical council immediately if he was forced to give
the said undertaking and as already discussed above during the cross-
examination of PW-01 and PW-02 not a single suggestions even is given
regarding the duress exercised on defendant No.3. Hence, I answer
issue No.1 and 4 in the Affirmative and issues Nos.2 and 3 in the
negative. Before parting with the case it needs to be mentioned here
that, apart from claiming the principal amount of Rs.12,55,846/-, the
plaintiff has also prayed for interest @ 18% p.a. from the date of
demand notice till realization in full. However, in my opinion, it would
be proper to award interest at the prevailing rate of 7 % p. a. Hence, I
proceed to pass the following order:-
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Com. Suit No.520 of 2021 -: 12 :- Judgment
ORDER
1) Commercial Suit No.520 of 2021 is partly decreed with costs.
2) Defendants do pay jointly and severally an amount of
Rs.12,55,846/- together with interest at the rate of 7 % per annum from
the date of demand notice sent by the plaintiff to the defendants, till its
full realization.
3) Decree be drawn up accordingly.
4) Commercial Suit No.520 of 2021 disposed off accordingly.
(A. S. Kazi)
Addl. Sessions Judge,
City Civil & Sessions Court,
Date: 27.11.2024. Mazgaon, Gr. Mumbai
(C. R. No.14)
Direct Typed On : 27.11.2024.
Signed on : 28.11.2024.
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Com. Suit No.520 of 2021 -: 13 :- Judgment
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 28.11.2024 NAME OF STENOGRAPHER
TIME: 01.40 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri. A. S. Kazi.
(Court Room No.14)
Date of Pronouncement of
JUDGEMENT/ORDER
27.11.2024
JUDGMENT/ORDER signed by P. O.
on
28.11.2024
JUDGEMENT/ORDER uploaded on 28.11.2024
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