TORTS : CONTEMPORARY ISSUES IN INDIA

INDEX

(A) TORTS DEFINATION

(B) TORTS LAW IN INDIA

(C) REFORM OF TORTS LAW IN INDIA

(D) SPECIAL CASE ANALYSIS

(I) Bhopal gas tragedy

(II) Uphaar cinema case
(III) Comparison between the two

(E) OTHER FAMOUS CASES RELATED TO TORS/MEDICAL NEGLIGENCE

(F) CONCLUSION
ABSTRACT AND INTRODUCTION

In This paper I will deal with the torts law in india.I would discuss the current status of Torts law
in India and I will also discuss why we need to reform torts law in India.I would also investigate
certain famous cases related to torts in India. They include both corporate and medical
negligence.

I have divided my paper into 5 sections in the section A I will deal with the Definition of Torts.
In sections B I will deal with torts law in India. In section C I will deal with need for reform of
Torts law in India. In section D I will do an analysis of special torts related cases in India.I n
section E I will deal with other famous tort related cases and in section F I will conclude the
paper
(A)TORTS DEFINATION

A tort (originally from the Old French, meaning "wrong", from medieval Latin tortum, meaning

"wrong", past participle of torquere "to twist") is a wrong that involves a breach of a civil duty
owed to someone else. It is differentiated from criminal wrongdoing which involves a breach of
a duty owed to society, and also does not include breach of contract.

Tort cases may comprise such topics as auto accidents, false

imprisonment, slander and libel, product liability (such as defectively designed consumer
products), and environmental pollution (toxic torts).

A person who suffers legal damage may be able to use tort law to receive damages (usually
monetary compensation) from someone who is responsible or liable for those injuries. Generally
speaking, tort law defines what is a legal injury and what is not. A person may be held liable
(responsible to pay) for another's injury caused by them. Torts can be classified in a number of
different ways, one is to distinguish according to degree of fault, so that there are intentional
torts, negligent torts, and strict liability torts.

For example, Alice throws a ball and accidentally hits Brenda in the eye. Brenda may sue Alice
for losses occasioned by the accident (such as the cost of medical treatment and lost pay due to
missing work), as well as for punitive damages. Whether or not Brenda wins her lawsuit depends
on whether she can prove Alice engaged in tortious conduct. Here, Brenda would try to prove
that Alice had a responsibility not to harm people and failed to exercise the responsibility which
a reasonable person would render in throwing the ball. This is an example of the negligence tort.
One of the main topics within liability for negligence is determining the standard of care—a
legal phrase that means deciding between when conduct is or is not of the kind which may give
rise to a wrong. Put another way, the main issue is whether a person must cope with the loss
suffered on his or her own, or whether the loss will be compensated (paid for) by another party.

In much of the Western world, the measure of tort liability is negligence. If the injured party
cannot prove that the person believed to have caused the injury acted with negligence (lack of
reasonable care), at the very least, tort law will not compensate (pay) the victim. However, tort
law also recognizes intentional (purposeful) torts and strict liability torts, which apply when the
person accused of committing the tort satisfied certain standards of intent (meaning) and/or
performed certain types of conduct.

In tort law, injury is defined broadly. Injury does not just mean a physical injury, such as where
Brenda was struck by a ball. Injuries in tort law reflect any invasion of any number of individual
interests. This includes interests recognized in other areas of law, such as property rights.
Actions for nuisance (annoying or hurting) and trespass (unlawful entering) of land can arise
from interfering with rights in real property. Conversion law and trespass to chattels (personal
property) can protect interference with movable property. Interests in prospective (possible
future) economic advantages from signed agreements can also be injured and become the subject
of tort actions. A number of situations caused by parties in a contractual (written agreement)
relationship may still be tort rather than contract claims, such as breach of duties.

Tort law may also be used to compensate (pay) for injuries to a number of other individual
interests that are not recognized in property or contract law. This includes an interest in freedom
from emotional distress, privacy interests, and reputation. These are protected by a number of
torts such as Intentional infliction of emotional distress, privacy torts, and defamation/slander
(destruction of a reputation). Defamation and privacy torts may, for example, allow a celebrity to
sue a newspaper for publishing an untrue and harmful statement about him. Other protected
interests include freedom of movement, protected by the intentional tort of false imprisonment
which is when you are arrested without cause.

The equivalent of tort in civil law jurisdictions is delict. The law of torts can be categorized as
part of the law of obligations (duties), but unlike voluntarily assumed obligations (such as those
of contract, or trust), the duties imposed by the law of torts apply to those entire subject to the
relevant jurisdiction. To behave in tortious manner is to harm another's rights, body, property or
other rights. One who commits a tortious act is called a tortfeasor.
Torts may be categorized in a number of ways: one such way is to divide them into Negligence
Torts, and Intentional Torts.

The standard action in tort is negligence. The tort of negligence provides a cause of action
leading to damages, or to relief, in each case designed to protect legal rights, including those of
personal safety, property, and, in some cases, intangible economic interests. Negligence actions
include claims coming primarily from car accidents and personal injury accidents of many kinds,
including clinical negligence, workers negligence and so forth. Product liability (warranties and
the like) cases may also be considered negligence actions, but there is frequently a significant
overlay of additional lawful content.

Among intentional torts may be certain torts coming out of the occupation or use of land. One
such is the tort of nuisance, which involves strict liability for a neighbor who interferes with
another's enjoyment of his real property. Trespass allows owners to sue for entrances by a person
(or his structure, for example an overhanging building) on their land. There is a tort of false
imprisonment, and a tort of defamation, where someone makes an unsupportable reason for
arrest or their speech is not represented to be factual which damages the reputation of another.

Workers' compensation laws were a legislative response to the common law torts order placing
limits on the extent to which employees could sue their employers in respect of injuries sustained
during employment.

(B) Torts law in India

There has been an urgent need in India to reform various sectors of law and torts continue to be
ignored, mostly for the reasons of high costs of tort litigation.

Tort is the area of law where in response to a private or civil wrong or injury the courts provide
the remedy of allowing a lawsuit for (usually monetary) damages. Thus, the goal is to restore the
victim to his or her former condition. It has been suggested that the law of torts is developed in
India in a scattered manner, but yet it provides for very effective remedies. Most of Indian tort
law was developed after the British colonization. The continued underdevelopment of Indian tort
law is surprising given the impressive commitment to both compassion and comprehensiveness
embodied in the Indian constitution ratified in 1950 (three years after independence from
Britain).

Tort law is said to be a development of the old maxim ubi jus ibi remedium (Every right needs a
remedy). Are Indians simply possessed of fewer rights in this important sphere? What are we to
make of this underdevelopment regarding a fundamental question in almost all systems of law-
how to make the victim whole, how to provide reparation? The law of torts as administered in
India in modern times is the English law as found suitable to Indian conditions and as modified
by Acts of the Indian Legislature. The law of torts or civil wrongs in India is thus almost wholly
the English law, which is administered as rules of justice, equity and good conscience. In English
law, a tort is a civil wrong, as distinguished from a criminal wrong. The term tort comes from the
Latin tortus, meaning crooked. Some wrongs are the concern of the state, and so the police can
enforce the law on the wrongdoers in court - in a criminal case. The police does not enforce a
tort. It is a civil action taken by one citizen against another, and tried in a court in front of a judge
(only rarely, in certain cases of defamation, with a jury). Certainly, some of the features of the
law of torts are which were developed in England are absent in India.  The Indian courts
therefore, apply those principles to match the situations in India. This means there is an
altercation from the British law to suit the Indian conditions. This fact is quite appreciated
because there is a difference in the societies and systems of Britain and India. Tort law is not
codified in India. This means whenever an exigency arises, a precedent shall be set up to take
care of the peculiar situation. This definitely is a good solution to cope up with civil matters in
the largest democracy on the planet. It has also been noted in the Union Carbide Case, that
Section 9 of the Code of Civil Procedure, which enables a Civil Court to try all suits of a civil
nature, impliedly confers jurisdiction to apply the law of torts as principles of justice, equity and
good conscience. This definitely is, providing a forum to try civil wrongs and making them a
miscellaneous category. This provides the courts with a wide array of jurisdiction. Nuisance,
negligence, etc. are wrongs of a different nature. It is definitely agreed that the simpler torts need
highlighting, but the problem again remains the same. Litigation. To overcome the same there
should be courts specifically set for these small offences or even bigger ones, of civil nature.

The judicial activism which has been present in certain cases like the UCC Case, or the Nilabati
Behera case, are typical examples of development in constitutional tort. This outlook has
profoundly influenced the direction which tort law has taken. The concept of sovereign immunity
has been axed; the vicarious liability of the state concept has been recognized in several cases.
Henceforth, it is very much evident that the magnum of the wrong, the parties involved, and the
gravity of the situation has decided (and continue to do so) the delivering of judgments relating
to torts. This fact shows that the judiciary is in fact, active on setting precedents on tort law.
There has been a scattered array of acts and statutes relating to different kinds of tort, like the
Motor Vehicles Act, 1988 (it was also enacted in late 80s) and Water Pollution Act, Air Pollution
Act etc. The Environment Protection also came up, as late as 1986, as an after effect of the
Bhopal Gas Tragedy.

A land mark case needs mention here, because of the progressive approach of the Indian
judiciary in this regard. A more stringent rule of strict liability than the rule then the rule in
Rylands v. Fletcher was laid down by the Supreme Court in M.C.Mehta v. Union of India. The
court gave the reasoning that the old rule of the common law did not meet the modern techniques
of science and industrial society. There is a need to depart from that rule whereby the industries
ought to be aware of their responsibility, if they are taking benefit out some hazardous business.
This approach of the Supreme Court clearly shows that there is no need for a settled or a model
tort law structure in India. Its so-called branches are now assuming different dimensions. Thus,
there is a present grund norm or a basic covenant, which directs tort law. That grund-norm may
be located in the common law.

A plethora of debates and agitations were unleashed after the Bhopal Gas Tragedy and
environmental legislations came in. The crux remains the there has been an importance given to
the issues of global importance like environment protection, which also finds a place in the law
of tort. Assault, battery etc. are smaller torts and there have been provisions incorporated for
them either in the CPC or the CrPC. Thus, there is no need for a specific legislation dealing with
such small civil wrongs.

Another thing, which needs highlighting at this juncture, is the Consumer Protection Act, in
India. It has assumed a different jurisprudence altogether and has become a different stream in
itself. It also provides for trying of medical negligence cases before a consumer court or forum. It
is a vitalizing point again, that since it has assumed a stature and that of a very high degree, it has
become important. And, to the extent that, a legislation was indeed enacted for the same. This
fact clearly shows that the legislature has provided for effective remedies for civil wrongs, and
thus the law of tort as a sum total for debating purposes only, and it wouldn’t be necessary to
give a lot of importance to it - like codifying it, as some argue.

The law on nuisance does provide for public nuisance and private nuisance. It has to be
continuous to bring up a claim. Private nuisance can be considered when there has been a
substantial nuisance and unreasonable interference. Bringing on claims merely on ordinary
discomforts would definitely be a futile litigation and it would overlook the practicalities of life.
On this ground it would be quite wrong to say that torts are being overlooked. It must be noted
that the court, while interpreting S.133 of the CrpC has indeed allowed private claims as well.
The court did say that the language used by the said section does not necessarily mean public or
private nuisance.

Now, with reference to nuisance, there has been a clear distinction via several cases between,
environmental nuisance and tort nuisance. Now, nuisance has been given, a more criminal tilt to
it. It is evident that the remedy provided in the CrPC or the IPC, has been effectively exhausted.
The classic example being, the Ratlam Municipality Case. When it comes to nuisance and as a
civil wrong (private nuisance to be more specific), remedies available are scarce, and the injured
parties are often disinterested. The tort litigation in India is nowhere as compared with that of the
U.S.A or for that matter, the country which has given India its uncodified tort law, Britain. There
is a proper jury in certain cases of defamation in England, while in India; it is not taken too
seriously. Defamation has been made a criminal act too. The system in England is quite different
from India. They run on precedents. Thus it would be wise to cut down the court fee to
appreciate more legislation, rather than giving much importance to the law of tort.

The development of tort law is evident in the law relating to nuisance as well. Principles, such as
the polluter pays principle are now being accepted through various judicial pronouncements in
India.
There has been a wide acceptance of cases going to the Supreme Court via writ petitions or
public interest litigations. This is a more effective and expeditious remedy available. How often
it has been seen, that the Supreme Court has admitted writ petitions under Article 32 of the
Constitution of India. The courts have awarded compensation in such cases as well. Thus, the
courts have tried to provide an effective forum and method to the citizens. Now, in matters like
environment, in which the claimants problems used to be the prerogative of the State Pollution
Control Board. It was upon the Board to approach the court. The situation has changed now. The
courts have recognized citizen suits in such matters too, thus opening a new way for the common
men to approach the courts. Another reason why the Supreme Court has become a remedy
provider is that, there are very few problems of locus standi. Most of the cases have been
dispensed off in a very tactful and justifiable manner.

  Taking about compensation, Section 357(1) of the CrPC permits a court, while sentencing an
accused to fine, to award compensation out of the fine to any person for loss or injury caused by
the offence when compensation is in the opinion of the court, recoverable by such person in a
civil suit. Further, Section 357 (3) provides that a court can ask the accused (apart from the fine)
to indemnify the victim, by way of compensation. The point is that, the courts and the legal
system does provide for alternative remedies and a wide range of remedies. Then why is there a
need to give importance to tort, as a single entity?

There is also a provision for injunction in the Code of Civil Procedure as well as the Specific
Relief Act. An injunction is an order of a court restraining the commission, repetition, or
continuance of a wrongful act of the defendant. An injunction may be granted to prevent waste,
trespass, or the continuance of nuisance to dwelling or business houses, to right of support, to
right of way, to highways, to ferries, to markets etc. Thus there is a mechanism available to sort
out or look in to trifles as well. These small torts can also be taken care of, by the two Acts
mentioned above. The Specific Relief Act also provides for restitution of property. Thus a person
who is wrongfully disposed of immovable property or of specific movable property is entitled to
recover the immovable or movable property, as the case may be. All these examples exhibit a
wide range of legal issues and their remedies that are indeed available in the procedural (as well
as substantive) laws of this country.

Now, coming to the law relating to defamation in India, there is a diversion from Britain. The
common law rule that slander is not actionable per se has not been followed in India, except in a
few decisions. The reason given is that the rule is not founded on any obvious reason or
principle, and that it is not consonant with justice, equity and good conscience. Both libel and
slender are criminal offences under s. 499 of the Indian Penal Code and both are actionable
without proof of special damage. Thus, there is an option available for defamation in India, to go
for a civil remedy or a criminal one. This again exemplifies the ease with which the judiciary has
molded the different branches of tort law in to the Indian legal system.
(C) NEED FOR REFORMING TORTS LAW IN INDIA

The recent lower court ruling pertaining to the Bhopal gas disaster of 1984 points at the pressing
need to revamp torts law in India. Now tort is that field of the law where, in response to a private
or civil wrong or injury, the courts provide redress and remedy by allowing lawsuits for (usually
monetary)damages.

And the fact of the matter is that while most branches of law, crimes, contracts, property, trusts,
etc, have been codified, there is yet no code for torts in India. In tandem, what’s also necessary is
the economic analysis of liability rules so as to provide for grievance redressal with transparency
and speed.
    
In the field of law and economics, the mavens have indeed been taking a closer look at the
economic model of tort law. A recent paper in a leading international journal is on the issue of
negligence-based liability rules under evidentiary uncertainty, such as when courts ‘make errors
in assessing care’ and precautionary behavior.

The paper revisits the basic rationale f\\\\or liability rules and asks whether and under what
conditions ‘efficient precaution levels’ and safeguards are implemented, never mind imperfect
information about injurer negligence.

The study analyses what tort rules would be practical and implementable, what informational
requirements and evidence about injurer behavior–say questionable factory operations–must be
satisfied and what decision rules courts ought to apply when faced with ‘imperfectly informative
evidence’.

Further, the paper goes on to ask whether the decision rules can be formulated in terms of the
legal concept of ‘standard of proof’, and whether general characteristics of the efficient standard
can be formalized in practice.
    
The paper uses modeling techniques and analysis to show that ‘efficient care’ in bilateral cases
involving injurer and victim can really be obtained with rules that encompass the precautionary
behavior of both parties. What’s posited is that a court decision in favor of either party must be
read as a signal to all that ‘bare compliance’ with due care was the latter’s most likely action.

This implies, says the paper, a form of ‘preponderance of evidence’, which incidentally is the
standard of proof in common law for civil disputes, meaning that a claim is established only if it
appears more ‘likely than not’ to the Bench.
    
It is a related matter that negligence-based liability has been one of the main preoccupations of
the literature on the law of torts.

The reasoning of course is that negligence liability induces efficient care on the part of the
parties concerned, in potential risky activities.

However, another expert view is that negligence based liability generally neglects the ‘causal
contributions’ of the parties involved in an accident. Also, the argument goes, the negligence-
based approach is plain inapplicable or unsatisfactory where there’s multiple causation, or where
the fault is ‘not easy to establish.’
    
And in jurisdictions of tort law where apportionment of liability in is accordance with causal
principles, parties bear accident loss in shares proportional to their contribution to the causation
of accident.

Hence the thesis that causal appointment of liability is consistent with the principle of equity. It’s
pointed out that the causality approach is already being used by some courts in the US.
    
Additionally, in looking at the fine-print of causation-based apportionment of liability, some
scholars have been taking into account not just care and pre-caution levels excised by the
relevant parties, but also attendant ‘activity levels’ read the degree and intensity of operations.

The reasoning is that both care levels as well as activity levels affect the causation of accidents
and mishaps.
    
There are still other norms for appropriating liability in tort laws, for instance a hybrid of the
negligence based rule and the causation approach.

Under such a rule, the solely negligent party does bear the entire accident loss. However, the
mishap loss is shared between the parties when either or both are negligent or both non-
negligent. Abroad, there is much analysis of the relevant liability rules in tort law.

For example, the mavens have shown of late that when care levels and activity levels of the
relevant parties affect the causation of an accident, the causation-based liability does not quite
provide efficient incentives for both sides, to take appropriate preventive action.

The objective ought to be to frame sound tort rules so as to bring about socially optimal liability
awards, without undue loss of time, in the unfortunate event of a mishap.
    
The paper uses lemmas, propositions and algebraic proofs to show that in situations involving
bilateral precaution, efficient care is implemented through negligence-based rules that assign
liability on the basis of the actionable behaviour of both the parties involved.

Such a course of action is deemed ‘efficient’ provided the evidence is ‘sufficiently informative’
and courts use the relevant standard of proof as decision tool.

In rules which involve sharing the loss, for instance the notion of comparative negligence, the
efficient standards of proof would be weaker and both defendant and plaintiff would be found
negligent more often.

In all cases, efficiency requires that a claim be proved only if it appears more likely than not by
‘some margin,’ concludes the paper.
 (D) SPECIAL CASE ANALYSIS

(a) BHOPAL GAS TRAGEDY

(i) WAT REALLY HAPPENED

Around midnight on Sunday, 2 December 1984, while most of India slept, a large number of the
residents of Bhopal, a town in the central Indian state of Madhya Pradesh with a population of
nearly a million, were put to death as methyl isocyanate (MIC), a toxic gas used in the
preparation of pesticides, which had escaped from one of the tanks of a nearby Union Carbide
plant, crept over them. The exact number of people affected by this 'accident' remains unknown,
but three years later the death toll stood, on official count, at 3,500, though other estimates of
people killed outright, or as a consequence of the gas leak, run to as high as 10,000; perhaps as
many as 40,000 people were permanently disabled, maimed, or rendered subject to numerous
grave illnesses, and another 200,000-300,000 found themselves with minor injuries, without
jobs, or impoverished by the death of the only bread-winner in the family. The Indian
government has itself acknowledged that 521,262 persons, well over half of the population of
Bhopal, were "exposed" to the lethal gas. Moving with stealth, the night intruder pounced upon a
hapless people, and took the life out of an ancient

The disaster at Bhopal, which has everywhere become a synonym for industrial catastrophes and
the hazards of 'development', has spawned an enormous literature in which accounts, such as the
work presently under review, of the complex if not nightmarish litigation that ensued occupies a
particular niche. Cassels, a professor of law at the University of Victoria, recounts us for the
tortuous path of litigation that eventually led, on 14 February 1989, to a settlement between the
Government of India and Union Carbide brokered by the Supreme Court, an agreement that
appeared to give the message "that human life in India is cheap" (p. 25). As he points out, news
of the gas leak had barely made its way into print before lawyers swung into action. Union
Carbide, no doubt anticipating litigation, forbid its employees from speaking to the press, and at
once retained prominent Indian attorneys, including Nani Palkhivala, the former Indian
ambassador to the U.S. On December 7th, the well-known American lawyer, Melvin Belli,
characterizing himself as "a good capitalist", filed a $15-billion class action suit in an American
court on behalf of some victims, and two days later John Coale, a Washington attorney, became
the first American lawyer to arrive in India. He got himself hired as the city's lawyer after
meeting with the mayor Bhopal, and immediately recruited local labor in order to gain clients.
Emanating from a country where white men were routinely paid handsome sums of money for
the scalps of Indians (the "other" Indians), American lawyers assiduously began to engage in
bounty-hunting. The "profit motive" had "brought to the doorsteps of the impoverished people of
India some of the finest legal talent in America", acknowledged one American observer (p. 115),
as though to suggest that the people of Bhopal, largely illiterate and poverty-stricken, should
have felt honored indeed blessed at the descent upon their city of a pack of wolves.

The age of mass torts arrived with Bhopal Gas Tragedy unveiling the environmental disasters
with toxic invasions, and unfortunately, it continues. . The multinationals, which entered the
'developing world' as harbingers of profit and gain were in fact, brought the death demon, the
Union Carbide which authored the tragedy thought it could wash off its hands by selling the
abandoned Bhopal plant to Dow Chemicals, even as it emanate the poisonous gases and continue
to cause enormous damage to the environment. It is not known with great certainty the figure of
casualties and injured persons it is not possible to measure up the real damage to the environment
which appear as on today as eternal.
It is shocking that the Dow Chemicals claimed the remainder of the Relief Fund carved out of
the settlement between the Government of India and Union Carbide for cleaning up the
environmentally hazardous pollution emanating from the abandoned unit of the factory at
Bhopal. The balance of the hitherto undistributed compensation has accumulated interest and
grown to Rs. 1,505 crores. (Some $327 million).

Very appropriately, the Supreme Court on 19 July, 2004 ordered the Government of India to
distribute the balance of compensation remaining from Union Carbide's settlement among the
566,876 Bhopal survivors whose claims have been successfully settled.
Survivors whose claims may have been wrongly dismissed or who were underpaid were directed
by the court to file a separate application, and seek compensation from the Government of India.
The average payout will still only amount to $570 per person which, despite Dow-Carbide's now
famous dictum that "$500 is plenty good for an Indian", comes nowhere near meeting the costs
of medical treatment that survivors have already had to fund for themselves, much less
compensating for two decades of illness, loss of livelihood and fear for what new horrors may
emerge in their bodies.
It is a further setback for the Dow-Carbide Corporation and its political accomplices in India,
who are on record as demanding that this money, meant for the relief of the survivors, should be
used to clean up the company's abandoned and polluted factory in Bhopal. Last month, the
Government of India threw its weight behind a court action to force Dow-Carbide to bear the full
costs of cleaning the plant

(II) MOCKERY OF JUSTICE

First of all, the decision attracts severe criticism on one basis that is the ignorance of present
circumstances and later effects of the accident. It is a principle of tort law that while considering
the harm done, all the injuries occurred which are direct result of the harm/act done or if there is
a reasonable nexus between the act done and the injury suffered, then the actual time of
occurring the injury is immaterial. This is to point out here that no note has been taken of the
harm which has furthered with the passage of time, or which has become even more intense and
worse after a period of 25 years, and that is certainly a direct impact of the harm/injury suffered
instantly after the incident. Cases have been reported as in due to the gas-leakage, the persons
suffered eye-injuries resulting in short-sightedness, but the injury furthered during these years
and ended up with the total loss of the eye; total blindness. Therefore, such a later effect has not
been considered.

Furthermore, the compensation has been provided, but on the basis of injuries suffered instantly
after the accident. But, this is what was not considered by the court while pronouncing decision
and awarding compensation. Hence, the damages so provided are not proportionate to the injury
suffered and harm occurred which is definitely a direct result of the act.

Also, it has been continuously alleged that CBI did not present all the evidences and facts before
the concerned court during the proceedings. It has been defended that those were the documents
not produced due to general public interest and national security, however, in my view; no
rational and fair conclusion can be reached if there are no proper facts and evidences produced.
A justice is not something which can be done considering a few relevant facts or a few
“available” facts/evidences, but, something which must not be made unless all the evidences so
collected have been produced. The very basic rules of natural justice consist of evidential
proceedings and concealment of the same results in the violation of natural justice. This is even
worse, that the evidences had been collected and reserved, but just not produced.

Moreover, jurists and legal professionals are of the view that the liberal approach towards Union
Carbide Company adopted by the court while delivering the judgment has a relevance to nation’s
economic policies as well. In order to get multinationals in the country and trade domestically
and internationally, for the furtherance of economic objective sought to be achieved by the
Indian Govt., punishments have been prescribed as less-severe as can be. This is to motivate the
companies enter Indian market and continue trade in India. Ironically, to secure one of the
objectives, another has been brutally violated.

Unfortunately, it seems that the accident, the disaster that took place 25 years ago, the
uncountable deaths which occurred that time, all have lost their gravity, they have lost their
warmness and thus it cannot be felt by those sitting above us known as THE LORDS.(

 The grief stricken victims of Bhopal are outraged - how could the men responsible for the
world's greatest industrial disaster escape so lightly.
They are genuinely shocked as many of them did not understand the full implications of what
India's Supreme Court did to them almost fourteen years ago.

Anyone with a basic knowledge of law could have known, as early as in 1996, that the scales of
justice have been decisively tilted in favor of the accused. One has to ask the intellectual elite,
the moral brigade and the self-congratulating media why this breast beating now.

In 1987, the CBI had charged 12 people with "culpable homicide" under Section 304-II of IPC, a
charge carrying a ten-year jail term. In September 1996, a bench comprising Chief Justice AM
Ahmedi and Justice SB Majumdar quashed these charges and directed the CBI to dilute them to
"death by negligence" under Section 304-A with a maximum of two years jail term. The dice was
cast. The guilty men of Bhopal had virtually won the legal battle in 1996. And now their tactics,
backed up by some the best legal brains in the country, was to prolong the fight for as long as
possible.

Initially nobody knew what had happened in Bhopal. Later the news filtered through, that 40
tonnes of a killer gas, methyl isocynate, had leaked from a poorly maintained tank in the Union
Carbide plant. Initial reports suggested that a disgruntled employee had intentionally done it by
pushing a tap of running water into the methyl isocynate tank. Obviously, this was one of the
many false reports being circulated to shift the blame away from company management.

The final death toll reached up to 25,000 and hundreds of thousands continued to suffer from
breathing and lungs ailments, birth deformities and physical and psychological trauma.

Today, I feel deeply frustrated about the fact that we took 26 years to find the guilty men of
Bhopal disaster. Me and most of my fellow journalists continued to blame the Indian judiciary,
the Indian system, the CBI, the government and many other institutions for this failure.
Whenever uncomfortable questions were raised we gave the clichéd reply that it was a 'systemic
failure'.

And that's my central point. Blaming system or nameless institutions had been a familiar ploy to
shield the guilty. There is always an individual or a group of individuals within an institution
who circumvent the law. Unless we, the media people, identify those individuals and name and
shame those who help the wrong doer, such things will continue to happen.

So we know that that justice Ahmedi and Justice Majumdar did a great favor to Keshub
Mahindra and other Indian bosses of the UCIL. But we would also like to know, how come
Union Carbide boss Warren Anderson managed to abscond from India. He was arrested for a
while by Madhya Pradesh police. But then he was suddenly released on a personal bond of Rs
25,000. He was put on a state government plane and brought to Delhi. He then flew out of India
in a private aeroplane, like a VIP.

The former CBI joint director BR Lal is accusing the Ministry of External Affairs for
pressurizing the CBI not to press for Anderson's extradition. But that's not enough Mr. Lal. We
need to know the name of the MEA official who made such a communication to you. Casting a
shadow on the entire MEA is wrong and even immoral as it denigrates an important institution
and shields the real culprit.

We need to know on whose orders Anderson was released. Who was the minister who should
have stopped him? Also, we would like to know the name of the civil aviation bureaucrat who
allowed Anderson's aero plane to fly out of India.
There are many other uncomfortable questions awaiting proper explanation. In 1989, the VP
Singh government settled the issue with the American Union Carbide by accepting a
compensation of $470 million. Union Carbide and its successor company Dow Chemicals had
since maintained that this final settlement resolved all existing and future claims against the
company. The nation must know the name of the minister who authorized this deal and who gave
the final nod for this figure.

All these years I have never forgotten the forlorn figure of Warren Anderson. If he had a
conscience, he must be having a seriously tortured soul. True that he brought in a dangerous
technology to our country - a crime for which we have been indignantly demanding, for last 26
years, his head on the platter.

All these years we have witnessed numerous posters depicting Anderson as the
man-eater monster from America. We had seen angry mobs burning his effigies and carrying out
his mock executions.

Here I would like to raise the central point of this article - why, in the past 26 years, we had
never heard or seen anything similar about of Keshub Mahindra and his Indian colleagues, who
were responsible for owning as well as administering the Bhopal factory.

On the other hand the former chairman of UCIL had lived and prospered happily. He is now the
chairman of a highly visible company Mahindra and Mahindra Limited. In 2002, the Indian
government wanted to honour him with Padam Bhushan, which he is said to have gracefully
declined, perhaps because of the pending Bhopal case.

One must ask why, compared to Anderson, the outrage against Keshub Mahindra had been so
muted? I see a lot of hypocrisy here. We know we cannot bring back Anderson. So it is easier to
shout against him.

Altaf Ahmed, the then Solicitor General of India, who now lives in Dubai, told the Times of
India that in the 1996 case he argued before the Supreme Court bench that these eight accused
"shared common criminal knowledge about potential danger of escape of the lethal gas - MIC -
both on account of the defective plant which was operated under their control and supervision at
Bhopal and also on account of the operational shortcoming detected by the Varadarajan expert
committee." Clearly Justice Ahmedi was did a great favor to Keshub Mahindra and his co-
accused.
More importantly the media and the moral brigade will have to shed its habit of blaming
nameless institutions. It is morally and ethically wrong to denigrate our entire democratic set up
for the transgressions of the few.

The criminals must be honestly named and shamed. The media must relentlessly follow their
trail to keep public memory alive. That's the only way to channelise public outrage into a just and
sustainable legal battle against the crime and corruption. We cannot afford to run down our own
house.

(B) UPHAAR CINEMA FIRE

The Uphaar cinema in Green Park was built in 1973. On June 13, 1997, it was showing the
movie Border, when a generator caught fire immediately after the intermission. The audience
noticed smoke coming out from the side of the screen, but most people thought it was a "special
effect" device that was part of the movie. By the time they realized that a fire had broken, it was
too late. The majority of those who were trapped inside the hall died in a stampede or as a result
of asphyxiation. Fifty-nine people, who included infants and children, lost their lives and 103
sustained injuries.

The disaster shocked Delhi. The Association of Victims of Uphaar Tragedy (AVUT) was formed
by 30 families whose members had been killed or injured. Said AVUT member Naveen Sahani:
"We were seething with anger. The association became something like a family, because I knew
what was happening inside the other person's mind, and he knew how I was suffering." Sahani
lost his daughter, Tarika, at that time a 21-year-old final year degree student of Jesus and Mary
College. According to Sahani, an advertisement in a newspaper sparked off what evolved into a
movement. "Three or four days after the incident, one of the accused took out an advertisement
saying they were not responsible for the tragedy. This brought us together in outrage," he said.

K.T.S. Tulsi, the lawyer, fought the case for the victims without charging any fees. Members of
the AVUT attended the court hearings spread over 134 days. They organized discussions and
debates in Delhi on issues ranging from environmental protection to governmental accountability
in public affairs.

On April 25, delivering its 192-page judgment, the Delhi High Court awarded a compensation of
about Rs.18 crores to the families of the dead and to the injured. Emphasizing that the tragedy
was an avoidable one, the Division Bench comprising Justices S.K. Mahajan and Mukul Mudgal
held the owners of the building Gopal and Sushil Ansal, the Deputy Commissioner of Police
(Licensing), the Municipal Corporation of Delhi (MCD) and the Delhi Vidyut Board (DVB)
guilty of giving short shrift to safety norms at the cinema. The court said that the Ansals would
bear 55 per cent of the total compensation amount while the remaining 45 per cent would be
shared equally by the DVB, the MCD and the DCP (Licensing). The court said: "It is our
experience that the authorities including the licensing authority, the Delhi Vidyut Board, the
health authorities and the municipal authorities, adopt a casual approach in inspecting the
cinemas and other places visited by large numbers of people."

What caused the smoke to reach the balcony was the flouting of building by-laws by the Ansals
by raising what should have been a three-foot wall surrounding the generator to the ceiling level.
The ground-floor parking area was made an enclosed area with no provision to let out smoke
from the adjoining generator room. When the generator caught fire, burning oil from it came in
contact with parked cars. This led to the burning of at least 27 cars in the jam-packed parking
area, which should not have admitted more than 15 vehicles. Smoke from this area passed
through the stairway into the hall and into the balcony as there was no opening on the ground
floor through which it could escape.

As there were no well-marked exits, members of the audience could not escape in time. Not only
were the gangways narrowed but the right-hand exit door was permanently locked. Emergency
lights were missing. Some of the exit doors were locked. Some people reached for the toilet
windows. Most of those who were asphyxiated died in the balcony foyer, the balcony and the
toilets as they turned into virtual gas chambers.

The Bench imposed punitive damages of Rs.2.5 crores on the Ansals for illegally adding extra
seats, for they had earned extra profits by selling tickets for these seats between 1979 and 1996.

By awarding deterrent compensation, the court set an example. It set a precedent also in terms of
the quantum of compensation awarded. In calculating the amount the court referred to an earlier
case relating to mass deaths caused by fire - Lata Wadhwa vs State of Bihar, Supreme Court
Case 197. This 1989 incident took place in a pandal erected by the Tatas for a meeting in
Jamshedpur to celebrate the 150th birthday of Jamshedji Tata, the founder of the group. The fire
led to the death of 60 people, which included 25 women and 26 children. Lata Wadhwa lost both
her children - a boy and a girl - and her parents in the fire. Her husband was an employee of the
company. In this case, Chief Justice of India Y.V. Chandrachud determined the compensation
amount for the dependents of the deceased as Rs.1,19,58,320.

The Delhi High Court's judgment is significant for two more reasons. First, it has widened the
scope for holding public authorities liable to pay exemplary damages. The MCD was pulled up
for failing to take timely action against illegal constructions. The DVB did not adhere to
prescribed standards in maintaining the transformer, which was faulty. The 1000 kVa
transformer installed in the parking area had not been protected against over-load, earth fault and
excessive gas pressure. The sub-station was ill-maintained. There were loose connections,
damaged cable insulation and direct connection with low-tension switches. The cables were
lying haphazardly on the floor of the sub-station and the trenches had not been covered.

Despite several deviations from the approved arrangement inside the hall, the Delhi police
granted the owner the license to run it. The deviations included permanent closure of an exit door
to make space for 43 additional seats and a reduction of the length of the gangway. There was no
fire-fighting equipment in the hall.

Punishing civic authorities for dereliction of duty is a rare occurrence. By its order, the court
added a new dimension to the law of torts. This, however, does not mean that if there is
negligence in the case of an air crash or railway accident, the victims can sue the government
authorities for that. The Railways and the state-owned airlines already have a well-laid out
compensation code. However, harm caused by the carelessness of civic bodies may attract
penalty.
Secondly, the judgment has established equality before law for the public and private sectors.
Said Tulsi: "I see it as a victory for the victims over a business house and the government. The
ordinary victims were able to take on the might of both."

COMPARISION BETWEEN UPHAR CINEMA CASE AND BHOPAL GAS TRAGEDY.

On 14/15 February 1989, the Government of India had arrived at a settlement with the accused,
Union Carbide Corporation (UCC), USA, for a sum of 470 million US Dollars (effectively only
about Rs.713 Crores at 1989 prices was paid by UCC) on the assumption that the number of gas
victims was only around 105,000, including 3000 dead. (Out of the settlement sum of Rs.713
crores, Rs.113 crores was set-aside for those who had lost property, livestock, etc., and for
specialized medical treatment.) In other words, Rs.600 crores was to be disbursed among the
assumed number of 105,000 gas-victims as compensation at an average of Rs.57,143/- per victim
at the 1989 value of the rupee. However, as per the latest report of the Office of the Welfare
Commissioner, as on 30.12.2008, no less than 574,367 gas victims were actually awarded
compensation, which works out to an average of Rs.12,410/- per victim at the 1989 value of the
rupee despite almost the entire settlement sum of Rs.713 crores at the 1989 value of rupee being
utilized for the purpose. This means that on an average the amount of compensation that each gas
victim has received was only about one-fifth of the amount that he/she should have received as
per the terms of the Bhopal Settlement, which itself was a measly amount.  

Ipso facto, the Union of India has admitted that the total number of gas-victims is more than
574,367, including 469,367 victims who were kept out of the ambit of settlement in 1989. In
theory, about Rs.100,000/- was awarded on an average in 5207 death cases and about
Rs.25,000/- was awarded in 5,69,160 injury cases (including 10,084 acknowledged death cases
where compensation was paid only for injury).  Although, at the intervention of the gas-victims,
compensation amounts were enhanced by 100 per cent in 2004, the real value of the total
amounts that were paid as compensation is less than ONE-FIFTH of the original award in terms
of the value of the Rupee at the time of the Settlement in 1989. The gas-victims were also denied
interest for the period of undue delay in the adjudication and award of compensation – a process
that stretched from 1992 to 2004, i.e., eight to twenty years after the disaster. (In contrast, in the
Delhi Uphaar Cinema Tragedy case of 13 June 1997, on 24 April 2003 victims were awarded
between Rs.15 lakhs and Rs.18 lakhs each in 59 death cases and Rs.1 lakh each in 104 injury
cases plus 9 per cent interest from the date of filing the claims in 1997. Incidentally, in the
Uphaar case too death and injuries were caused due to inhalation of poisonous gases – mostly
carbon monoxide [CO]. Incidentally, CO [Threshold Limit Value (TLV)=25 ppm] is 1250 times
LESS poisonous and reactive than MIC [TLV=0.02 ppm], which caused the Bhopal tragedy!) 
 

(E) OTHER FAMOUS TORT/MEDICAL NEGLIGENCE RELATED CASES IN INDIA

(a) Shri K Venkateshwarlu

VS

The Managing Director

Nagarjuna Hospital

   Appellant was the complainant before the State Commission. Shri Venkateshwarlu approached

Dr U Venkata Ramana’s Hospital Siromani Nursing Home, as he was getting pains and feeling

weakness in both the legs after walking for a few yards. Dr Venkata Ramana who is associated

with Nagarjuna Hospital,Vijayawadaadvised him to approach the said hospital. He was admitted

in the Nagarjuna Hospital on 21.02.1996 and he was advised to undergo MRI Test at Medwin

Hospital, Hyderabad. Accordingly MRI was done on 24.02.1996. With this report the

complainant returned to Nagarjuna Hospital and surgery was conducted on 26.02.1996 by Dr U

Venkata Ramana. After operation there was no improvement in his legs but on the other hand his

two legs have become very weak day by day and it had become impossible for him to walk and

even to attend his natural calls. Nagarjuna Hospital authorities advised the complainant to go to

Vellore Hospital where he underwent several tests and finally it was opined that the complainant

will not recover and is permanently handicapped due to the wrong surgery at the respondent

hospital.

          The appellant alleged that though the operation was not required, a major operation was

done in the respondent hospital, causing permanent disability to him. Dr U Venkata Ramana who

conducted the operation is an Orthosurgeon and not a Neuro-surgeon. As such, there is

deficiency in the services of the respondent hospital. The complainant was not duly or fully

informed of the consequences of the operation and the risks involved therein.
          The complainant submitted that he has not been in a position to discharge his duties for 1

½ years and he brought these facts to the notice of the authorities of the respondent hospital and

requested to compensate him but there was no response.  After waiting patiently for a long

period, the complainant got issued a legal notice to the respondent hospital on 04.12.1997 calling

upon them to pay a compensation of Rs. 23, 61,039. 50 paise. But the respondent got issued a

reply to the notice through their counsel, denying the liability.

          In the State Commission the learned Counsel for the Nagarjuna Hospital raised a
preliminary objection that allegations of negligence against the doctor is not permitted without
impleading him as a party. The State Commission relied upon the judgment of this Commission
in III (2002) CPJ 407 (NC) wherein it was observed that “as a matter of fact any allegation of
incompetence or negligence against a doctor cannot be permitted or looked into without making
the doctor party in the proceedings. Following the said decision we have to up-hold the
preliminary objections raised by the Counsel for the opposite party and it further held that on
this ground alone, the complaint has to fail.”
 
Further the State Commission went into the merits of the case by examining, the
complainant, the Managing Director of the Hospital, the Doctor who performed the
surgery and also an Orthopedic surgeon as expert witness and came to the conclusion that
in the absence of cogent and reliable evidence supporting the contentions of the
complainant. the complaint fails and accordingly, dismissed the complaint.

   The State Commission has agreed with the contentions raised by the Counsel for the
Nagarjuna Hospital that allegation of negligence against a doctor is not permissible
without impleading him as a party on the basis of a decision of the National Commission
in III (2002) CPJ 407 (NC). But this has been over-ruled by the decision of the Supreme
Court in  Smt Savita Garg vs The Director, National Heart Institute. Hence, this
preliminary objection is not valid. Dr U Venkata Ramana who performed the surgery is
sought to be impleaded as a party by him and he has also filed an affidavit in this regard.
Dr U Venkata Ramana was examined before the State Commission. In this case, the
complainant walked to the hospital with his family members but in the discharge
summary it is clearly indicated that after the operation he could not walk. Prior to the
operation on 22.02.1996 the complainant was referred to a neurologist Dr G
Sivanarayana who did not suggest any immediate surgery and on the other
hand, ‘he  advised – report myelogram in view of rapid deteriorating of motor
power’.  Complainant went to Hyderabad to get the MRI test done on 24.02.1996 and on
25.02.1996 he was re-admitted. These details are missing in the case sheet. He submitted
that the operation should have been conducted by a neurosurgeon and not by an
orthopedic surgeon. MRI report did not suggest the necessity of an immediate operation.
 In cases of this type, surgery is not recommended. Traction is one of the options which
should have been tried before going in for operation

But on the other hand, Dr U Venkata Ramana advised  immediate surgery. In the consent

form for operation dated 26.02.1996, there is an interpolation to the effect that “there is
no guarantee of neurological recovery. Patient may get back-ache again. It may be
infected.”/
 
          The State Commission has dismissed the complaint mainly on two grounds :
 
(a)              The surgeon who performed the operation was not made a party ;
(b)             No latches on the part of the doctor and hospital.

FINDINGS :
 
(a).     Whether the allegation of negligence against a doctor is  permitted without impleading
him as a party  ?
 
 The State Commission has held that this is not permitted based on the decision of the
National Commission in III (2002) CPJ 407 NC upheld the preliminary objections raised by the
Nagarjuna Hospital that the allegations against the Dr U Venkata Ramana without making him a
party cannot be sustained.
 
The Supreme Court in its judgment 2004 CTJ 1009 (Supreme Court) (CP) – Smt Savita
Garg vs The Director, National Heart Institute has held that :
 
Therefore, as a result of our above discussion we are of the opinion that summary
dismissal of the original petition by the Commission on the question on non-joinder of
necessary parties was not proper. In case, the complainant fails to substantiate the
allegations, then the complaint will fail. But not on the ground of non-joinder of
necessary party. But at the same time the hospital can discharge the burden by producing
the treating doctor in defense that all due care and caution was taken and despite that
patient died. The hospital/ Institute is not going to suffer on account of nonjoinder of
necessary parties and Commission should have proceeded against hospital. Even
otherwise also the Institute had to produce the concerned treating physician and has to
produce evidence that all care and caution was taken by them or their staff to justify that
there was no negligence involved in the matter. Therefore, nothing turns in not
impleading the treating doctor as a party. Once an allegation is made that the patient was
admitted in a particular hospital and evidence is produced to satisfy that he died because
of lack of proper care and negligence, then the burden lies on the hospital to justify that
there was no negligence on the part of the treating doctor/ or hospital. Therefore, in any
case, the hospital which is in better position to disclose that what care was taken or what
medicine was administered to the patient. It is the duty of the hospital to satisfy that there
was no lack of care or diligence. The hospitals are institutions, people expect better and
 efficient service, if the hospital fails to discharge their duties through their doctors being
employed on job basis or employed on contract basis, it is the hospital which has to
justify and by not impleading a particular doctor will not absolve the hospital of their
responsibilities.

  Accordingly complainant’s case does not fail merely for the reasons that he has not impleaded

the surgeon who had performed the surgery as a necessary party before the State Commission.

          Whether he can be impleaded now as a party under the Consumer Protection Act , Section

24 (A)  states  that :
( c )   Limitation period :
 
(i)           The District Forum, the State Commission or the National Commission shall not admit
a complaint unless it is filed within two years from the date on which the cause of
action has arised.
(ii)              Notwithstanding anything contained in sub-section (1), a complaint may be
entertained after the period specified in sub-section (1), if the complainant satisfies
the District Forum, the State Commission or the National Commission, as the case
may be, that he had sufficient cause for not filing the complaint within such period;
(iii)            Provided that no such complaint shall be entertained unless the National
Commission, the State Commission or the District Forum, as the case may be records
its reasons for condoning such delay.
 

Hence impleading the doctor after two years from the date of occurrence of cause action

is not permissible unless sufficient reasons are given. As explained earlier that non impleading of

the doctor does not absolve the hospital or doctor of medical negligence, if the complaint can be

proved on the basis of the facts and records of the case. Hence this issue has only an academic
relevance.

Whether Surgery was necessary :

          The learned Counsel for the appellant submits that Neurological surgery Vol  1 page 1173

that :
There are three clear cut indications for operative intervention : (i) a massive midline
protrusion, which causes compression of the cauda equine resulting in motor and sensory
paresis and loss of spincter control, required immediate operation : (2) never root
compression associated with quadriceps paresis or foot drop should be operated on early
(interestingly there is a spontaneous extrusion of degenerated disc material. Less often,
the interspace merely seems soft on palpation, but the disc will bulge perceptibly when
the table is straightened. This latter state assumes particular significance in the patient
who has a small canal’. (emphasis supplied)
 

          He submitted that none of these indications were suggestive of operative intervention.

Hence, there was no need to conduct immediate surgery. He further submitted that CW I Dr

Kollam Chandrasekhara who was examined as an expert by the State Commission has clearly

stated that as per record placed before him no surgery was required.

          As against this the learned Counsel for the respondent submitted that the complainant

suffered from ‘cauda equine lesion with sensor level L 2 – S 2 with motor weakness’, as

diagnosed by the Neurosurgeon. Hence, surgery was required. Further he quoted the views of the

expert witness CW I – Dr Kollam Chandrasekhara who stated that :

It is not necessary that urine and passage of stool should stop as a pre-condition for
surgery. I am of the view as per the record placed before him in this case surgery is
required. Orthopaedic surgeon is competent to deal with spine surgery (Laminectomy).
Orthopaedic surgeons are trained in spine surgery. According to him orthopaedic
surgeon without consulting a Neurosurgeon can take a decision for surgery in case of
disc collapse. MRI test is meant for knowing the mechanical compression and the status
of the spinal cord is spinal column.
 
          This deposition was given by Dr Kollam Chandrasekhara, who is the Assistant Professor
in Orthopaedic in Gandhi Hospital, Hyderabad and Post Graduate from AIIMS in Orthopaedic
Surgery with 9 years’ experience. Further this fact has not been rebutted in his cross
examination. Further, it is clear from the opinion given by the neuro physician Dr Sivanarayana
that the complainant was diagnosed and was suffering from ‘Cauda Equine Lesion with Sensor
level L 2 –S 2 with motor weakness’, which is indicative of  the need for surgery.
 
          In the text by Rothman & Simeon ‘The Spine’, Fourth Edition, volume I it is stated that :
 

The significance of this entity is that it must be considered a reason for prompt surgical

intervention because spontaneous neurologic recovery has not been observed. If

incontinence is present, only prompt surgery can offer a chance to lessen the hazards of

possible future urinary drainage problems. Similarly, sudden severe paresis or

paraplegia merits prompts and generous decompression. When the symptoms are florid,

careful preoperative myelography or MRI level identification should be performed on an

emergency basis.
          From the forgoing it is very clear that surgery was required. Complainant has not

examined any expert doctor to support his case and also to prove that evidence given by the

expert Dr Kollam Chandrasekhara(CW 1) is baseless. Further the discharge summary  of CMC

Vellore does not indicate that the surgery performed at Nagarjuna Hospital was faulty.

Observation of Neurosurgeon Dr Sivanarayana in the case records.

          Dr Sivanarayana’s observation of 22.02.196 are relevant : that the complainant had lower

back ache for one year duration and he was walking and getting relief with rest. Gradual

progression of this disability in ambulation since then noted. At present he is able to walk with

two persons support. More rapid deterioration of motor power for 2 day. Increase frequency of

duration with hesitancy is also noted for last two days. He had advised repeat myelogram in view

of rapid deteriorating of motor power. Myelogram was attempted but could not proceed due to

loss of blood, hence, he was advised MRI.

          It cannot be expected that every physician or surgeon is gifted with extra-ordinary skills or

they can perform miracles. What is expected of a doctor is whether the procedure adopted by the

doctor is acceptable to medical profession.

To prove the negligence if any doctor the complainant has to lead adequate evidence with

supportive medical text. This has not been done by the complainant.
 

A careful perusal of the clinical notes of the hospital which runs into several pages

indicate that sincere efforts were made by the hospital authorities and the doctors concerned to

perform the procedure and the State Commission has rightly concluded that the complainant

though suffered a serious setback in life as ill-luck would have it, but at the same time we cannot

throw the blame on RW2 in the absence of cogent and reliable evidence supporting the

contentions of the complainant.

 

          In view of the above analysis we do not consider that the complainant has made out a case

of medical negligence against the doctor of Nagarjuna hospital who performed the surgery.
Accordingly, the appeal is dismissed. In the peculiar facts and circumstances of the case there

shall be no order as to cost.

(F) CONCLUSION

The Tort law in India is still not codified due to which it becomes difficult for the plantiff
to actually prove the injurer liable in most of the cases due to which the corporate or the
medical institutions escapes easily from the unintentional negligence.
The Bhopal Gas Tragedy is the worst example of this weak Torts law in India where still
2 lakh people hint got justice even after 26 years of the incident.The injurer Anderson is
still far away from the reach of Indian courts and judicial system.On the other hand in
some incidents The court provided good justice like the Uphaar cinema case where the
court sent both the ansal brothers to jail for 1 yr thus giving a strong message to the
corporate that there is and there will be the rule of law in this country and if for profit
maximization you neglect the security measures then you would be behind the bars.
I feel that the govt to tighten the torts law so that another Bhopal cannot take place.
BIBLOGRAPHY

Google Wikipedia
Vijay purohit civil law articles
EPW Articles
Vijay rana msn india
Bhavtosh agarwal mockery of justice
Supreme court cases

PROJECT ON CONTEMPORARY
ISSUES ON TORTS IN INDIA
SUBMITTED BY: SAJAL SINGH

ROLL NO: 1035