Ramola Bhuyan v. Max Healthcare Institute Limited & Ors.

1. The instant application under Order VII Rule 11 read with Order I Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been filed on behalf of defendant no. 1 seeking the following reliefs; “a. strike off/delete the name of the Defendant No.1 from the array of parties; b. reject the suit qua the Defendant No.1; c. pass such other or further order(s) as this Hon'ble Court may deem fit and proper in the present case.”

2. Learned counsel appearing on behalf of the applicant/defendant No. 1 submitted that the plaintiff claims that the surgery conducted by defendant No. 2 on 10th April, 2008, was negligent. It is further submitted that the Devki Devi Heart and Vascular Institute is a hospital owned by the Devki Devi Foundation i.e. a society formed under the Societies Registration Act, 1860.

3. It has been submitted that the defendant No. 1 in accordance with Order I Rule 10 of the CPC filed an application bearing I.A. NO. 3536/2012 to have its name removed from the array of parties, whereby, this Court vide order dated 28th February, 2014 determined that the application cannot be considered without recording the evidence.

4. It has been submitted that it was revealed during the plaintiff's testimony that Mr. Jayant Bhuyan had his surgery at the Max Devki Devi Heart and Vascular Institute, which is operated by defendant No. 3 society and since, the aforementioned Max Devki Devi Heart and Vascular Institute is located next to the hospital of the applicant/defendant No. 1, the plaintiff erroneously arrayed the defendant No. 1. It is further submitted that Mr. Jayant Bhuyan's procedure was not performed in defendant No. 1’s hospital. In order to support the said contention the learned counsel for the applicant/defendant placed reliance upon the Max Devki Devi Heart and Vascular Institute's surgery notes and discharge summary. The said fact was revealed in the plaintiff's testimony, when she acknowledged taking her spouse to Max Devki Devi Hospital in Saket, i.e., defendant No. 3.

5. It has been submitted on behalf of the applicant/defendant No. 1 that the oral testimony and the documents forged by the plaintiff demonstrate that the plaintiff's spouse underwent bypass surgery at the Max Devki Devi Heart and Vascular Institute. The materials on which the plaintiff has relied demonstrate conclusively that the Max Devki Devi Heart and Vascular Institute, which is controlled by defendant No. 3, is the operational hospital. It is further submitted that the bypass operation performed by the defendant No. 2 in the hospital run by defendant No. 3 did not include defendant No. 1. Resultantly, the plaintiff's complaints are limited to the hospital where the procedure was done and the treating physician.

6. It is submitted that defendant No. 1 is unrelated to the aforementioned enterprise. There is no basis for the plaintiff to bring a claim against defendant No. 1. The defendant no. 1 is Max Super Speciality Hospital (West Block), a hospital owned and operated by Max Healthcare Institute Ltd, a company that was established in accordance with the Companies Act, 1956 and cannot be held accountable for medical care received at other facilities. Only the treating physicians and the hospital where the therapy was provided may be held liable in a case of medical negligence. Therefore, the defendant No. 1 should be removed from the list of parties since they are not a necessary party to the said suit.

7. Learned counsel appearing on behalf of the applicant/ defendant No. 1 submitted that only the perpetrator can be held accountable in a tort lawsuit. The disagreement over the procedure between the plaintiff and the defendants No. 2 and 3 is unfamiliar territory for the applicant/defendant No. 1.

8. Per Contra, learned counsel appearing on behalf of the nonapplicant/plaintiff submitted that the instant application filed by the applicant/defendant No. 1 is a gross abuse of process of law and is liable to be dismissed at threshold being devoid of any merit. It is further submitted that the identical application filed by the applicant/ defendant No. 1 has already been dismissed by this Court vide order dated 28th February, 2014.

9. It has been submitted on behalf of the non-applicant/plaintiff that the current application was brought by defendant No. 1 on identical grounds, namely that the plaintiff's records demonstrate that defendant No. 3 and not defendant No. 1 treated the spouse of the plaintiff. No change in circumstances has been proved by defendant No. 1 to justify the current application seeking identical reliefs on the same grounds as I.A. No. 3536/2012, which was previously dismissed as stated. This is only an attempt to reopen issues that have previously been settled by this Court.

10. It has been submitted on behalf of the non-applicant/plaintiff that this Court has determined that the parties' testimony must be recorded in order to rule on the issue brought by defendant No. 1, i.e., a trial is required to determine whether defendant No. 1 should be removed from the list of parties. These requirements are not met at this point in the process. Therefore, the instant application contradicts the decisions of this Court and should be rejected.

11. It has been submitted that the order passed by this Court on 28th February, 2014 has not been assailed by the defendant No. 1 in appeal and thus, remained bound by the same. It is further submitted that notwithstanding the fact that the parties' testimony has not yet been recorded, the defendant No. 1 has filed the current application in order to delay the proceedings and reopen a previously resolved issue.

12. It has been submitted on behalf of the non-applicant/ plaintiff that the defendant No. 1 is seeking the rejection of plaint qua the same for the want of cause of action. The said averment cannot come to the rescue of the applicant since, the plaint clearly discloses the cause of action against the defendant No. 1. Learned counsel appearing on behalf of the nonapplicant/ plaintiff seeks to place reliance upon the judgment passed by the Hon’ble Supreme Court titled as Liverpool &London SP v. MV Sea Success reported as (2004) 9 SCC 512 to state that whether or not a complaint reveals a cause of action is an issue of fact. Yet, the answer can only be determined by reading the suit itself. For this reason, the entirety of the allegations in the complaint must be accepted as true. The question is whether a decree would be issued if the allegations included in the suit are accepted as true.

13. It has been submitted that the above mentioned criterion is met in favour of the non-applicant/plaintiff. If all of the allegations in the suit were accepted as true, a judgement against the defendants would undoubtedly be issued. In light of the above, it is argued that a viable cause of action exists against defendant No. 1, and that the relief sought in this application should not be granted.

14. It has been submitted on behalf of the non-applicant/plaintiff that the present application would amount to premature determination of triable issue framed by this Court since this Court has already found that issue raised by defendant No. 1 is a triable issue. It is further submitted that this Court vide order dated 19th January, 2016 held that trial was necessary in order to adjudicate upon the deletion of the defendant No. 1 from the array of parties.

15. Learned counsel appearing on behalf of the non-applicant/ plaintiff submitted that considering that the proceedings are still in the recording of evidence phase, this Court is yet to render a decision on the aforementioned matter. It is further submitted that it is not contested that the defendants' evidence has not been exhausted. Thus, by the current way of the instant application, the defendant No. 1 seeks to postpone the proceedings and evade the legal system. Therefore, the instant application is nothing more than a misguided attempt to seek a decision on a triable matter that has not yet been decided.