Important judgments regarding hospital record relevant for deciding Criminal,MACP and Session trial

 

1) Whether hospital records fall within Section 92 of Indian Evidence Act?

Since hospital records are neither conclusive of rights nor are instruments as between parties, this Court is of the opinion that the argument that PW 19's oral evidence contradicts hospital records, thus violating Section 92 is untenable.

 Thus, this Court is of the opinion that the question of whether the plaintiff dived or jumped cannot be gone into in this appeal, since it was not pleaded in the written statement. The question of whether the oral evidence contradicts hospital records, regarding Susan having allegedly "dived", and thus violating Section 92 of the Evidence Act consequently need not be answered. In any event, it is found that hospital records, not being documents that are dispositive of any rights, do not fall within Section 92 of the Evidence Act.

Delhi High Court

India Tourism Development ... vs Miss Susan Leigh Beer on 30 May, 2014

Author: S.Ravindra Bhat

Citation;AIR2015(NOC)56 Delhi.

https://www.lawweb.in/2015/02/whether-hospital-records-fall-within.html

2) Whether Court can accept version of events recorded in hospital records without examining Doctors who prepared them?

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Supreme Court: Under which circumstances Motor accident claim tribunal should reject claim for compensation?

Significantly, no post-mortem was conducted. The High Court also noticed the fact that though the accident took place on 12 January 1995, a complaint was lodged only on 15 February 1995. As regards the evidence of the driver, the High Court noted that while at one stage he had stated that the deceased was brought dead, at another place he stated that he was referred to the government hospital for further treatment. The circumstance that no postmortem was conducted is an extremely significant aspect of the case which in our view has justifiably weighed with the High Court. Moreover, the High Court found that if there were three passengers in the tractor, all of whom had known that driver Dharampal had by his negligent act run over Ram Kanwar, the most natural conduct would have been to lodge a complaint. The person who died was the brother of the owner of the tractor. Hence, the fact that a complaint was not lodged for nearly one month is a significant omission in the case. The High Court has also noticed that there were no hospital records to indicate, from the nature of the injuries, that death had occurred due to an accident of the nature alleged. The deceased was conducting a transport business with his brother and was an income tax Assessee. The fact that proper medical records were not available has, in this background, weighed with the High Court. Besides the above aspects, the High Court has found that the assessment of compensation by the Tribunal is perverse.

4. On a careful analysis of the judgment of the High Court and the material on the record, we find no reason to take a view at variance with that of the High Court. The reasoning contained in the award of the Tribunal was perfunctory. The Tribunal failed to notice crucial aspects of the case which have a bearing on the question as to whether the death of Ram Kanwar was caused as a result of the accident caused by the tractor. Each of the circumstances relied upon by the High Court is germane to the ultimate conclusion that a false case was set up to support a claim for compensation. The Appellants have not been able to displace the careful analysis of the evidence by the High Court and the findings which have been arrived at.

False case was set up  supporting compensation claim - No F.I.R. - No postmortem deceased brother of owner - F.I.R. delayed by 30 days (Section 173 of Motor Vehicles Act, 1988) 

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3291-3292 of 2011

Decided On: 19.01.2018

Anil and Ors. Vs. New India Assurance Co. Ltd. and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation:  MANU/SC/0022/2018,AIR 2018 SC 612.

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Whether oral evidence contrary to hospital records can be relied on?

 There is one more reason that was given by the trial court in discarding
the dying declaration and if correct, that would afford strong
circumstance to justify its conclusion. It is the PW-4 who has come as a
shield to protect the appellants. For this reason, we advert to the
statement of Balraj (PW-4), brother of the deceased. He stated that on
the night intervening 19th – 20th September, 1999, Ramesh was with him.
He further deposed that at 4:00 a.m. on 20th September, 1999, they
received the information about the deceased having sustained burn
injuries and he along with Ramesh reached PGIMS, Rohtak where she
was already present. It is on the basis of this statement that the trial
court observed that since Ramesh was with Balraj (PW-4) in his house,
he could not be present at the place of incident when it took place and,
therefore, he is falsely implicated and mentioning of his name
considerably dents the veracity of dying declaration thereby rendering it
questionable. However, we find that in accepting the aforesaid version
of PW-4, the trial court committed a serious mistake. As per the hospital
records, it is Ramesh who had brought the deceased to the hospital and
got her admitted which was even the defence case as well. The trial
court completely overlooked this pertinent aspect. This fact alone is
sufficient to discredit the statement of PW-4 that Ramesh was with him
in his house and both of them had received the information about the
incident and when both of them reached PGIMS, Rohtak, the deceased
was already there. In these circumstances, we entirely agree with the
High Court that PW-4, though brother of the deceased, appears to have
been won over by the appellants.
 Present case appears to have been stung by 'culture of compromise'.
Fortunately, statement of PW-4 in attempting to shield the accused
Ramesh has been proved to be false in view of the records of PGIMS,
Rohtak and, therefore, we held that High Court was right in discarding
his testimony.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2526 OF 2014

RAMESH V STATE OF HARYANA 

Citation: 2017 CRLJ 352

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When court should permit secondary evidence of missing documents?

BH was called upon to produce several documents in the MMC inquiry. BH produced some of the documents and failed to produce the others. Register IV was produced by BH from the period 23rd April 1987 to 29th May 1987. This was for a period prior to the relevant period in this suit and in that inquiry. The same witness had identified the register produced for the earlier period as the register maintained by the operation sister in the OT in the normal course of the conduct of the hospital. The same register No. IV for the later period which was the relevant period was not produced by BH. BH has conducted an inquiry with regard to the missing documents. BH has instead produced the record of the inquiry. BH has produced certain records including the proceedings in the inquiry and the ultimate report of that inquiry as documents marked Exhibits-Z-1 to Z-7. These are the documents of the hospital produced by itself. None has challenged any of these as the documents of the hospital. Amongst these documents is inquiry conducted by three persons appointed as a Board dated 30th April 1990 instituted by the Executive Director, BH dated 11th April 1990 and the report of the inquiry marked as Exhibits-Z-5 and Z-6. The inquiry which was instituted was upon the report that the operation register maintained by the Senior Assistant of CST pertaining to the period between 13th October 1987 and 17th October 1988 was found missing when the search was conducted in April 1990. The report of the inquiry shows that the registers were kept in an open shelf. No security was provided and when the operation is performed the OT staff is busy. All the OT registers were available except for the above period. All these registers were required everyday. In the past there has been no theft of the operation registers or other documents. Only the relevant register was found missing. The exact date of the loss could not be detected. The conclusion of the inquiry drawn by the board was that the relevant operation register pertaining to the period between 13th October 1987 and 17th October 1988 had been removed from the OT of BH by some one who might be in some way connected/interested in the entries made in that register. It is surprising that BH who had conducted the inquiry well prior to the cross examination of P.W.3 could have objected to the production of the copy of the register. It is not for Defendants 1 and 2 to object the production of this document except for the purpose of not bringing the truth on record, if there being any such objection. They are independent Doctors. They are not concerned with the OT registers. It is for the Plaintiffs to rely upon the register and for the hospital to produce it just as is done with the medical record of the original Plaintiff No. 2, Exhibit-H. One of the registers is produced and the other was not. The Xerox copy of one register, admitted as an admitted document has been marked exhibit. The Xerox copy of the other register has been objected to be marked despite the conclusion that it was missing and a further conclusion that it could have been removed by an interested party. It may be mentioned that this is the most fit case for production of document by secondary evidence. The copies of the OT registers initially produced in the MMC and later found to be missing was marked "X-3 (colly)" for identification. It is surprising that one of the registers has been allowed to be marked Exhibit-Q and the other register has been so resisted for being marked in evidence. That is the register which was missing. When admittedly the original document once produced in evidence before any forum has been found missing a copy of the document must be marked on record as secondary evidence. No party has refuted that the copy of the OT register No. IV is an incorrect and fabricated copy. It has only been contended that because the original register has been missing the copy cannot be marked. This is an absurd contention. That would mean that any original document which is required by the Court to be seen for ascertaining the truth of the case can be got missing by any interested party and its copy earlier legitimately taken out and even used in earlier proceedings cannot be marked as document on record. In fact it is for such documents that the law relating to proof of documents by secondary evidence is specifically enacted.

IN THE HIGH COURT OF BOMBAY

Suit No. 1101 of 1989

Decided On: 02.09.2011

Padam Chandra Singhi and Ors.
Vs.
Dr. P.B. Desai and Ors.

Hon'ble Judges/Coram:
R.S. Dalvi, J.

Read full judgment here : click here

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Whether Court can accept version of events recorded in hospital records without examining Doctors who prepared them?

State of Maharashtra v. Damu s/o Gopinath Shinde, AIR 2000 SC 1691 is an authority for the proposition that without examination of such doctors, the Court cannot accept the version of events recorded in the hospital records marked at PW 19/2-19/6. It has been held in Damu (supra) that:

"The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still a party intends to cross-examine such doctors or experts, there can be video conferences or asking questions by arranging telephonic conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time".

No such procedure was adopted in the present case; therefore, the hospital records, though contemporaneous, cannot be given such importance as to prevail over the testimonies of the doctors who deposed in court as experts - especially those who treated the plaintiff, immediately after the accident.

Delhi High Court

India Tourism Development ... vs Miss Susan Leigh Beer on 30 May, 2014

Citation;AIR2015(NOC)56 Delhi

HON'BLE MR. JUSTICE S. RAVINDRA BHAT 
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA 

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Whether hospital records fall within Section 92 of Indian Evidence Act?

 Mr. Tulsi argued that the best evidence available was in the form of the contemporaneous medical records and record of examination of the plaintiff by various doctors. The best evidence being a written record was the most trustworthy and conclusive as to its contents. These documents undermined the plaintiff's claim altogether, as they established that she had dived headlong into the pool and sustained the injuries, which could not be attributed to ITDC's actions or alleged omissions. No evidence to the contrary, especially oral evidence, could be given preference, in view of Section 91 of the Evidence Act.

Since hospital records are neither conclusive of rights nor are instruments as between parties, this Court is of the opinion that the argument that PW 19's oral evidence contradicts hospital records, thus violating Section 92 is untenable.

 Thus, this Court is of the opinion that the question of whether the plaintiff dived or jumped cannot be gone into in this appeal, since it was not pleaded in the written statement. The question of whether the oral evidence contradicts hospital records, regarding Susan having allegedly "dived", and thus violating Section 92 of the Evidence Act consequently need not be answered. In any event, it is found that hospital records, not being documents that are dispositive of any rights, do not fall within Section 92 of the Evidence Act.

Delhi High Court

India Tourism Development ... vs Miss Susan Leigh Beer on 30 May, 2014

Author: S.Ravindra Bhat

Citation;AIR2015(NOC)56 Delhi

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