IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 AS.No. 877 of 1996() -------------------- OS.109/1989 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S): APPELLANTS - PLAINTIFFS. -------------- 1. SRAMBIKKAL UNNEERI 2. KESAVAN, S/O. UNNEERI 3. RAGINI, D/O. UNNEERI 4. PREMAN, S/O. UNNEERI 5. JALAJA, D/O. UNNEERI 6. SARIJA, MINOR, AGED 16 YEARS, REP, BY THE 1ST APPELLANT APPELLANTS ARE RESIDING AT KODUVALLY AMSOM, KARUVANPOIL POST, KODUVANMOOZHI, KOZHIKODE TALUK. BY ADV. SRI.M.C.SEN,JAYAPRAKASH SEN, SRI.M.P.SREEKRISHNAN RESPONDENT(S): RESPONDENTS - DEFENDANTS --------------- 1. DR. P. MADHAVI, GOVERNMENT WOMEN AND CHILDREN HOSPITAL, KOTTAPARAMBA, KOZHIKODE. 2. STATE OF KERALA REP. BY DISTRICT COLLECTOR, KOZHIKODE. 3. NEW INDIA ASSURANCE COMPANY, CALICUT. ADV. SRI.P.R.RAMACHANDRA MENON, SRI.K.KRISHNA PILLAI,K.K.SATHISH, SRI.P.R.S.NAIR FOR R1 GOVERNMENT PLEADER FOR R2 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 12/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ A.S. 877 of 1996 ------------------------------------------------------ Dated: JANUARY 12, 2010 JUDGMENT The challenge in this appeal by the defeated plaintiffs is to the decree and judgment of the III Additional Sub Court, Kozhikode in OS 109/1989 dated February 26, 1994 dismissing the suit for damages claimed on account of the death of deceased Pennutty due to the medical negligence of 1st defendant, a medical officer of Government Women and Children Hospital, Kottapparambu, Kozhikode. 2. The case of the appellants/plaintiffs as detailed in the plaint and as testified by PW.1, the 1st appellant/1st plaintiff before the lower court in brief is this:- Deceased Pennutty, aged 42, is the wife of 1st plaintiff and mother of plaintiffs 2 to 6. She was admitted in the Government Women and Children Hospital, Kottapparambu, Kozhikode for MTP with sterilization. At that time she was carrying three months and was healthy. The 1st defendant, the Urban Family Welfare Medical Officer attached to the above said hospital examined Pennutty on January 7, 1982 and advised that she was in a fit condition to undergo the operation. Therefore she was admitted in Ward No.I. The operation was fixed on January 8, 1982 which was postponed to the next day and was performed on that day. Thereafter she was taken to the post- operation ward. She was unconscious. On the next day i.e. on A.S.877/1996 2 January 10, 1982 the 1st defendant did not attend to the deceased. Therefore the 1st plaintiff met the 1st defendant in her house and informed about the deteriorating condition of Pennutty. On January 11, 1982 at about 3.30 p.m. the 1st defendant examined the deceased with another doctor and advised PW.1 to remove her to the Beach Hospital, Calicut. There she was treated for one day. Thereafter she was removed to the Medical College Hospital on January 13, 1982 and she died on the same day due to jaundice. Pennutty died due to the negligence on the part of the 1st defendant in not giving her proper medical care. Therefore the 1st defendant is liable to pay damages to the plaintiffs who are the husband and children of the deceased. The 2nd defendant State, being the employer of the 1st defendant, is vicariously liable. The 3rd defendant being the insurer of the 1st defendant is also liable. Plaintiffs claimed compensation of Rs.1 lakh. 3. The 1st defendant resisted the suit contending that there was no negligence on her part, that the deceased was admitted in the hospital for conducting MTP and the 1st defendant conducted MTP on her on January 9, 1982 and that on January 13, 1982 she died and that the death of Pennutty was not due to the MTP conducted on her. 4. The 2nd defendant State represented by the District Collector, Kozhikode and the 3rd defendant Insurance Company contended that there was no negligence on the part of the 1st defendant, that after MTP the deceased developed jaundice and died, that proper treatment was given, that at the time of conducting MTP there was no symptom A.S.877/1996 3 of jaundice, that she might have developed viral infection and after the stress and strain of surgery the jaundice must have precipitated and that Ex Gratia payment of Rs.5000/- has already been sanctioned. 5. The 1st plaintiff was examined as PW.1 and Exts.A1 to A16 were marked on the side of the plaintiffs. The 1st defendant was examined as DW.1 and Exts.B1 to B3 were marked on the side of the defendants before the trial court. Ext.X1 was also marked. On an appreciation of evidence the lower court found that the plaintiffs have failed to prove that there was any negligence on the part of the 1st defendant and held that the plaintiffs are not entitled to any compensation from the defendants and dismissed the suit. The plaintiffs have now come up in appeal challenging the said decree and judgment of the lower court. 6. The following points arise for consideration:- I. Whether there was any negligence on the part of the 1st defendant in conducting the MTP on deceased Pennutty? II. Whether Pennutty died as a result of the negligence on the part of the 1st defendant? III. What is the quantum of compensation plaintiffs are entitled to? Points 1 to 3 7. It is the admitted case of both parties that the 1st defendant conducted MTP on deceased Pennutty on January 9, 1982 and on A.S.877/1996 4 January 13, 1982 Pennutty died due to jaundice. Counsel for the appellants/plaintiffs argued that if the 1st defendant had conducted pre-operative tests, the onset of jaundice might have been detected and the 1st defendant could have avoided the operation. Counsel for the 1st defendant/1st respondent argued that on January 7, 1982 as well as on January 8, 1982 pre-operative tests were conducted and that at that time no signs of jaundice was detected and that therefore there was no negligence on the part of the 1st defendant. For several reasons I am inclined to hold that there was negligence on the part of the 1st defendant in conducting MTP on deceased Pennutty. No documents were produced to show that the 1st defendant has conducted pre-operative tests on the deceased either on January 7, 1982 or on January 8, 1982. It was only on January 11, 1982 DW.1 found the signs of jaundice in the deceased. Another doctor Sri Sivadas of Beach Hospital has also examined the deceased and found that she was deeply jaundiced. It is clear from the above that if pre- operative test was conducted properly, DW1 could have detected the onset of jaundice in the deceased. It is a clear case of negligence on the part of the 1st defendant. 8. Counsel for the respondents/defendants argued that the plaintiffs have no case that the 1st defendant has not done the operation with reasonable care or in the operation conducted any damage was caused and also postmortem was not conducted and that therefore no negligence can be attributed to the 1st defendant. A.S.877/1996 5 Counsel for the 1st defendant further submitted that it may be a mistake on the part of the 1st defendant in not detecting the onset of jaundice in the deceased prior to the operation which does not amount to negligence on the part of DW.1. I am unable to agree. In the present case the 1st defendant, being a doctor, is under a duty to take reasonable care towards the patient to avoid the damage complained of. Therefore the 1st defendant should have proved by adducing proper evidence that she had conducted pre-operative tests with reasonable care and skill, which she has failed. If she had conducted pre-operative tests with reasonable care, she would have been able to detect the onset of jaundice in the deceased. It cannot be treated as a mistaken diagnosis on the part of the 1st defendant. In my view it is a clear case of negligence on the part of the 1st defendant. That being so, the above argument advanced by the counsel for the defendants cannot be accepted. 9. For all these reasons the finding of the lower court that there was no negligence on the part of the 1st defendant and that therefore the plaintiffs are not entitled to any compensation from the 1st defendant cannot be sustained and is liable to be set aside and I do so. 10. As I have found that there is negligence on the part of the 1st defendant in not conducting the pre-operative tests before conducting MTP on the deceased which resulted in her death, the 1st defendant is liable to pay compensation to the plaintiffs for the damages caused to them on account of the death of the deceased. A.S.877/1996 6 11. The next question for consideration is what is the quantum of compensation the plaintiffs are entitled to. Plaintiffs claimed a compensation of Rs.1 lakh. The deceased was aged 42 at the time of her death, which is not disputed. She was doing all the domestic work and was looking after plaintiffs 2 to 6. The 1st plaintiff has lost the consortium of his wife and plaintiffs 2 to 6 have lost the care and attention of their mother. Even as a coolie she would have earned Rs.10-15 per day, which also the plaintiffs have lost. Having regard to the age of the deceased at the time of her death and other relevant factors mentioned above, the claim of Rs.1 lakh as compensation, in my view, is just and fair compensation, which the 1st defendant is liable to pay. The 2nd defendant State, being the employer of the 1st defendant, is vicariously liable to pay the compensation. The 1st defendant is admittedly insured with the 3rd defendant Insurance Company against third party risks by a valid insurance policy, Ext.B3, to the tune of Rs.2 lakhs. Therefore the 3rd defendant is also liable to pay compensation to the plaintiffs. In the result, the appeal is allowed with costs. The decree and judgment of the lower court dismissing the suit is set aside and reversed and the suit is decreed in favour of the plaintiffs for recovery of Rs.1 lakh from the defendants with interest at the rate of 12% per annum from the date of suit till realisation. The appellants/plaintiffs are entitled to costs throughout. As the 3rd defendant is the insurer of the 1st defendant, the plaintiffs are entitled to execute the decree A.S.877/1996 7 against the 3rd defendant and if they fail to realise the same from the 3rd defendant, they can proceed against defendants 1 and 2. The court fees can be realised from the amounts due to the plaintiffs. P.Q. BARKATH ALI, JUDGE mt/-