IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 AS.No. 447 of 1995() ---------------------------------- OS.234/1991 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT(S): DEFENDANT ----------------------- STATE OF KERALA REP.BY THE SECRETARY , HEALTH DEPARTMENT, TRIVANDRUM. BY GOVERNMENT PLEADER MR.BENNY GERVACIS RESPONDENT(S): PLAINTIFFS & IST DEFENDANT ------------------------- 1. K.SOUMINI AGED 32 YEARS, W/O. CHANDRAN, THADAPARAMBIL HOUSE, AUGUSTINMUZHI. 2. DR. M.B.JUBILEE, PROFESSOR OF OBSTETRICT & GYNAECOLOGY, G.M.COLLEGE, TRICHUR. ADV. SRI.T.M.ABDUL LATIFF, SRI.K.RAMACHANDRAN FOR R2 SRI.K.C.SANKARAN FOR R2 SRI.P.RAMACHANDRAN FOR R2 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.275/1996 IN AS. NO.447/1995 Dismissed 23.01.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S. TO JUDGE tss M.N.KRISHNAN, J ===================== AS No.447 OF 1995 ===================== Dated this the 23rd day of January 2009 JUDGMENT This appeal is preferred by the State of Kerala against the judgment and decree in O.S.No.234 of 1991 of the Sub Court, Kozhikode. It was a suit for realisation of the amount as damages for the medical negligence alleged to be committed by the first defendant in the suit. It is the case of the plaintiff that she had undergone PPS operation, but thereafter she had become pregnant and had given birth to two children and therefore on account of the medical negligence, damage is caused to her. 2. The first defendant Doctor in the suit remained ex parte and the second defendant entered appearance and the court below by virtue of judgment dated 22.12.1993 granted a decree in favour of the plaintiff for a sum of Rs.1 lakh and directed the first defendant to pay Rs.50,000/- and the second defendant to pay Rs.50,000/- as compensation. It is against that decision, the present appeal is preferred. 3. Now it has been brought to my notice that an application for setting aside the ex parte decree as well as an appeal was preferred by the first AS 447/1995 -:2:- defendant against the judgment and decree of the trial court. The said first appeal is pending as A.S.No.669 of 1996. The trial court considered the application for setting aside the ex parte decree against the first defendant and allowed the same. Thereafter by virtue of the judgment dated 20.8.1997 dismissed the suit against the first defendant. The liability of the second defendant Government comes only as vicarious liability for the act of its servant and there cannot be an independent cause of action against the Government for the reason that the negligence attributed is against the first defendant and the court has found that the first defendant is not negligent. Therefore there cannot be a decree against the second defendant alone and therefore the decree against the Government also has to be set aside. If there is any grievance for the party aggrieved by the decision rendered on 20.8.1997, remedies have to be worked out by filing an appeal against that judgment and therefore I hold that the present appeal is to succeed. The appeal is allowed and the judgment and decree against the Government is set aside making it clear that this will not bar the question of deciding the liability, if an appeal is preferred or has been preferred against the judgment rendered by the Sub Judge on 20.8.1997. Parties are directed AS 447/1995 -:3:- to bear their respective costs. M.N.KRISHNAN, JUDGE Cdp/-