IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 AS.No. 888 of 1996() -------------------- OS.259/1988 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT/PLAINTIFF ------------------------------- SAROJINI, AGED 56 YEARS HOUSE WIFE W/O CHERULIVEETTIL RAMAN , KALPARAMBU DESOM POOMANGALAM VILLAGE MUKUNDAPURAM TALUK. BY ADV. SRI.P.K.JOSE RESPONDENTS/RESPONDENTS ---------------------------------------------- 1.K.K.CHACKO, CIVIL SURGEON, TALUK HEAD QUARTERS HOSPITAL IRINJALAKUDA, MUKUNDAPURAM TALUK. 2. DR.ABRAHAM, TALUK HEADQUARTERS HOSPITAL IRINJALAKUDA, MUKUNDAPURAM TALUK. 3. HEALTH SECRETARY OF KERALA STATE TRIVANDRUM. 4. NEW INDIA ASSURANCE COMPANY, HIGH ROAD, THRISSUR. GOVERNMENT PLEADER SRI.T.K.SAJEEV SRI.C.T.JOSEPH, SRI.K.R.GANESH MR.MATHEWS JACOB FOR R2 & R4 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON 21/12/2009 DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 888 of 1996 ---------------------------------------- Dated this the 21st day of December, 2009 JUDGMENT The plaintiff in O.S No. 259/1988 on the file of the Principal Sub court, Irinjalakuda is the appellant. The suit was filed for damages. The trial court held that the plaintiff has not succeeded in substantiating her case that defendants 1 and 2 , who are doctors, were negligent and careless in treating her and that on account of that, damages were sustained by her. On the basis of the said conclusion, the trial court held that defendants 1 and 2 are not liable to pay any damages to the plaintiff. Aggrieved by the judgment and decree passed by the trial court the plaintiff has preferred this appeal. The parties hereinafter are referred to as plaintiff and defendants as arrayed in the suit. 2. The plaintiff is an agricultural labourer. The 1st defendant is a Civil Surgeon of the Government Hospital, Irinjalakuda and the 2nd defendant is the Orthopaedic Surgeon, attached to the same hospital. The 3rd defendant is the Health Secretary of the Kerala State and the 4th defendant is the New India Assurance Company. On 3.9.1982 the plaintiff while on duty as a Head Load Worker, due to fall,sustained a fracture on her left forearm just below the palm. She went to Irinjalakuda Government Hospital where the 1st defendant examined her. It is the plaintiff's case that she told the 1st defendant that since she need a specialist to treat A.S.No. 888 of 1996 -2- her, he need not examine her and further stated that she need be treated only after the 2nd defendant reports for duty. According to the plaintiff, the 1st defendant misrepresenting facts and persuading the plaintiff put plaster on her hand against her will and desire and thus the 1st defendant acted carelessly and therefore the plaintiff suffered excruciating pain. The plaintiff also pleaded that due to severe pain she subsequently approached the 2nd defendant in the same hospital and he was also careless in scrutinising the X-ray and treating her. The plaintiff complained that after the removal of the plaster she was not able to fold her palm or use it. According to her, after the removal of the plaster her hand was seen in a twisted and stiffed position and there was swelling and pain also. It is her further case that because of the negligent acts of defendants 1 and 2 her hand became useless and she was subject to mental agony, pain and suffered monetary loss. The plaintiff also pleaded that since the 3rd defendant is the employer of the defendants 1 and 2 , the 3rd defendant is also vicariously liable for the negligent acts of defendant 1 and 2. For the above reasons the plaintiff filed the suit for the realisation of Rs.50,000/- from the defendants. 3. The defendants in their respective written statements denied the allegations in the plaint and prayed for the dismissal of the suit. 4. on the plaintiff's side PWs 1 and 2 were examined and Exts A.S.No. 888 of 1996 -3- A1 to A8 were marked. On the defendants side DWs 1 to 4 were examined and no documents were marked. 5. The trial court held that the allegations of the plaintiff on the face of it is improbable. It was observed that it is not probable that a rustic patient like the plaintiff who reports before a Government Hospital for treatment will insists that she need not be treated by the doctor on duty, that it is also improbable that a Government Doctor would have taken the risk of treating such a patient against her will. DWs 1 to 3 after examining Exts A7 and A8 X-ray photos of the fracture sustained to the plaintiff, stated that the fracture sustained by the plaintiff was only a simple fracture called Colle's fracture and that the usual treatment for Colle's fracture is to reduce the fracture by stretching the hand set right the bones and cast the plaster from the bottom of the elbow up to the kunckles. . The trial court also had taken into consideration the testimonies of DWs 1 to 3 to the effect that if the plaintiff did not do the necessary finger exercise certainly her fingers, elbow and shoulder would become stiff. According to defendants 1 and 2 there is no reason for her complaint. The oral evidence of PW 1 supported by PW2 who is a lady accompanied the plaintiff to the hospital, is not sufficient enough to come to the conclusion that DWs 1 and 2 had treated the plaintiff carelessly and due to the careless and reckless treatment the plaintiff had suffered A.S.No. 888 of 1996 -4- damages. There is no positive proof nor the plaintiff cared to examine any expert to substantiate her case. Resultantly, the trial court held that the plaintiff has not succeeded in substantiating her case that defendants 1 and 2 were negligent and careless in treating her and on account of the said treatment she sustained damages. I find that , in the circumstances, no sustainable grounds are made out to interfere with the judgment and decree passed by the trial court. In the result, the appeal fails and accordingly dismissed. The judgment and decree passed by the trial court are confirmed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S.No. 888 of 1996 ---------------------------- JUDGMENT 21st December, 2009