IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :13.10.2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.No.147 of 2002 1.V.Ganesh alias Azhagu (died) 2.C.Veerappan 3.Tmt.Indira App. 2 recorded as LR. Of the deceased I appellant App.3 brought on record as LR of the deceased I appellant ... Appellants/Plaintiff Vs. 1.Dr.K.S.Shanmuga Sundaram 2.New India Assurance Company Limited, Rep. By its Branch Manager, Nanjappa Road, Coimbatore. ... Respondents Appeal Suit filed under Section 96 of Civil Procedure Code against the decree and judgment dated 09.03.2001 made in O.S.No.1452 of 1992 on the file of the II Additional Subordinate Judge, Coimbatore. For appellants : Mr.S.Sethuraman For RR 1 : No appearance For RR 2 : Mr.K.Surya Narayanan J U D G M E N T The appellants have preferred this appeal as against the Judgment and Decree dated 09.03.2001 made in O.S.No.1452 of 1992 on the file of the learned II Additional Subordinate Judge, Coimbatore. 2.The trial Court, in its judgment, has directed the respondents 1 and 2/defendants jointly to pay a sum of Rs.1,00,000/- as a compensation to the first appellant/first plaintiff (since deceased) and further directed the said sum of Rs.1,00,000/- should be https://hcservices.ecourts.gov.in/hcservices/ deposited in a Nationalised Bank in the name of the first appellant/first plaintiff and the second appellant/second plaintiff, being the father and guardian of the first appellant/first plaintiff, has been directed to receive interest once in six months for the maintenance expense of the first appellant/first plaintiff and the said deposited amount should not be withdrawn without the permission of the Court and accordingly, rendered a judgment by directing the respondents/defendants to pay the Court fee taking into account of the condition of the first appellant/first plaintiff. 3.The necessary plaint averments of the appellants/plaintiffs are as follows: The first appellant/first plaintiff was suffering from passing loose motion and vomiting during the last week of February 1989 and he was taken to the first respondent/first defendant's Nursing Home in R.S.Puram, Coimbatore, on 28.2.1989 for treatment with a medical complaint of loose motion and vomiting. The first respondent/first defendant examined the first appellant/first plaintiff medically in the presence of second appellant/second plaintiff and prescribed certain drugs. The second appellant/second plaintiff was asked by the first respondent/first defendant to bring the child again to his nursing home on 31.3.1989. As advised by the first respondent/first defendant, the second appellant/second plaintiff took the first appellant/first plaintiff to the nursing home for consultation and treatment. On 31.3.1989 the first appellant/first plaintiff was medically examined by the first respondent/first defendant surgeon, and certain drugs were prescribed and medical advices were given to the second appellant/second plaintiff in regard to the first appellant/ second plaintiff (viz., the child). The second appellant/second plaintiff was asked to bring the first appellant/first plaintiff to the said nursing home again on 03.04.1989 for medical consultation. The second appellant/second plaintiff took the first appellant/ first plaintiff to the nursing home on 03.04.1989 and the first respondent/first defendant referred the first appellant/first plaintiff to the Paediatrician Dr.K.Manonmani, in cowley brown road, R.S.Puram, Coimbatore-2. The first appellant/first plaintiff was examined by the said Dr.K.Manonmani, who diagnosed the complaint as "Intussusception" with bronchitis and referred the first appellant/first plaintiff back to the first respondent/first defendant surgeon for necessary treatment. Dr.K.Manonmani, gave Ampicillin plus Aminophylline intra-venous injection to the first appellant/first plaintiff for wheezy bronchitis. The first appellant/first plaintiff was admitted in the Sengaliappan Nursing Home on 03.04.1989 when the first appellant/first plaintiff was only 6 months old for treatment of medival complaints of (i)loose motion and voimiting, (ii)motion with blood stains, and (iii) fever and cough. The first appellant/first plaintiff was put on intra-venous https://hcservices.ecourts.gov.in/hcservices/ fluids and Ampicillin injection was administered to the first respondent/first defendant surgeon. The first respondent/first defendant advised surgical operation on 04.04.1989. On 04.04.1989, the first respondent /first defendant performed the surgical operation assisted by Dr.Velumani at the surgical Theatre of his nursing home. After the Appendicectomy done by the first respondent/first defendant, the first appellant/first plaintiff child developed respiratory depression, fever and seizures and the first appellant/first plaintiff-child did not keep its neck steady. To the utter disappointment and mental shock of the second appellant/second plaintiff, the first appellant/first plaintiff had lost vision in both the eyes. Not only that but also he was still having complaint of passing loose motion and vomiting. Then the first appellant/first plaintiff was taken to an expert Paediatrician Dr.K.S.Muthukrishnan, Professor of paediatrics, Medical College Hospital, Coimbatore for treatment in regard to the complaint of passing loose motion and vomiting. The first appellant/first plaintiff underwent medical treatment on 26.4.1989, 29.4.1989 and on 03.5.1989. Since the first appellant/first plaintiff-child did not regain vision owing to the irreparable damages done by the first respondent/ first defendant during his performance of surgical operation on the first appellant/first plaintiff. On 04.04.1989 he was taken to expert Opthalmologist Dr.N.Radhakrishnan, Assistant Professor of Opthalmology, Medical College Hospital, Coimbatore, who gave a certified opinion suspecting cortical blindness due to cortical damages following abdominal surgery done in an incompetent and negligent manner. Later the second appellant/second plaintiff out of his paternal affection to the child and his anxiety to cure the loss of vision took the first appellant/first plaintiff (child) to various expert physicians and optholmologists in Coimbatore city. From 13.06.1989 to 22.6.1989 the first appellant/first plaintiff was taken by the second appellant/ second plaintiff to the Masonic Medical Centre for children, Race Course, Coimbatore. On 17.11.1989, the first appellant/ first plaintiff was taken to teh Moses Gnanabranam Eye Hospital, Coimbatore. But the loss of vision suffered by the first appellant/first plaintiff could not be regained. The first appellant/first plaintiff became totally blind in both the eyes and the loss of vision would be life long. The child had to live without seeing the world. The first respondent/first defendant's carelessness, negligence and performance of incompetent surgery on the first appellant/ first plaintiff had caused the loss of vision. The ensuing years of the first appellant/first plaintiff's life would be darkness only. The loss was immense and irreparable. The first appellant/first plaintiff would have to depend upon some helper in his everyday life and in every moment of his future life. Hence, the first appellant/first plaintiff was entitled to a sum of atleast Rs.5 https://hcservices.ecourts.gov.in/hcservices/ lakhs as compensation and damages from the respondents/defendants. The first appellant/first plaintiff (child) became not only totally blind in both the eyes but also was not able to keep its neck steady. The disappointment, inconvenience, discomfort and mental agony of the second appellant/second plaintiff could not be described in words and he had to be by the side of the first appellant/first plaintiff all his life and also to provide food, special kind of education, permanent human helper by spending huge sums of money. Hence, the second appellant/second plaintiff, as the father/guardian of the first appellant/first plaintiff requires huge amount of money for providing medical amenities to the first appellant/first plaintiff life long. The second appellant/second plaintiff also was entitled to a sum of atleast Rs.2 lakhs as damages to discharge his parental obligations to the first appellant/first plaintiff. The second appellant/second plaintiff caused service of a legal notice dated 03.10.1991 on the first respondent/ first defendant who received the said notice on 07.10.1991 but did not choose to give any reply to the second appellant/second plaintiff, which conduct confirmed his liability for damages. The first appellant/first plaintiff was claiming a sum of Rs.5 lakhs towards compensation and damages for the tort committed by the first respondent/first defendant and the second appellant/second plaintiff was claiming a sum of Rs.2 lakhs towards compensation for his disappointment, inconvenience, mental shock and mental agony. The first respondent/first defendant took a stand in para 10 of the written statement that 'he had taken Doctor's Indemnity Insurance with the second respondent/second defendant and that the Insurance Company was also a necessary party to the proceedings and as such, the Insurance Company was also liable towards damages and compensation and therefore, the respondents/ defendants were jointly and severally liable to compensate the appellants/plaintiffs. Hence, the appellants/plaintiffs had prayed for passing of a judgment directing the respondents/defendants to pay a sum of Rs.5 lakhs with future interest to the first appellant/first plaintiff and also directing the respondents /defendants to pay a sum of Rs.2 lakhs to the second appellant/second plaintiff with future interest and costs. 4. First respondent/first defendant's written statement pleas: The first respondent/first defendant had averred that the claim made by the appellants/ plaintiffs for a claim of compensation of Rs.7 lakhs for the loss of vision of the first appellant/first plaintiff said to have been caused by the surgery done by him was quite untenable besides being exaggerated and further that he is one of the eminent surgeons in Coimbatore city and a fellow of Royal College of Surgeons of Glasgow Scotland and had been running a nursing home https://hcservices.ecourts.gov.in/hcservices/ under the name of 'Dr.Sengaliappan Nursing Home' for over the past three decades and his nursing home is one of the well known establishments and he is held in great esteem in the medical field and also by the public at large and has been an Honorary Surgeon visiting Coimbatore Medical College every day for nearly 25 years and he was a professor of surgery in Coimbatore Medical College and was teaching under graduates and post graduates and there was no occasion for any complaints in regard to the medical treatment done in his nursing home except in the instant case. It was further averred that the first appellant/first plaintiff was brought to the nursing home with complaints of loose motion and vomiting. On those occasions, the first appellant/first plaintiff child had lower respiratory infection, otherwise popularly known as bronchitis. On 03.4.1989 when the child was having acute gastroenteitis that is diarhores with vomiting, he was referred to a Paediatrician Dr.K.Manonmani who on diagonosis found that the child was suffering from intussusception and bronchitis. When the child was referred back to him, he advised immediate surgery to be performed. At the same time, this defendant explained to the second appellant/second plaintiff the risks that were involved in performing surgery on the small child particularly in view of the complaint of the bronchitis. The second appellant/second plaintiff was the father and guardian of the first appellant/first plaintiff (child) stated that the first respondent/first defendant could perform surgery with the attendant risks. The first respondent/first defendant obtained the written consent from the second appellant/second plaintiff which would show that the second appellant/second plaintiff was made aware of the risks involved in the operation and the anaesthesia. The second appellant/second plaintiff agreed to the operation and had stated in the declaration form that he would not hold anybody responsible in the event of any mishap. This declaration given by the second appellant/ second plaintiff was deliberately suppressed by the appellants/plaintiffs in their plaint. The first respondent/ first defendant performed the surgery on the first appellant /first plaintiff taking all care and using his medical acumen and experience. There was no negligence on his part in the performance of surgery. The child was treated after surgery in his nursing home and was discharged on 16.04.1989 when the child was cured. During this period it was not noted or complained that the child lost his vision of both eyes. The first respondent/ first defendant does not know what sort of treatment was given by Dr.K.S.Radhakrishnan and Dr.N.Radhakrishnan referred to in paragraph 8 of the plaint. After the child was discharged from the first respondent/first defendant's nursing home on 16.04.1989, the first respondent/first defendant did not know about the condition of the child because the child was not brought for further treatment to him. A reading of the plaint showed that https://hcservices.ecourts.gov.in/hcservices/ after the child was discharged from the first respondent/first defendant's nursing home for a period of 7 months the child was treated by a number of physicians and specialists. The first respondent/first defendant was made aware of the fact that the child lost its vision only from the notice given by the counsel for the plaintiff 2 ½ years after the surgery was performed by him. It was not known why the child was not taken back to the nursing home of the first respondent/first defendant. On the day when the child was discharged on 16.4.1989 the child was cured. During this period from 04.04.1989 to 16.4.1989 absolute care was taken and proper treatment of the was given. The first respondent/first defendant denied that the child lost his vision due to abdominal surgery done by him. He was not liable to compensate the appellants/plaintiffs in any manner as he had not committed any tort in the treatment given to the child. There was no scope for the appellants/ plaintiffs to foist any liability on him. On the ground of negligence, the appellants/plaintiffs were bound to prove the facts and circumstances necessary to fasten liability. In any view, the claim made by the appellants/plaintiffs for seven lakhs was quite disproportionately high and exaggerated. The second appellant/ second plaintiff was anxious to make this unfortunate suffering of the first appellant/first plaintiff a windfall on him. In the notice given by the appellants/plaintiffs, they made a demand of Rs.5 lakhs, as against seven lakhs that was now claimed. The claim of two lakhs for the second appellant/second plaintiff separately was an after thought and having sought the permission to sue as an indigent persons the second appellant/second plaintiff does not hesitate to claim as much amount as possible. The first respondent/first defendant had taken Doctors Indemnity insurance with M/s New India Assurance Company Limited, Dr.Nanjappa Road, Coimbatore to cover the liability that might arise in his professional practice and therefore, he had not issued any reply and the appellants/plaintiffs notice was forwarded to the insurer and therefore, he was under the impression that an Insurance Company would arrange to take steps to reply to the notice and hence, no reply was issued to the claim made under the notice. 5.Second respondent/second defendant's written statement averments: The second respondent/second defendant (Insurance Company), has averred that the liability of the company was limited by the terms and conditions, between the insurer and insured set out in the Insurance Contract- namely, the Insurance Policy and unlike the 'Third Party Risks' or statutory liability attached to the Motor Insurance Policy coupled with the provisions of Motor Vehicles Act, there was no such provision in the Doctors Indemnity Policy, to satisfy the claims, on proof of death or injury, during the course of https://hcservices.ecourts.gov.in/hcservices/ treatment unless it was established by proof and evidence that the death or injury was directly attributed to the treatment given by the Doctor. The Insurance Company had issued a Doctors Indemnity Policy bearing No.4671120100106 dated 10.11.1988 to cover the risks arising out of the profession carried on by the first respondent/first defendant Dr.K.S.Shanmughasundaram, FRCS, FICS, for 12 months between 12.11.1988 and 11.11.1989. As per the policy conditions, if and when a claim was proved against the insured in the course of his professional service, during period of cover and the insured became liable to pay the claims, such of the claims, would be paid by the Insurance Company. The limit of liability of the Insurance Company under any one claims was Rs.5,00,000/- and the limit of the liability of the company under any claim during the policy was Rs.10,00,000/-. The Insurance Company after receiving the legal notice from the first respondent/first defendant issued by the appellants/plaintiffs counsel, the company was perusing the claim by obtaining necessary information from the first respondent/first defendant but before the Company could send a reply, the appellants/plaintiffs had come forward with the suit and therefore, the company was not negligent in issuing a reply. In the written statement filed by the first respondent /first defendant, he denied that there was any negligence on his part on performing the operation to the first appellant/ first plaintiff and the warning and the caution was administered by the first respondent/first defendant to the second appellant/second plaintiff before performing the operation to the first appellant/first plaintiff was only a few months old. The first respondent/first defendant had also denied that the loss of vision and the tilting of the neck to the first appellant/first plaintiff was in any way connected with the operation done by him on 04.04.1989. The operation was decided only on the expert opinion given by the PaediatricianDr.K.Manonmani and hence, there was neither negligence nor want of care. When there was neither negligence nor carelessness in performing the operation on the part of the insured, the liability of the Insurance Company does not arise and the suit as against the Insurance Company would not lie. The appellants/plaintiffs were put to strict proof of the disability to the first appellant/first plaintiff and the same was directly due to the operation done by the insured on 04.04.1989 and that the first appellant/first plaintiff would be entitled to the damages of Rs.5,00,000/- and the second appellant/second plaintiff to Rs.2,00,000/-. Assuming without admitting that the plaintiffs were https://hcservices.ecourts.gov.in/hcservices/ entitled to damages, the damages claimed were excessive, speculative and out of proportionate. Whatever the damages is awarded to the first appellant/ first plaintiff, the award amount becomes the property of the minor, as defined under Section 8 of the Hindu Minority and Guardianship Act, 1956 and without the permission of the Court, the property of the minor cannot be dealt with and neither the second appellant/second plaintiff nor the mother of the first appellant/first plaintiff are entitled to the decree amount of the first appellant/first plaintiff. The award amount would be the total sum of the amount that would be required for the comfort of the entire life of the first appellant/first plaintiff and in the interest of first appellant/first plaintiff, the Court should make a provision in the decree itself that the second plaintiff or the mother of the first appellant/first plaintiff are entitled to the interest amount only or such other amount as may be required from the decree amount, for the maintenance, dress and education of the minor in any recognised 'Blind School' and that when any such provision was made or varied, the Insurance Company should be made as a necessary party and that the property of the minor or any un-spent portion of the property of him should never be succeeded or devolve upon the second appellant/second plaintiff or the mother of the minor without the order of Court. There were no bona fides in the suit. 6.Before the trial Court, on the side of the appellants/ plaintiffs, witnesses P.W.1 to P.W.4 were examined and Exs.A.1 to A.10 were marked. On the side of respondents/ defendants, witnesses D.W.1 and D.W.2 were examined and Exs.B.1 to B.3 were marked. On the Court side, Ex.C.1 was marked. 7.The points that arise for consideration in this appeal are as follows: (1) Whether the first respondent/first defendant has been right in his decision to undertake/perform the surgical operation on 04.04.1989 on the first appellant/first plaintiff Grade IV Risk Factor child in view of the prevailing condition? Is there any negligence on the part of the first respondent/first defendant in performing the surgical operation? (2) Whether the first respondent/first defendant is liable for the Act of Anaesthesiologist who has administered anaesthesia to the first appellant/first plaintiff Grade IV Risk Factor child? (3)Whether the first respondent/first defendant and the second respondent/second https://hcservices.ecourts.gov.in/hcservices/ defendant Insurance Company are liable to pay a sum of Rs.5,00,000/- with future interest as compensation to the first appellant/first plaintiff (deceased child)? (4)Whether the respondents/defendants are liable to pay a sum of Rs.2,00,000/- with future interest to the second appellant/second plaintiff? 8.The learned counsel for the appellants urges before this Court that the trial Court has committed an error in not applying the principle res ipso locquitur to the facts and circumstances of the present case on hand and moreover, the condition of the first appellant/first plaintiff after the operation speaks for itself and as such, the burden of proof shifts on to the surgeon who performed the operation to establish that he performed the operation with due diligence and care and the trial Court has not appreciated of the fact that the opthalmologist has opined that damage has been caused to the eyes due to the operation performed by the first respondent/first defendant and the loss of vision and other complications have arisen due to nervous problem which in turn has arisen due to lack of supply of oxygen to the Brain and this can happen only due to the negligence in administering anaesthesia and not by other medicines and the child was taken to other doctors only after the first respondent/first defendant expressed his inability to give further treatment and discharge the child from the hospital and the first appellant/first plaintiff (child) has suffered disabilities, apart from the blindness, which is not disputed by the respondents/defendants and immediately after the operation the first appellant/first plaintiff did not keep its neck steady and there is no valid explanation given by the surgeon and the anaesthetist about the same and they have not taken any steps to diagnose the causa causon nor they did prescribed any medicine for it and there is nothing on record to show that prior to the operation the child was suffering from bronchitis and the risk in performing the operation has been explained to the first plaintiff and if the operation is so imminent as claimed by the first respondent/first defendant, then the operation should have been performed immediately and not after 24 hours of reference and the trial Court has committed an error in holding that there is no negligence on the part of the surgeon who performed the operation without appreciating the fact that it was after the operation the child has become an imbecile and lost its vision and it was due to the lack of flow of oxygen to the brain that had caused problem to the child and even according to the team of doctors that if the flow of oxygen is not proper, the nervous system of the patient would be affected and it is due to the said reason the growth of the child has been affected and added further, while performing the operation, the doctors who performed the operation have not taken due care and diligence before and after performing the operation and the hospital records do not indicate any steps taken by https://hcservices.ecourts.gov.in/hcservices/ the doctors to identify the reason for the post-operative development and the trial Court without noticing the fact that the terms of reference to the expert committee was to assess the ability and inability of the child to do his normal needs by himself, therefore, the question of negligence or otherwise was not gone into by the expert committee and in any event, 10 years after operation, no expert can decide or find out as to whether there was negligence in performing the operation and these matters have not been looked into by the trial Court in a real and proper perspective and therefore, prays for allowing the appeal. 9.That apart, the learned counsel for the appellants submits that the trial Court has committed an error in holding that the report of the expert committee does not indicate that it was due to the operation the present condition of the child has arisen, without appreciating the fact that the scope of the reference to the expert committee was regarding the condition of the child etc. and even the oral evidence of the doctors would indicate that it was due to lack of flow of oxygen to the brain, the first appellant/ first plaintiff had lost his vision and it is not the case of the respondents/defendants prior to operation the eye sight of the first appellant/first plaintiff was bad and it is an admitted fact that eye sight prior to operation was all right and the case sheet of the first appellant/first plaintiff (child) clearly indicates that the head of the child was not properly standing and there is no