IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 RSA.No. 657 of 2007() ------------------------ AS.200/2005 of DISTRICT COURT, KOTTAYAM OS.876/1997 of ADDL.M.C.,KOTTAYAM .................... APPELLANTS : APPELLANTS/DEFENDANTS ----------------------------------------------- 1. CHIEF SECRETARY TO GOVERNMENT, STATE OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, HEALTH DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 4. THE SUPERINTENDENT, MEDICAL COLLEGE, KOTTAYAM. 5. THE DISTRICT COLLECTOR, KOTTAYAM. BY GOVERNMENT PLEADER SRI.L.G.SURESH BABU RESPONDENTS: PLAINTIFF & 6TH DEFENDANT --------------------------------------------------- 1. K.K.BABU, (DIED) KOCHUPUTHUVEETTIL, KUMARAKOM, KOTTAYAM. 2. SUPPLEMENTAL: JOLLY BABU, AGED 51 YEARS, W/O. LATE K.K.BABU, KOCHUPUTHUVEETTIL, KUMARAKOM, KOTTAYAM. 3. MANOJ, S/O. LATE K.K.BABU, AGED 30 YEARS, KOCHUPUTHUVEETTIL, KUMARAKOM, KOTTAYAM. 4. MANJU, D/O. LATE K.K.BABU, AGED 26 YRS, KOCHUPUTHUVEETTIL, KUMARAKOM, KOTTAYAM. 5. MAHESH, S/O. LATE K.K.BABU, AGED 23 YEARS, KOCHUPUTHUVEETTIL, KUMARAKOM, KOTTAYAM. 6. DR. JOHN S.KURIAN, DEPARTMENT OF SURGEORY, MEDICAL COLLEGE HOSPITAL, KOTTAYAM. BY ADV. SRI.M.J.THOMAS- R1 TO R4 SRI.ALEX GEORGE SRI.GEORGE ZACHARIAH ERUTHICKEL - R5 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.No.1366/2007 IN R.S.A.No.657/2007 29.1.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO.657 OF 2007 =========================== Dated this the 29th day of January, 2008 JUDGMENT Defendants 1 to 5 in O.S.876/1997 on the file of Munsiff Court, Kottayam are the appellants. Respondents 1 to 4 are the plaintiffs. They are the wife and children of deceased K.K.Babu who died while on treatment at Medical College Hospital, Kottayam. It was on 14.8.1995 babu was admitted at Ward No.11 in Medical College Hospital,Kottayam. He was 53 years old at that time. On 16.8.1995 at 10.45 a.m he was taken to the operation theatre for performing an operation. 5th respondent conducted the surgeory. He was later taken to Ward No.11 for post operation care. Respondents 1 to 4 contended that after a few minutes Babu developed difficulty in breathing and immediately relatives informed the matter to the duty nurse as well as the duty doctor and also the 5th respondent. It was contended that after some time Babu succumbed to death and he was R.S.A.657/2007 2 unattended by 5th respondent, the duty doctor as well as the duty nurse. Contending that death of Babu was caused due to the callous negligence shown by 5th respondent the duty doctor and the staff, damages of Rs.95,000/- was claimed Rs.50,000/- was sought for pecuniary loss, Rs.20,000/- for loss of love and affection and Rs.10,000/- for loss of consortium, Rs.5000/- for funeral expenses and Rs.10,000/- for pain and suffering. Appellants filed a written statement admitting that Babu was admitted in the Medical College Hospital and he died in the Hospital. It was contended that on 10.7.1995 Babu was seen by 6th respondent and diagnosis of submandibular sialadenits on the left side was made and after preliminary investigations like x-ray blood and urine test were conducted and x-ray revealed a stone in the salivary gland and collection of lymphocytes and 5th respondent showed the result of the test to the Unit Chief who advised Babu to come for admission on 14.8.1995. He came to the R.S.A.657/2007 3 hospital on that day and was admitted in Ward No.11 as an inpatient. After the check up on 15.8.1995 surgeory was fixed to 16.8.1995. After getting consent for major operation Babu, was operated by 5th respondent. Surgeory started at 9.45 a.m. It was over at 11 a.m. The gland was adherent to the underlying muscles due to inflammation and was very vascular. Recovery from anasesthesia was smooth. The patient was transferred to the recovery room in the operation theatre. It was contended that on such transfer to the recovery room,patient was found having slight soaking of the dressing pad which was normal for such surgeries and 5th respondent removed the dressing and inspected the wound in the presence of anaesthesiologist. At 11.45 a.m. he was transferred to Ward No.11 after examined by the anaesthesiologist. Throat was inspected, but nothing abnormal was detected. At 2 p.m first respondent complained to duty nurse that patient was having some breathing difficulty. The house surgeon immediately went to the patient's R.S.A.657/2007 4 bed side and found that the patient was having difficulty in breathing and secretions were coming from the mouth. He later succumbed. It was contended that death of Babu was not caused due to any negligence and the operation was not a minor one and it was carefully done by 5th respondent who is an experienced surgeon. It was also contended that there was no unligated vessels or carelessly ligated vessels or bleeding inside the throat and post-mortem report establish that slight oozing of blood might have been resulted in hematoma and it might have been due to reactionary haemorrhage which is very minimal bleeding occurring within the first 24 hours surgeory. Contending that 5th respondent exercised more than reasonable skill and care and taken all precautions in treating the patient, it was contended that respondents 1 to 4 are not entitled to any damages. 5th respondent in his written statement contended that Babu was seen by him in the Surgeory Unit outpatient department and a diognosis of submandibular sialadenits on the R.S.A.657/2007 5 left side was made on 10.7.1995 and he was getting recurring infections with swelling due to the stone in the left submandibular gland and Babu was not doing any work and was not getting any income and to the information of 5th respondent he was working as a tailor and was getting Rs.500/- per month and his death was not due to any negligence and therefore suit is to be dismissed. 2. Learned Munsiff on the evidence of Pws.1 and 2, Dw1 and Exts.A1 to A5, Exts.B1 to B3 and Exts.X1 to X3 found that Babu died after the surgeory conducted by 5th respondent, from Medical College Hospital, Kottayam. It was found that death was caused by the negligence shown in treating Babu, subsequent to the surgeory and neither the duty doctor nor the duty nurse nor any other doctor had properly attended the patient and as a result he died and therefore death was caused due to the negligence of the duty doctor and duty nurse and other attending staff. Learned Munsiff on the evidence found that 5th respondent the doctor R.S.A.657/2007 6 who conducted the surgeory is not responsible for the death as he had taken proper care at the time of surgeory. It was found that all persons who are in administrative charge of Medical College Hospital had shown negligence and therefore appellants are liable to pay the damages. Learned Munsiff fixed the damages at Rs.95,000/- including loss of estate, pain and suffering and loss of consortium. Appellants challenged the judgment before District Court, Kottayam in A.S.200/2005. Learned District Judge analysed the evidence and confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned Government pleader and learned counsel appearing for respondents 1 to 4 were heard. 4. The argument of the learned Government pleader is that the courts below did not properly appreciate the evidence and having found that 5th respondent is not liable for damages, courts below R.S.A.657/2007 7 should not have found that respondents 1 to 5 are liable. It was argued that proper care was taken by the duty doctor and duty nurse and supporting staff and death of Babu was not caused due to any negligence shown by the doctor or the staff and therefore the decree is not sustainable. 5. On hearing the learned Government pleader, I do not find any substantial question of law involved in the appeal. 6. Though it was 5th respondent who conducted surgeory, learned Munsiff and learned District Judge on analysing the evidence including the case records and evidence of PW2 the doctor who conducted the post-mortem, found that 5th respondent conducted the surgeory with proper care and caution, exercising the reasonable skill and care expected of a professional man and death of Babu was not caused due to his negligence. Courts below also found that after the operation, deceased Babu was removed from the post operative care room to Ward No.11 and thereafter he was not properly R.S.A.657/2007 8 attended either by the duty doctor or the duty nurse. It was found that if reasonable care and skill was exercised by the duty doctor and the duty nurse, death of Babu could have been averted and death was caused by the negligence shown by the duty doctor and the duty nurse. These factual findings was arrived at by the courts below proper appreciation of evidence on record. As found by courts below when it is admitted case that Babu succumbed subsequent to the operation, while he was under the care and treament at Medical College Hospital, appellants have to establish that the doctors and the staff nurse of the Hospital had taken reasonable care and skill expected of a professional men. But no evidence was adduced to establish that fact. Courts below on the evidence found that Babu was not attended to after he was removed from the post operation care room to Ward No.11. That factual finding arrived at by the courts below on analysing the evidence cannot be interfered in exercise of the powers of this court R.S.A.657/2007 9 under section 100 of Code of Civil Procedure, especially when appreciation of evidence was not at all perverse. Findings of courts below that death of Babu was caused due to the negligence of the duty doctor and the supporting staff is in accordance with the evidence. 7. Then the only question is with regard to the quantum of damages. Deceased was aged 53 years. Courts below found that he was earning Rs.2000/- per month and loss of dependancy is Rs.1300/- per month. Even a reasonable multiplier is adopted to fix the damages, loss of dependancy, it would exceed the total damages of Rs.95000/- granted by courts below. Hence no interference is warranted on the quantum of damages. 8. As no substantial question of law is involved in the appeal, appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- R.S.A.657/2007 10 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006