IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 AS.No. 390 of 2000(C) ----------------------------- OS.10/1994 of PRL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): ----------------------- DR.SANTHAMMA MATHEW, FORMERLY WORKING IN S.A.T. HOSPITAL, THIRUVANANTHAPURAM RESIDING AT PUTHEN VEETTIL, ULLOOR, THIRUVANANTHAPURAM. BY SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE BY ADV. MR.NANDAKUMAR E.K. RESPONDENT(S): ------------------------ 1. THANKAMONY, W/O. SURENDRAN, RESIDING AT T.C. 29/1087, PALKULANGARA, THIRUVANANTHAPURAM. 2. GOVERNMENT OF KERALA, REP.BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 3. DR. LALITHA, SUPERINTENDENT, S.A.T. HOSPITAL THIRUVANANTHAPURAM. 4. DR. KAVERI, 02 UNIT CHIEF, S.A.T. HOSPITAL, THIRUVANANTHAPURAM. 5. DR.SULEKHA, S.A.T. HOSPITAL, THIRUVANANTHAPURAM (DELETED) R5 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DT. 7.2.08 IN IA. 476/2008. R1 BY ADV. SRI.L.MOHANAN R2 BY SR. GOVT. PLEADER SRI.P.K.BABU R4 BY ADV. SRI.D.KISHORE SRI.D.SAJEEV SMT.LIGEY ANTONY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.3485/2000 IN AS. NO.390/2000 DISMISSED 20/05/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.390 OF 2000 ............................................. Dated this the 20th day of May, 2010. J U D G M E N T This appeal is preferred by the 3rd defendant against the judgment and decree in O.S.No.10/1994 of the Subordinate Judge, Trivandrum. The suit is one for damages. The unfortunate plaintiff, who was pregnant, was admitted to a hospital and unfortunately the child died in the womb and it has to be extracted out. It is the complaint of the plaintiff that if proper medical care has been taken and ceassarian operation has been done in appropriate time, it would have saved the life of the child and therefore attributing negligence on the defendants, the suit for damages is filed. 2. First defendant is the Government of Kerala, at the most who can be attributed only vicarious liability. Second defendant was the then Superintendent of the hospital, who was away at Jaipur during the relevant period. Third defendant is the doctor, who had seen the patient earlier as well, and had admitted her to the labour room on the : 2 : A.S.NO.390 OF 2000 relevant day and 4th defendant is the Unit Chief. 3. The case that is projected before the court is that the plaintiff, who had undergone an Artificial Rupture of Membarane, was unattended by doctors and because of the delay, the child died. The admitted point is that when there was Artificial Rupture of Membarane, amoenoid fluid in the uterus will get drained out and without that liquid, it is contended that the child cannot survive in the womb of the mother. According to the plaintiff, on 9.7.1991 scan was taken and it was found that the child was normal and on 10.7.1991 she was admitted in the hospital. It is the grievance that the defendants did not take proper care in spite of the Rupture of Membarane to conduct a ceassarian operation at the earliest, which had resulted in the death of the child. On the other hand, the third defendant against whom the main allegations are made denies her negligence and she would contend that she was only a doctor attending the casualty in between 8 am and 8 p.m on 10.7.1991 and that after seeing the patient in the casualty department, she had referred her in the labour : 3 : A.S.NO.390 OF 2000 ward and therefore she does not have any role to play and therefore negligence cannot be attributed on her. 4. The points that really deserve consideration are whether on account of the Artificial Rupture of Membarane the patient required an immediate ceassarian operation and whether knowing of the same the defendants or any of the defendants had committed derliction of the duty which had resulted in the death of the child in the womb. Secondly what is the real procedure followed in that hospital and who shall be responsible for the negligence, if any. Unfortunately the most important document namely the case sheet is not forthcoming before the court. Right from the recommendation by the 3rd defendant to put the patient in the labour room, rest of the things will be crystally clear from that case sheet. It will also show the time gap and other materials. Therefore production of the case sheet is absolutely necessary and the case has to be decided really on getting the same. Similarly there must be some medical evidence to show the immediate and urgent necessity for the ceassarian operation of a person on whom Artificial Rupture : 4 : A.S.NO.390 OF 2000 of Membarane has been done. This has also to be proved by some expert evidence. So, I do not want to elaborate for the reason that it may affect one of the parties. Similarly observation of the trial court that since officers have retired and even if a decree is granted against the government , they have to get it reimbursed from the retired people is not a legal ground to exonerate if there is vicarious liability. The question of vicarious liability to be considered independently and a decision be taken. 5. Therefore I set aside the judgment and decree of the trial court and remit the case back to the trial court for fresh consideration after affording equal opportunities to all sides to produce both documentary as well as oral evidence including expert evidence in support of their respective contentions and then dispose of the matter in accordance with law. permission be granted to summon the case sheet and other relevant documents necessary for the purpose of disposal of the case. Parties are directed to appear before the court on 1.7.2010. Being an old matter, let attempt be made to dispose of the case as expeditiously as : 5 : A.S.NO.390 OF 2000 possible. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.390 OF 2000 M.N. KRISHNAN, J. ........................................ A.S.NO.390 OF 2000 ...................................... 20th day of May, 2010. J U D G M E N T