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 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months for the maintenance expense of the first appellant/first plaintiff and the said deposited amount should not be withdrawn without the permission of the Court and accordingly, rendered a judgment by directing the respondents/defendants to pay the Court fee taking into account of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 vomiting, (ii)motion with blood stains, and (iii) fever and cough. The first appellant/first plaintiff was put on intra-venous fluids and Ampicillin injection was administered by 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 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 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 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 = 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 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 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 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 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 discharge summary and the trial Court has not taken note of the fact that as to how the doctor has permitted the child to be discharged when there were complications even according to the case sheet.
10.Finding on Point Nos.1 to 4:
The learned counsel for the appellants submits that the first appellant/first plaintiff (deceased child) has been admitted into the Sengaliappan nursing home on 03.4.1989 when it has been six months old for treatment of complaints like loose motion and vomiting, motion with blood stains and fever and cough and that the child has been put on the intra-venous fluids and ampicillin injection has been administered to the child by the first respondent/first defendant surgeon who advised surgical operation on 4.4.89 and accordingly, the first respondent/first defendant performed the operation assisted by Dr.Velumani at the surgical theatre of the first respondent/first defendant's nursing home and after the appendicecotomy performed by the first respondent/first defendant, the first appellant/first plaintiff (child) developed respiratory depression, fever and seizures etc. and the child has not been keeping its neck steady and to the mental shock and disappointment of the second appellant/second plaintiff, the first appellant/first plaintiff (child) has lost vision in both eyes and also the complaint of loose motion and vomiting persisted and the first appellant/first plaintiff has been taken to an expert Paediatrician Dr.K.S.Muthukrishnan, Professor of Paediatrics Medical College Hospital, Coimbatore for treatment in regard to the complaint of loose motion and vomiting and the first appellant/first plaintiff has taken the treatment on 26.4.1989, 29.4.1989 and on 03.05.1989 but the child has not regained vision owing to the irreparable damage caused by the first respondent/first defendant surgeon during the performance of his surgical operation on the first appellant/first plaintiff on 04.04.1989 and hence, the first appellant/first plaintiff has been taken to an expert Opthomologists viz., Dr.N.Radhakirshnan, Assistant Professor of Opthalmology, Medical College Hospital, Coimbatore who has given an opinion suspecting cortical blindness due to cortical damages following abdominal surgery performed in an incompetent and negligent manner and later, the first appellant/first plaintiff-child has been taken to Moses Gnanabranam Eye Hospital, Coimbatore but the loss of vision suffered by the first appellant/first plaintiff has not been regained and the child has become totally blind in both the eyes and the loss of vision which will be life long is an immense and irreparable one and moreover, the first appellant/first plaintiff will have to take the help of some one and depends on him in his everyday life and in every moment of his future and added further, the first appellant/first plaintiff has not been in a position to keep its neck steady as a result of which mental agony, inconvenience and disappointment have been caused to the second appellant/second plaintiff and since the second appellant/second plaintiff has father of the first appellant /first plaintiff is entitled to claim a damages of Rs.2,00,000/- to discharge his parental obligations upon the child and for the tortious act committed by the first respondent/first defendant, the appellants/plaintiffs are entitled to the relief of compensation has prayed for in the plaint and since the first respondent/first defendant has taken an insurance policy with the second respondent/second defendant, the respondents/ defendants are jointly and severally liable to pay compensation to the appellants/plaintiffs.
11.Continuing further, the learned counsel for the appellants contends that the first appellant/first plaintiff died in the year 2007 and the operation ought to have been performed on 03.04.1989 when the child has been admitted into the first respondent/first defendant's nursing home and there is no need to wait till 04.4.1989 in the performance of the surgical operation on the first appellant/first plaintiff and while administering anaesthesia proper care has not been taken and when the first appellant/first plaintiff has been ailing with bronchitis then operation should not have been carried out and there has been a lack of flow of oxygen by administering anaesthesia and entire nervous system has been affected and also has drawn the attention of this Court to the report of the Special Medical Board constituted on 29.3.2000 Ex.C.1 in respect of the first appellant/first plaintiff wherein it is inter alia mentioned that the Board has carefully examined the first appellant/first plaintiff who has been referred by the trial Court to the Dean, Coimbatore Medical Hospital regarding the child's ability and inability to do normal needs by himself and to submit a report with opinion and the first appellant/first plaintiff has been referred to the Medical Board on 20.03.2000 and the same day the child has been admitted at Rotary Ward (Paediatric ward) and in regard to the past history of the first appellant/first plaintiff it is mentioned thus:
"The child was admitted in a private Nursing home on 3.4.89 at 6 months of age for Acute Gastro entritis referred to a Paediatrician whose opinion was a surgical condition intususseption and referred to the same private Nursing Home. The child was operated under General Anaesthesia on 4.4.89. The baby did not fully recover from anaesthesia. As per discharge summary of the Hospital concerned (Xerox copy) Baby had respiratory depression, fever and seizure. C.S.F Analysis was normal. Baby improved and took oral fluids. Does not keep the neck steady, discharged on 16.4.89, to review after one week. Seen by private neurologist and Ophthalmologist loss of vision due to Cortical blindness due to cerebral damage."
and the first appellant/first plaintiff has been evaluated on 29.03.2000 by a Special Medical Board constituted for that purpose with a team of doctors, comprising of Paediatric Physician, Neurologists, Anaesthesiologists, Psychiatric and Paediatric Surgeon as requested by the Dean of the Hospital and the opinion as follows:
12.However, the learned counsel for the second respondent /second defendant submits that the first respondent/first defendant-doctor is not vicariously liable since anaesthesia has been given by the D.W.2-Anaesthesiologist and moreover, D.W.2 is not a party to the suit and that the second appellant/second plaintiff has mentioned in the declaration form that he will not hold anybody responsible in the event of any mishap and in fact he has agreed to the operation and that the first respondent/ first defendant has obtained the written consent from the second appellant/ second plaintiff and in short, there has been no negligence on first respondent/first defendant's part in regard to the performance of the surgery upon the first appellant/first plaintiff and it is denied that the first appellant/first plaintiff has lost his vision due to the abdominal surgery performed by the first respondent/first defendant.
13.However, the stand of the second respondent/second defendant Insurance Company in the written statement is that the operation has been decided only on the expert opinion given by the Paediatrician Dr.K.Manonmani and hence, there has been neither a case of negligence nor want of care in performing the operation on the part of the first respondent/first defendant surgeon (insured) and therefore, no liability can be fixed on the second respondent/second defendant Insurance Company.
14.In this connection, it is useful to refer to the evidence of P.W.1(second appellant/second plaintiff-father of the first appellant/first plaintiff-child) who has deposed that on 28.02.1989 he has taken his son-first appellant/first plaintiff to the doctor-first respondent/ first defendant in connection with fever and the first respondent/first defendant-doctor has examined his son viz., the first appellant/first plaintiff and has prescribed the Ex.A.1-medicine chit and on 31.03.1989 he has taken his son to the first respondent/first defendant-doctor in connection with fever, vomiting and loose motion and again on examination the first respondent/first defendant has prescribed Ex.A.2 medicine chit to the first appellant/first plaintiff and again asked the appellants to come after 2 or 3 days later and since the first appellant/first plaintiff has been ailing from loose motion and fever on 03.04.1989 again he has taken him to the first respondent/first defendant and the first respondent/first defendant after examining the first appellant/first plaintiff has given him Ex.A.3 letter to consult Dr.Manonmaniam and he has taken his son viz., the first appellant/first plaintiff to the said Dr.Manonmaniam and that she has administered an injection to the first appellant/first plaintiff and informed the second appellant/second plaintiff that a surgery has to be performed and issued Ex.A.4 medicine chit and further that he has shown Ex.A.4 medicine chit and further that he has shown Ex.A.4 medicine chit to the first respondent/first defendant and since the first respondent/first defendant informed him that his son has to undergo surgery on 03.04.1989 itself he has admitted the first appellant/first plaintiff and on 04.04.1989 an abdominal surgery has been performed on his son viz., the first appellant/first plaintiff for his ailment of vomiting and loose motion and the surgery report is Ex.A.5 and after completion of surgery his son's neck has not been standing steadily and he has no eye vision and has been affected with fever and fits and he has informed about these ailments to the first respondent/ first defendant and 16.04.1989 his son viz., the first appellant/first plaintiff has been discharged from the first respondent/first defendant's nursing home and when the first appellant/first plaintiff has remained in the hospital he has not been in a position to work, his neck has not been steady, and has no vision in his eyes and when he informed the first respondent/first defendant-doctor who in turn has informed him that he will prescribed medicines and if taken the same will be cured and in spite of the medicines given to the first appellant/first plaintiff has prescribed by the first respondent/first defendant, still his son's ailment has not been cured.
15.It is the further evidence of P.W.1 that when he has taken the child on 26.4.1989 to the child specialist Dr.Muthukrishnan who informed him that because of the operation conducted by the first respondent/first defendant, his son viz., the first appellant/first plaintiff has been affected and therefore, he directed the second appellant/ second plaintiff to go and consult the first respondent/ first defendant and the medicine chits prescribed by Dr.Muthukrishnan is Ex.A.6(3 in series) and again he has come to the first respondent/first defendant's nursing home and has seen the first respondent/first defendant who in turn has asked him to consult Dr.Venkatraman and has given a letter to that effect accordingly, he has gone to the said Dr.Venkatraman who in turn on examining his child viz., the first appellant/first plaintiff has prescribed medicine and asked the second appellant/second plaintiff to see Dr.Radhakrishnan and on taking his son to the said Dr.Radhakrishnan he has informed him that because of the mistake committed in surgery by the doctor, his son viz., the first appellant/first plaintiff has lost the eye sights and nothing can be done and he has given him Ex.A.7 certificate and at the time of surgery his son has been four years old and that his son cannot live separately and that after his and his wife's life time there is no one to look after his child and he has issued Ex.A.8 notice claiming damages from the first respondent/first defendant for his negligent act and he has given his consent since the first respondent/first defendant has informed him that only when he gives his consent the operation will be performed.
16.P.W.1 in his cross examination has specifically stated that the Dr.Manonmani has not informed him that operation is not performed then the first appellant/first plaintiff will be in danger and she has also not informed him has to the necessity of performing the surgical operation and in Ex.B.1 he has affixed his signature and he has come to know that his child has no vision in the eyes after being informed by Dr.Radhakrishnan and after the performance of surgical operation the first appellant/first plaintiff has remained in the nursing home for 10 days and he does not know the manner of defects in regard to the performance of the surgical operation and since the Sengaliappan nursing home doctor has informed him that he will cure his child and therefore, there has been a delay of 2 = years in regard to the issuance of notice and before issuance of notice he has seen the Sengaliappan nursing home doctor who has informed him that he will cure in two or three times.
17.P.W.3-Dr.Subramaniam in his evidence has deposed that the child scene in Ex.A.10 photo has been admitted in their hospital on 20.03.2000 and as per Court's order the medical experts have examined the child and submitted a report Ex.C.1 and the first examination explanation in Ex.C.1 report has been given by him and the child had loose motion in his six month for which he has been admitted in a private nursing home and further has been referred to the child specialist and he examined the child and sent the child for a private hospital in regard to the performance of a surgery and because of the loose motion child's intestines have intruded each other for which a surgery has been performed and the child has taken food four hours after the completion of the surgery and since the child has been affected with fever, chest pain and fits, the oxygen supply to the brain has been reduced or stopped and therefore, the child's brain has been affected and 10 days later the child has been discharged from the nursing home and thereafter, they have seen the child at the time of their examination as per Ex.C.1 report and in the final opinion of Ex.C.1-report they have mentioned that the child has been affected mentally, incapable of independent living, requires continuous support by attenders, not able to do his normal works by himself and Ex.A.5 contains detail in regard to the child's neck not standing steadily and the damage caused to the child cannot be cured.
18.P.W.4 Dr. Christopher Mariyadas, in his evidence has deposed that the child in Ex.A.10 has been admitted into the hospital on 20.3.2000 and after examining the child Ex C1 report he has given his Neurologist opinion as second one and since the adequate supply of oxygen for the brain has not been there, the brain and body developments have been affected by 100%. As per the brain scan, it appears that the child has been affected with fits disease and as per the C.T. Scan Report is the third and fourth brain, water portion has been expanded largely and from this one can observe the brain decrease in size and the child cannot independently perform any activity and the child cannot speak, cannot ask for food and these cannot be performed by the child and further the child cannot express in regard to the passing of urine and passing of motion and moreover in his cross examination has specifically stated that he has examined the child for the first time in March 2000 and the reason for brain being affected is due to the decrease oxygenation of brain and he has not brought C.T.Scan report and the person who brought the child is keeping the C.T.Scan report.
19.P.W.5 Dr.Ramachandran in his evidence has stated that subsequent to 20.3.2000, he has seen the child in Ex A10 and in Ex.C.1 report as third item, he has given opinion as anaesthesiologist and there is no improvement in mental condition of the child as per his examination and that the child cannot do anything by himself and the child will have to depend on others and only with the help of others,he has to attend to his needs and in his cross examination has categorically stated that if the oxygen inflow is normal then it will affect nervous system of the patient and the child prior to surgery has respiratory problems and at the time of surgery, the concerned child in Ex.C.1 has remained as a risk patient.
20.D.W.1 Dr.K.S.Shanmuga Sundram/first defendant in his evidence has deposed that the first appellant/first plaintiff minor Ganesh received treatment in his Nursing Home and he has remained as an inpatient and the case sheet relating to the first appellant is Ex.B.2 and the first appellant/first plaintiff has come to his Nursing Home with a complaint of shrinking of intestine and the first appellant/first plaintiff has also been affected with Phlegm and loose motion and on 3.4.1989 when the first appellant/first plaintiff has been admitted in his Nursing Home, the child has been in a drowsy state and because of loose motion, the child has dehydration and before admitting as an in patient, the first appellant/first plaintiff because of loose motion has come to his Nursing Home on 28.2.1989 and received treatment as out patient and has been administered injection and medicine has been prescribed to him as per Ex.A.1 and again for fever and Phlegm, he has been given treatment as per Ex.A.2 and before admitting the first appellant/first plaintiff as an inpatient in his Nursing Home while, the child has been undergoing treatment with him, he has given the recommendation letter Ex.A.3 to see Dr.Manonmani and the said Dr.Manonmani sent the first appellant/first plaintiff as per Ex.A.4 to his Nursing Home and in Ex.A.4 in the body of the first appellant/first plaintiff, there has been reduction of water level and also there has been phlegm and there has been tumour in the stomach and for which Dr.Manonmani has administered injection and these find a place in Ex.A.4 and if the surgical operation has not to be performed on the first appellant/first plaintiff, then the child's life will be in danger and on 4.4.1989, he has performed surgical operation on the first appellant/first plaintiff and that the first appellant/first plaintiff's intestine remains inserted and in the surgical operation, it has been set right and the appendix which has been partly in a decaying condition has been removed and on 4.4.1989m the first appellant/first plaintiff has been six month child and in the surgical operation, there has been a risk and in these circumstances, the risk factor pertaining to the operation will be informed to the parents and after obtaining their consent and the signatures will be obtained and surgical operation position has been explained to the first appellant/first plaintiff's father and then only from him Ex.B.1 has been obtained, if the surgical operation has not been performed on 4.4.1989 on the child then the child would have expired and in Ex.B.2, the treatment details after surgery are seen and in Ex.A.5 is the discharge sheet and on 16.4.1989 the child has been sent from the Nursing Home.
21.D.W.1 in his further evidence has deposed that the first appellant/first plaintiff, when he remains an inpatient in his Nursing Home, has been seen by Dr.Muthukrishnan, the Child Specialists and another Doctor by name Dr.Ramakrishnan and they examine the child and after 16.4.1989 when the child has been sent from his Nursing Home again, the child has not been brought to his hospital and it is incorrect to state that because of the performance of surgical operation, the child has lost his eye sight and there has been no complaint in regard to the loss of eye sight, the child has been in his Nursing Home during treatment and that he has not aware about the opinion obtained from Dr.Muthukrishnan, Child Specialists in regard to the first appellant/first plaintiff and he does not know about the child being shown to Dr.Radhakrishnan, when the child has lost his eye sight and from 13.6.1989 to 22.6.1989, the child has been taken treatment in Masonic Medical Centre and added further that he is not aware of the treatment given by Moses Eye Hospital to the child on 17.11.1989 and he has performed the surgical operation only in a proper manner and there has been no negligence on his part and when the case has been pending, the child has been examined by the Coimbatore Medical College Hospital and examining the child, after twelve years in regard to the operation performed 12 years before, one cannot find out that the child has lost his eye sight and in case of unforeseen circumstance, if any incident occurs in his Nursing Home then he has taken insurance with the second respondent/second defendant and the policy issued by the second defendant is Ex.B.3 and that he is not liable to pay the compensation and in case if any compensation is to be paid as per Judgment, then it has to be paid only by the second defendant.
22.D.W.2 Dr.Lakshmi Ashok(Anaesthesiologist) in her evidence has stated that she is serving as anaesthesia expert for the past 26 years and that she is not employed in a particular Nursing Home and that she is doing her own job and she has rendered work as an anaesthesia expert in different hospitals and from 1982 onwards, she has served as an anaesthesiologist in 'Dr.Sengaliappan Nursing Home' and that the said Nursing Home is an old one and the first respondent/first defendant is the Chief Executive of the said Nursing Home and during April 1989, for the first appellant/first plaintiff child Ganesh, she has administered the anaesthesia and the first respondent/first defendant informed her the surgical operation has to be performed on the first appellant/first plaintiff and she has come to know about the health condition of the first appellant/first plaintiff child and she consulted the first respondent/first defendant Doctor in regard to the health condition of the first appellant/first plaintiff child and at that time, the health condition of the child has been in a bad condition and the condition has been as such that the child has to be surgically operated upon in the abdomen operation and the first appellant/first plaintiff chid, she has administered general anaesthesia and apart from the stomach problem the child had high chest pain and wheezing like asthma and also the child had been in a higher drowsy and in case of ordinary surgical operation and if the chest pain is there, then in such a case, she will not administer anaesthesia. But as far as the first appellant/first plaintiff is concerned, since the urgent necessary surgical operation has to be performed and in the state of anaesthesia being administered, all necessary oxygen has been given but the intake of the oxygen might have been in decreasing state and after the surgical operation, she has not seen the first appellant/first plaintiff child and if surgical operation is not performed on the first appellant/first plaintiff then she has known that the child will not survive and in regard to administering of anaesthesia, she is not in the habit of taking notes and even after the completion of surgical operation, the first appellant/first plaintiff had respiratory problem.
23.It is the further evidence of D.W.2 that the first appellant/first plaintiff at the time of surgical operation has remained as a Grade IV risk factor and through oxygen, she has administered anaesthesia to the first appellant/first plaintiff for 45 minutes and as per Ex.B.2 on what time, the first appellant/first plaintiff has regained his conscious has not been mentioned and after the completion of surgical operation, the first appellant/first plaintiff has regained conscious and the time of taking the child to the room after regaining conscious has not been mentioned in Ex.B.2 document and in Ex.B.2 document, she has not written 4.4.1989 notes and prior to the surgical operation, the first appellant/first plaintiff circulatory system has remained a good condition but the respiratory system has not been that much good. Generally, the damage by means of administering anaesthesia will affect the brain and eyes and in other parts will not be serious and the first appellant/first plaintiff has phlegm in his lungs and the first appellant/first plaintiff child has been given anaesthesia through blood vessels and further it is correct to state that one has to see whether Grade IV patient will withstand the administration of anaesthesia and the doctor has informed her about the health condition of the child prior to the operation and she has remained till the completion of surgery on the first appellant/first plaintiff and if there has been any mistake in regard to the administering of anaesthesia, then the first appellant/first plaintiff would not have survived.
24.In this connection, it is to be pointed out pertinently that in general,a professional individual owes to his client a duty in Tort as well as in Contract in advice or performing service as per Jackson & Powell, Professional Negligence,3rd Edn.Para 1-04,1-05 and 1-56 as quoted in Indian Medical Association v V.P.Santha and Ors (JT 1995(8) SC 119) para.23 : AIR 1996 SC 550. That apart, the term 'negligence'(as per Black's Law dictionary 6th Edn.) means the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do or the doing of something which a reasonable and prudent man would not do. As a matter of fact,'negligence' is failure to observe,for the protection of the interests of another, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. Indeed, the idea of negligence and duty are correlative in the considered opinion of this Court. More over, 'negligence' is a relative term but not an absolute one and in fact a comparative terms. To find out whether the act will be or will not be negligent, it is necessary to determine ,if any reasonable person will foresee that the act will cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act,as per the decision in Municipal Corpn of Greater Bombay V. Laxman Iyer(2003(8) SCC 731).
25.Coming to the aspect of medical negligence, the same is defined as lack of reasonable care and skill or wilful negligence on the part of the doctor in respect of acceptance of a patient, history taking, examination, diagnosis,investigation,treatment-medical or surgical etc. resulting in injury or damage to the patient. The word 'damage' means physical,mental or functional injury to the patient. Halsbury's Laws of England 3rd Edn., Volume 26 at page 17, it is observed as follows:
"The law requires that the practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. The law does not expect the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case"
26.In Crits.v.Sylyester(1956) 1 DLR(2d) 502,508), it is observed that 'Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability'.
27.In an American case Derr v. Bonney,(231 P.2d.637,Wash.1951) the Court's definition of negligent treatment is an excellent statement of the general definition of a physician's,legal responsibility in treatment which are as follows:
"a) An individual licensed to practise medicine is presumed to possess that degree of skill ad learning which is possessed by the average members of the profession in the community in which he practices, and it is presumed that he has applied that skill and learning with ordinary and reasonable care to those who come to him for treatment.
b) The contract which the law implies from the employment of a physician or surgeon is that the doctor will treat his patient with that diligence and skill just mentioned.
c) He does not incur liability for his mistakes if he has used methods recognised and approved by those reasonably skilled in the profession.
d) Before a physician or surgeon can be liable for malpractice/negligence he must have done something in the treatment of his patient which the recognised standard of medical practice in his community forbids in such cases or he must have neglected to do something required by these standards.
e)In order to obtain a judgment against a physician or surgeon, the standard of medical practice in the community must be shown and further that the doctor failed to follow the method prescribed by that standard.
f)It is not required that physician and surgeons guarantee results, nor that the result be what is desired.
g) The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant or a disagreement of doctors of equal skill and learning as to what the treatment should have been, does not establish negligence".
Also the medical negligence can result from an act of omission as per the decision(Dr)T.T.Thomas v. Smt.Elisa(AIR 1987 Ker.HC 52).
28.Further in the decision Hunter v. Hamlay(1955)SLT 213 at 217)(Scottish case) it is observed as follows:
"The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of acting with ordinary care".
Generally speaking there must be a direct connection between the injuries suffered and the treatment given. Even if the patient is in a fit condition to give answer,the surgeon owes a duty to inform him of the dangers ahead or the risk involved by going without an operation at the earliest.
29.At this stage, this Court points out the decision of the Honourable Supreme Court in Indian Medical Association.v.V.P.Santha and others(AIR 1996 SC 550) wherein at paragraph 24 it is observed as follows:
" It would thus appear that medical practitioners, though belonging to the medical profession are not immune from a claim for damages on the ground of negligence. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of Medical Council of India and/or State Medical Councils is no solace to the person who has suffered due to their negligence and the right of such person to seek redress is not affected".
30.In the decision of this Court in Arpana Dutta v. Apollo Hospitals Enterprises Ltd., and others(2002 ACJ 954 at 970 in paragraph 25, it is among other things observed that 'The patients like P.W.1 go and get themselves admitted in the defendant No.1 Hospital relying upon the hospital to provide them the medical service for which they pay necessary fee. It is expected from the defendant No.1 who run the hospital, to provide such a medical service and in case where there is deficiency of service or in cases like this, where the operation has been done negligently without bestowing normal care and caution, the defendant No.1 also must be held liable and the defendant No.1 cannot be allowed to escape from the liability by stating that there is no master and servant relationship between the defendant No.1 hospital and the defendant No.3 surgeon, who did the operation'.
31.In the decision of this Court Dr.Lakshmanan Prakash.v State and another(2001 ACJ 1204 at 1205) it is held that' Doctor can be found guilty only if he falls short of standard of reasonable skilful medical practice and he cannot be held negligent simply because something has gone wrong'.
32.in Halsbury's Laws of England 3rd Edn., Volume 26 at page 19 under the caption 'Liability of Hospital Authorities' it is mentioned that (1) A hospital authority(Weigall.v.Westminister Hospital(1936)All E.R.232) must use reasonable skill and care in carrying on the hospital(Evans.v.Liverpool Corpn; (1906) 1 K.B.160) and is liable for the acts or omissions of its permanent staff, whether they are surgeons, physicians, or nurses or fall into any other category, in the course of their employment(Gold.v Easter County Council(1942) 2 K.B.293). In addition it seems that in principle a hospital authority is liable for the acts or omission of any part time or visiting consultants and specialists if they are employed as part of its organisation for providing treatment,whether they are in law the servants of the hospital authority or not; for in such circumstances the hospital authority undertakes the obligation of giving to any patients who require it treatment of the kind which the consultants and specialists are employed to provide(Roe.v.Minister of health(1954)2 Q.B.66)'.
33.In Cassidy .v.Ministry of Health(1951)ALL England Law Reporters at Page 574 it is held that 'the Evidence showing a prima facie case of negligence on the part of the persons in whose care the plaintiff was which had not been rebutted, the defendants, in view of the terms of the employment of Dr.F. and of the house surgeon, were liable to the plaintiff whether the negligence was that Dr.F or the house surgeon or of a member or members of the nursing staff'.
34. In Halsbury's Laws of England Second Edn volume 22 at page 321 it is observe that' the relationship between a medical practitioner and his patient does not excuse the former, whatever medical etiquette may require, from the obligation,if called upon, to give evidence in a court of law as per decision R.v.Kingston(duches) (1776)20 State Tr.355 at page 537) and that he is in the same position as any other person who is not specially privileged in this respect by the law and that he may be summoned to give evidence in civil or criminal causes etc.,
35. In Halsbury's Laws of England Second Edn.Volume 23 at page 577(para 829) under the caption Sub Section-4 Profession of Special Skill decision mentioned that 'the practice of a profession, art, or calling which, from its nature, demands some special skill, ability, and experience(Christic v. Griggs (1809) 2 Camp 79) carries with it a representation that the person practising or exercising it possesses, to a reasonable extent, the amount of skill, ability, and experience which it demands(Marshall .v. York Newcastle and Berwick Rail Co., (1851)II C.B.655 Per Williams J, wherein the following passage is seen.
"If a smith prick my house with a nail etc., I shall have my action upon the case against him without any warranty by the smith to do it well;for it is the duty of every artificer to exercise his art rightly and truly as he ought'
36.Admittedly, the case of an injured/disabled individual is more pitiable and the feeling of hurt, helplessness, despair and often destitution enures daily. The support that is required by the injured/severally disabled individual comes at a heavy price,physical, financial and emotional, not only on the affected/injured but even more so, on his attendants and the stress and strain saps their energy and destroys their equanimity in the considered opinion of this Court.
37.Ex.A.1 is the medical prescription dated 28.02.1989 in respect of the first appellant/first plaintiff issued by the Dr.Sengaliappan Nursing Home, Coimbatore. In this it is written as LRI R, od Tixylix 1 hp
38.Ex.A.2 is the medical prescription dated 31.3.1989 in respect of the first appellant/first plaintiff issued by the Dr.Sengaliappan Nursing Home, Coimbatore. Ex.A.3 is the letter dated 3.4.1989 issued by the first respondent/first defendant in the letter pad of Dr.Sengaliappan Nursing Home addressed to Dr.Manonmani wherein the first appellant/first plaintiff-child has been referred for favour of management. Ex.A.4 is the medical prescription dated 3.4.1989 in respect of the first appellant/first plaintiff issued by Dr.K.Manonmani, Children's Clinic & Nursing Home. In Ex.A.4-Prescription, it is mentioned as follows:
Pd 3.4.89
1) O 6 Yrs
2) Pt -
Loose stools with blood & mucous vomiting /.... H/o frequent ..... Dehydrate x ...... mass in abdomen (Lt) P.R. Intussusception felt for abdomen ...... Intussusception . Bronchitis Refer child back to Dr. K.S.S. 39.In Ex.A5 is the medical card in respect of the first appellant/first plaintiff issued by the first respondent/first defendant Dr. Sengaliappan Nursing Home. The diagnosis is 'INTUSSUSCEPTION' and the child has complaints of HOPI loose motion and vomiting 2 days motion blood stained Had fever and cough. O/E. Dehydrated, drowsy RS crepts + wheeze + PA: has a mass in the suprapubic region. The first appellant/first plaintiff's treatment has been mentioned as 'Baby was put on ir fluids and Inj. Ampicillin 250mg ir Bd.' In the said Ex.A.5 medical card it is mentioned as follows: 4/4/89 D/B Dr.KSS A/B Dr.Velumani Under GA, Rt. Mid Paramedian incision, abd. Was opened - Ileocolic intussusception, going upto the middle of .... colon was found - was reduced intestines were viable - appendix was gangrenous, due to vascular obstruction appendicectomy was done and wound closed in layers. Follow up: R, - ir fluids. PoP Baby had respiratory - inj. Ampi. 250Bd depression - had fever and seizures R, - ir fluids - Inj. Lafix long Bd - Antibiotics - Inj. ..... Inj. Dixona 4 mg Bd CS7 analysis - was normal Baby improved and took oral feeds. Does not keep the neck steady. To review after 1 week. In Ex.A5 medical card, signature of the first respondent/first defendant is not seen.
40.Ex.A.6 is the medical prescription dated 3.5.89, 29.4.89, 26.4.89 (3 in series) issued by Dr.K.S.Muthukrishnan, Specialist in Child Health, Coimbatore in favour of the first appellant/first plaintiff-child. Ex.A.7 is the letter of Dr.N.Radhakrishnan, Assistant Professor of Ophthalmology, Medical College Hospital, Coimbatore dated 22.5.89 addressed to Dr.Venkataraman, M.D.D.M., Neurologist in respect of the child Ganesh (first appellant/first plaintiff) wherein it is inter alia mentioned that '.... Even though I could not elicit pupillary reflexes. I suspect cortical blindness due to? Cortical .... When there will be bilateral total loss of vision (NO PL) with normal pupillary reflexes and normal fundi. So I think blindness is due to cortical damage. Ex.A.8 is the second appellant/second plaintiff lawyer's notice dated 03.10.91 addressed to the first respondent/first defendant wherein it is mentioned that 'the first appellant/first plaintiff aged 4 moths has been brought to his Nursing Home for consultation with a medical complaint of loose motion and vomiting on 28.2.1989 and again on 31.3.1989 the child has been taken for treatment as advised by and on 3.4.1989 the first respondent/first defendant has referred the first appellant/first plaintiff-child to the Paediatrician, Dr.K.Manonmani in Cowley Brown Road, R.A.Puram, Coimbatore and she examined the child and diagnosed the disease as "Intussusception" with bronchitis and referred the child back to him for necessary treatment and that she has given Ampicillin plus Aminophylline intra-venous injection to the child for wheezy bronchitis and on 3.4.1989 when the child has been 6 months old, has been admitted for medical complaints of (i)loose motion and vomiting , (ii) motion with blood stains and (iii) fever and cough and the child has been put on intra-venous fluids and Amipicillin injection and on 4.4.1989 the first respondent/first defendant performed the surgical operation assisted by Dr.Velumani at the Surgical Theatre in Dr.Sengaliappan Nursing Home and after the appendicectomy, the child had respiratory depression, fever and seizures and the child has not keep its neck steady and that after the abdominal surgery, the child has lost vision in both the eyes and thereafter, the child has been taken to an expert Opthalmologist and after examination, he has certified that the loss of vision of the first appellant/first plaintiff in both the eyes with no pupillary reflexes has been due to abdominal surgery done in an incompetent and negligent manner and the child has been taken to many of the Paediatricians and Opthalmologists in Coimbatore and all of them have given the same opinion that the loss of vision in both the eyes of the child has been due to careless, negligent and incompetent abdominal surgery done by him and therefore, the second appellant/second plaintiff claims a sum of Rs.5 lakhs as compensation and damages from him for the loss caused by his tortious act and to pay the same within 15 days from the date of receipt of the notice etc.'
41.A perusal of Ex.B.1 declaration form printed in English to Dr. Sengaliappan Nursing Home dated 4.4.1989 signed by the second appellant/second plaintiff (father of the first appellant/first plaintiff-child) in Tamil refers that the recitals in the said form in English language point out that the second appellant/second plaintiff has been made aware of the risks involved in the operation and anaesthesia (in respect of the first appellant/ first plaintiff) and that he has agreed to the operation to his own free will and does not hold anybody responsible in the event of any mishap. Indeed, in Ex.B.1 on the right hand side of the declaration form signature of one M.Adaikalam is seen in Tamil. Ex.B.2 is the case sheet in respect of the first appellant/first plaintiff issued by the Dr.Sengaliappan Nursing Home, Coimbatore. In Ex.B.2 case sheet at page 2 on 4.4.89 it is written as follows:
Anas. Dr.Lakshmi Ashok.
Under GA, by Rt. Mid paramedian incision, abd. was opened - Ileocolic intussusception, going upto the middle of .... Colon was found - was reduced intestines were viable - no intestinal pathology - appendix was gangrenous, due to vascular obstruction appendicectmy was done and wound closed in layers. At 12.30 pm it is mentioned as Baby dyspnoeic etc. At 1.15 pm it is mentioned as 'Baby gasping cyanosed extremities Respiration ! O/E Ralep ++,' and again at 2 pm it is mentioned as 'Baby ...
Cyanosis ! - Ice water spouging Gasping Respirate 12/mt. given Further, in Ex.B.2 case sheet at page 5 dated 4.4.89 reverse it is mentioned at 10 am that 'Respiration irregular' lung signs ++; At 1 pm it is mentioned as Passed blood stained motion; At 5 pm it is mentioned as '... Respiration good, cus-normal' etc.
42.In Ex.B.3 is the Miscellaneous Accident Insurance Policy issued in favour of the insured first respondent/first defendant by the second respondent/ second defendant Insurance Company. In this document the period of insurance is described as 12 months beginning from 12.11.88 to 11.11.89. The limit of liability of the Insurance Company under any one claim is restricted to Rs.5 lakhs. Moreover, in Ex.B.3 Policy a limit of liability of the Insurance Company under any claim during the policy year is described as Rs.10 lakhs. The premium is Rs.81 (after deducting 35% sd Rs.44). The policy number is shows as 4671120100106 and above that 711201/926/37056 is seen. In Ex.B.3 Insurance Policy at page 2 under the head 'DOCTORS INDEMNITY INSURANCE (D.I.I. Clause) it is mentioned as follows:
"Subject to and in consideration of the payment to the Company of the premium stated in the Schedule hereto "the Company" during the period specified in the schedule or during any other period for which the Company may accept payment for the renewal of the policy and subject to the terms, provisions, exclusions and conditions contained herein or endorsed or otherwise expressed herein indemnify the Insured against such sums not exceeding the limits stated in the Schedule hereto which the Insured shall become legally liable to pay for compensation by reason of any claim made against the Insured or damages as a result of accidental bodily injury sustained during the said period directly and solely caused by the negligence omissions or error wherever the same was or may have been committed by the Insured personally in his professional capacity as a medical practitioner or by anybody else acting on his behalf, more particularly described in the schedule hereto.
PROVIDED THAT:
(1)The negligence, omissions or error has been committed in the Union of India (2)In addition to compensation as above the Company agree that in the event of the Company requiring any claim to be contested by the Insured the Company will pay all costs, charges and expenses in connection therewith; provided further that if the claims be successfully resisted by the Insured the Company will pay all costs, charges and expenses incurred by the insured in connection therewith upto but not exceeding the sum insured under this policy.
(3)At any time after the happening of any event giving rise to a claim or series of claims under this Policy the Company may pay to the insured the full amount of the company's liability and relinquish the conduct of any defence settlement or proceedings and the Company shall not be responsible for any damage alleged to have been caused to be Insured in consequence of any action or omission of the Company in connection with such defence settlement or proceedings or of the Company relinquishing such conduct; not shall the Company be liable for any costs, charges and expenses whatsoever incurred by the Insured or any claimant or other person after the Company shall have relinquished such conduct.
(4)If any claim under this policy is covered in Whole or part by other Insurance the liability of the Company shall be limited to their ratable proportion of such claim.
(5)There shall be no liability hereunder in respect of any claim made against the insured arising out of any negligent act, error or omission committed or alleged to have been committed prior to the Commencement or after expiry of insurance under this policy.
The Company will always have the right to take over the conduct of the defence of any proceedings filed against the insured before the Medical Council or before any State Medical Council or any criminal proceedings filed against the Doctor provided that such proceedings are directly or indirectly connected with any act, omission, negligence or error committed by the insured personally in his professional capacity as a medical practitioner or anybody else acting on his behalf and the Company will bear all costs, charges and expenses in connection with the defence of any such proceedings."
Significantly, In Ex.B.3 policy the General Exclusions Clause (e) speaks of 'The insured's acts of commission or omission as a private individual'.
43.Ex.B.4 is the Provisional Indemnity Policy For Doctors and Medical Practitioners issued by the second respondent/second defendant Insurance Company in favour of the first respondent/first defendant. In Ex.B.4 the Indemnity Clause enjoins as follows:
"The Indemnity applied only to claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, omission or negligence in professional service rendered or which should have been rendered by the Insured or qualified assistants named in the Schedule or any nurse or technician employed by the Insured(hereinafter to as the 'Act').
PROVIDED ALWAYS THAT
(a)such Act during the period of Insurance results in a claim being first made in writing against the Insured during the Policy period as stated in the Schedule.
(b)There shall be no liability hereunder for any claim made against the insured for act committed or alleged to have been committed prior to the Rectroactive Date specified in the Schedule.
For the purpose of determining the Indemnity granted
(a)'Policy period' means the period commencing from twelve midnight following the date of acceptance of risk and payment of the premium and terminating at midnight on the expiry date as shown in the Policy Schedule.
(b)'Period of Insurance' means the period commencing from the retroactive date and terminating on the expiry date as shown in the Policy Schedule.
(c)'Bodily Injury' means death, injury, illness or disease of or to any person."
44.Generally speaking, a Doctor is responsible for treatment given and also for actions in administering such treatment by his employees who did so under his direction and supervision and is vicariously liable for their actions. Individuals who run hospital are in law under the self-same duty as the humblest doctor, in the considered opinion of this Court. Whenever they accept a patient for treatment, they must use reasonable care and skill to ease him of ailment. The Hospital Authorities cannot, of course do it by themselves and must do it by the staff which they employ and if their staff or agents are negligent in providing the treatment, they are just as liable for that negligence as any one else who employs others to do his duties for him.
45.The term 'vicarious liability' means substitute or indirect responsibility of. The Hospital Authorities are not only responsible for the fault of their employees, nurses, doctors but also for anaesthetists and surgeons. It does not matter whether they are permanent or temporary, resident or visiting, whole time or part time and the Hospital Authorities are usually held responsible for all of them for the reason even if they are not their employees, they are the agents of the hospitals to give the treatment.
46.The learned counsel for the appellants submits that since the first appellant/first plaintiff (child) has been suffering from Bronchitis and as such, the Surgical Operation should not have been carried out by the first respondent/first defendant and after the operation on 4.4.89, the child has remained in the first respondent/first defendant's nursing home for 12 days and further that after the operation the child has lost eye sight and his neck has fallen down and that the first respondent/first defendant never disclosed the appellants about the condition of the child and in fact, the first respondent/first defendant has kept the child in his nursing home under observation for 12 days and while administering anaesthesia to the first appellant/first plaintiff, proper care has not been taken and because of the lack of flow of oxygen the child's entire nervous system has been affected and the Opthalmologist at the Coimbatore Medical Hospital has stated that the first appellant/first plaintiff has lost the eye sight and moreover, the child has become a mental retarded person and in short, the first appellant/first plaintiff (child) has lost his eye sight and suffered other disabilities because of the negligence of the first respondent/first defendant who performed the operation and the first appellant/first plaintiff (child) has died in the year 2007 and there is no record to show that the first appellant/first plaintiff-child has been a Grade IV Risk Factor Patient and added further, the trial Court has not agreed to Ex.C.1 Special Medical Board Report dated 29.03.2000 and the decision to perform the operation on the child has been taken by the first respondent/first defendant and in fact, the trial Court in para 12 of its judgment has among other things observed that only on 3.10.1991 the second appellant/second plaintiff has issued lawyer's notice to the first respondent/first defendant for the first time after a delay (although on 4.4.89, the date on which the surgical operation has been performed on the child within 20 days from the date of operation the second appellant/ second plaintiff has known that the first appellant/first plaintiff has lost its eye sight) and the trial Court has also come to the conclusion that on the side of appellants/plaintiffs, there is no proper, oral and documentary evidence to show that the child has been possessing proper eye sight before the operation and in short, has held that the appellants/plaintiffs have not proved that the first appellant/first plaintiff-child has lost its eye sight due to the negligence of the first respondent/first defendant, but the trial Court has granted an ex gratia of Rs.1 lakh to the first appellant/first plaintiff-child taking into account of the fact that there is no improvement on the health of the first appellant/first plaintiff and also bearing in mind the brain of the first appellant/first plaintiff-child has been affected coupled with the loss of eye sight and therefore, the award of Rs.1 lakh by the trial Court is clearly unsustainable, in the eye of law.
47.As far as the present case is concerned, the fact that the first appellant/first plaintiff-child has been admitted in the first respondent/first defendant's nursing home as an inpatient on 3.4.89 is not disputed. Also the fact remains that on 28.2.89 the first appellant/first plaintiff-child has been treated at the first respondent/ first defendant's nursing home as an outpatient for chest pain and again the first appellant/first plaintiff-child has been brought for treatment for a complaint of fever and phlegm on 31.3.89. On 3.4.89 before the child has been admitted as an inpatient at the nursing home, the child has been referred to a child Specialist Dr.Manonmani and the said child Specialist has referred the first appellant/first plaintiff-child back to the first respondent/first defendant as per Ex.A.4-medical prescription. In Ex.A.4-medical chit in respect of the first appellant/first plaintiff-child Dr.Manonmani has mentioned that there is mass in abdomen (left) and intussusception ... Bronchitis and also observed loose stools with blood and mucous etc.
48.It is the specific evidence of D.W.1 (first respondent/first defendant) that the first appellant/first plaintiff-child has to be necessarily surgically operated at that date and if the operation is not to be performed then the life of the child will be in at stake and that he has performed the surgical operation on the child, on the morning of 4.4.89. As a matter of fact, the evidence of D.W.1 is to the effect that there has been a risk in regard to the performance of the surgical operation and he has informed about the risk to the parents of the child and if surgical operation on 4.4.89 has not been performed on the child then the child might have died and that the child has been discharged on 16.4.89 from the nursing home. It is to be pointed out that in Ex.A.5 discharge card in respect of the first appellant/first plaintiff (child) it is lastly mentioned as follows:
'CS7 analysis - was normal Baby improved and took oral feeds. Does not keep the neck steady.
To review after 1 week.' Therefore, it is quite evident from Ex.A.5 discharge card that the first appellant/first plaintiff-child has not been keeping the neck steady. Significantly, in Ex.A.5 discharge card it is mentioned that on 4.4.89 that the first appellant/first plaintiff-child had 'Respiratory Depression' had fever and seizures. Also in Ex.A.5 it is mentioned that the child O/E. Dehydrated, drowsy RS crepts + wheeze + and PA: has a mass in the suprapubic region etc. Therefore, the fact that the child has complaint of wheezing, dehydration on 3.4.89 is seen from Ex.A.5-discharge card and further, the child has a mass in the suprapubic region. Even on 4.4.89 the first appellant/first plaintiff has been under respiratory depression' and fever and seizures.
49.D.W.2-Anaesthesiologist who has administered anaesthesia to the first appellant/first plaintiff-child has deposed before the trial Court that she has come to know about the health condition of the child before administering anaesthesia and she has consulted D.W.1 (first respondent/first defendant) about the health condition of the child and at that time, the health condition of the child has been in a bad state and that the child has to be surgically immediately operated upon in the abdomen region and apart from the stomach problem the first appellant/first plaintiff-child has the complaint of chest phlegm, respiratory problem like Asthma and further the child has been in a drowsy state and necessary oxygen has been given to the first appellant/first plaintiff-child but the intake of oxygen might have been in lesser quantity and after the surgery she has not seen the child and moreover, before administering anaesthesia to the child, since the child has chest phlegm and has been in a drowsy state his condition has not been in satisfactory state and because of the breathing problem of the child, the corbondioxide might not have gone out and as such, the child has been in drowsy state i.e. would have lost consciousness and that she has not been in the habit of keeping notes in regard to the administration of anaesthesia and furthermore, even after the completion of surgical operation, the child has been suffering from breathing problem.
50.Indeed, apart from the evidence of D.W.1 and D.W.2 the evidence of P.W.3 is to the effect that an emergency surgical operation has been performed on the first appellant/first plaintiff. Added further, the evidence of P.W.5 is that at the time of the conduct of surgical operation on the first appellant/first plaintiff-child, it has remained as a 'Risk Patient' and therefore, from the evidences of the aforesaid witnesses, this Court comes to the inevitable conclusion that the first respondent/first defendant has been right in his decision to undertake/perform the surgical operation on 4.4.89 on the first appellant/first plaintiff- Grade IV Risk Factor child, in view of its prevailing condition and answered accordingly.
51.Admittedly, it is D.W.1 (first respondent/first defendant) has performed the surgical operation o the first appellant/first plaintiff-child on 4.4.89 at his nursing home. Equally, D.W.2-Anaesthesiologist has administered the anaesthesia to the first appellant/first plaintiff-child. The evidence of D.W.1 (first respondent/first defendant) is to the effect that there has been no negligence either in regard to the treatment or in regard to the conduct of surgical operation on the first appellant/first plaintiff-child and in fact, D.W.1 has stated that it is wrong to state that because of negligence in regard to the conduct of surgical operation, the first appellant/first plaintiff-child has lost its eye sight and therefore, he is to pay the compensation.
52.Moreover, D.W.2-Anaesthesiologist in her evidence has stated that it is wrong to state that the first appellant/first plaintiff-child has been affected because of the fact that in regard to the conduct of surgical operation that anaesthesia has not been administered properly. D.W.2-Anaesthesiologist has not been arrayed as one of the defendants in the suit filed by the appellants/plaintiffs before the trial Court. At this stage, it is useful to refer to the evidence of P.W.3 to the effect that since the first appellant/first plaintiff-child has suffered Fever, Chest Pain and Fits, the oxygen supply to the brain has been reduced or stopped. But the child's brain has been affected and 10 days later the child has been discharged from the nursing home and after that they have seen the child at the time of their examination as per Ex.C.1-Special Medical Board Report and in their final examination as per Ex.C.1-Report they have stated that the child has been mentally retarded and is incapable of independent living, requiring continuous support by attenders and further not able to do his normal work by himself and Ex.A.5-medical card the detail regarding the child's head not standing steady has been mentioned and the damage sustained by the first appellant/first plaintiff-child cannot be cured. P.W.3 in his cross examination has specifically stated that the child's brain might have been affected due to insufficient inflow of oxygen supply and because of the brain damage sustained by the first appellant/first plaintiff-child the vision of the child has been affected.
53.Besides above, it is apt to quote the evidence of P.W.4 to the effect that because of insufficient inflow of oxygen supplied to the child's brain, the brain and body developments have been 100% affected and in Ex.C.1-report dated 29.3.2000 he has given his opinion secondly as Neurologist to the effect that the child has ? Hypoxic Encephalopathy global causing both mental & physical disability 100% and EEG shows Sub Cortical seizure activity and as per CT Scan, Enlarged III & lateral, Ventricle, Cortical atrophy and further in his cross examination has stated the reason for child's brain damage is due to the less oxygen. Continuing further, P.W.5 in his evidence has stated that on 20.03.2000 he has seen the first appellant/ first plaintiff-child and in Ex.C.1-report an Anaesthesiologist has given his opinion thirdly that 'the Child is profoundly mentally retarded needs continuous physical help, his physical status is totally dependent on his attenders and on his examination of the child he has come to know that there is no improvement in the mental condition of the child and that the child cannot do his works independently and that the child has to depend on others help and moreover, in his cross examination has stated that if the inflow of oxygen is not proper then the nervous system of a patient will be affected.
54.It is to be borne in mind that a doctor cannot be held negligent simply because something goes wrong but he is certainly responsible if he falls short of standard of reasonably skillful medical practice, in the considered opinion of this Court. No doubt, the doctor holding out ready to provide treatment does undertake that he is possessed of skill and knowledge for that purpose. The doctor must therefore bring to his task a reasonable degree of skill and knowledge and must also exercise reasonable degree of care as per decision Venkatesa Iyer V. Bombay Hospital Trust, 1998 (2) TAC 820 Bom. It is true that a Surgeon or Doctor does not undertake that he will positively cure a patient nor does he undertake to use the highest possible degree of skill, as there may be persons more learned and skilled than himself, but he definitely undertakes to use a fair, reasonable and competent degree of skill and this implied undertaking forms the real test.
55.In the instant case, that it is the specific evidence of P.W.1/ second appellant/second plaintiff (father of child) that after the surgical operation conducted by the first respondent/first defendant on 4.4.89 on the first appellant/first plaintiff the neck of the first appellant/first plaintiff-child has not been standing steady and there is loss of vision and the child has been affected with fever and fits and these complications have been informed to the first respondent/ first defendant has discharged the first appellant/first plaintiff-child from his nursing home on 16.4.89 and even though, medicines have been given to the first appellant/first plaintiff-child as instructed by the first respondent/first defendant, still the first appellant/first plaintiff-child has not recovered. As against this categorical evidence of P.W.1(second appellant/second plaintiff), there are no convincing and satisfactory reasons assigned or adduced on the side of respondents/defendants to rebut the same. In short, the evidence of P.W.1 viz., father of the child is quite cogent and convincing to the effect that the first appellant/first plaintiff-child after the surgical operation on 4.4.89 has lost its eye vision and the child's neck has not been standing steady and it has been affected with fever and fits. To say the least, the evidence of P.W.1 is unimpeachable one and the same has not been shakened or satisfactorily displaced on the side of respondents/ defendants. Further, as to how the first appellant/first plaintiff-child has lost his vision after surgical operation on 4.4.89 and as to why his neck has not been standing steady etc. have not been answered in a reasonable, acceptable and convincing fashion to the satisfaction of this Court.
56.Added further, in the written statement of first respondent/ first defendant, nowhere it is mentioned that the first appellant/first plaintiff-child at the time of its admission on 3.4.89 in the first respondent/first defendant's nursing home has come to the nursing home with loss of vision in the eyes as a blind child. However, the first respondent/first defendant has denied in paragraph 8 of the written statement that the child has lost his vision due to abdominal surgery performed by him.
57.In this background, it is useful to refer to Ex.A.7-letter dated 22.5.89 given by N.Radhakrishnan, Assistant Professor of Opthalmology, Medical College Hospital, Coimbatore addressed to Dr.Venkataraman, Neurologist wherein it is mentioned that '.. the Child Ganesh 8 = yrs with H/o total loss of vision with eyes following some abdominal surgery' and it is also mentioned that there is no evidence of optic atrophy and further in the concluding portion of the said letter it is mentioned that 'so I think blindness is due to cortical damage.' As far as the present case is concerned, the evidence of witnesses P.W.3 to P.W.5 coupled with Ex.A.7-letter dated 22.5.89 of Dr.N.Radhakrishnan and Ex.C.1-Special Medical Board Report dated 29.3.2000 point out in definite and in unequivocal terms that the first respondent/first defendant and D.W.2-Anaesthesiologist have not conformed to the required standard of care in regard to the conduct of surgical operation and administering anaesthesia resulting in material injury to the first appellant/first plaintiff-child affecting the brain, causing blindness and not able to do normal activity by himself etc. and therefore, there is clearly a proximate connection between their acts/conduct and the resultant injury/disability giving rise to cause of action for their negligence, in the considered opinion of this Court. Moreover, as per
Section 106 of the Indian Evidence Act, D.W.1 and D.W.2 will have to prove the facts especially within their knowledge touching the abdomen surgical operation performed on 4.4.89 and the administration of anaesthesia etc. in respect of the first appellant/first plaintiff-child but the burden of proving the same has not been discharged. Also D.W.2-Anaesthesiologist deposing in her evidence has stated that she is not in the habit of taking notes in regard to the administration of anaesthesia is not a favourable circumstance in favour of the respondents/defendants.
58.It is to be noted that D.W.2-Anaesthesiologist has not been arrayed as one of the defendants in the suit before the trial Court. Generally speaking, an Anaesthesiologist who administers anaesthesia in the process of a surgical operation is as much liable as the main Surgeon if the Anaesthetist's negligence is established even if her services have not been hired directly by the patient or his agent as the case may be. Further, in the present case, the surgical operation on the first appellant/first plaintiff has been performed by D.W.1 (first respondent/first defendant) and that D.W.2-Anaesthesiologist has come to know about the health condition of the child for the purpose of administering anaesthesia and it is the categorical evidence of D.W.2 that the first respondent/first defendant has informed her that a surgical operation has to be performed on the first appellant/first plaintiff-child and that in regard to the health condition of the child, she has consulted the first respondent/first defendant. Therefore, it is quite evident that the first respondent/first defendant is responsible in regard to the conduct of the surgery operation and also for the action of D.W.2-Anaesthesiologist in administering anaesthesia to the first appellant/first plaintiff-child and as a matter of fact, the surgical operation on the first appellant/first plaintiff-child has been performed by the first respondent/first defendant and also for the action in regard to the administering of anaesthesia by D.W.2, the first respondent/ first defendant is vicariously liable for such action, in the considered opinion of this Court.
59.Even though a plea is taken on behalf of the respondents/defendants that the appellants/plaintiffs have issued a lawyer's notice dated 03.10.1991 belatedly after a lapse of 2 = years from the date of operation on 4.4.89., it is to be pointed out that the issuance of notice Ex.A.7-lawyer's notice dated 3.10.1991 is not fatal to the case of the appellants/plaintiffs taking into account of the facts and circumstances of the case wherein the first appellant/ first plaintiff-child has been affected with loss of eye sight, mental retardedness and not in a position to independently act himself etc. The appellants/plaintiffs have filed the suit before the trial Court claiming damages on 24.1.1992, within three years from the date of the conduct of surgical operation on 4.4.89 and therefore, the suit is not barred by limitation, as opined by this Court.
60.Suffice it for this Court to point out that in view of the qualitative and quantitative discussions mentioned supra and on an appreciation of oral and documentary evidence available on record in the present case, this Court comes to the resultant conclusion that the first respondent/first defendant and D.W.2-Anaesthesiologist have failed to conform to the required standard of care in regard to the conduct of surgical operation and administering anaesthesia to the first appellant/first plaintiff-child on 4.4.89 at the first respondent/first defendant's nursing home and therefore, the first respondent/first defendant is not only liable for himself but also is liable for the act of D.W.2-Anaesthesiologist, who has administered anaesthesia to the first appellant/first plaintiff-child and the points are answered accordingly. However, the observation of the trial Court in its judgment that because of negligence of the first respondent/ first defendant that the first appellant/first plaintiff-child has lost his eye sight has not been proved and the further observation that because of the negligence of D.W.2 in regard to the administration of anaesthesia the first appellant/first plaintiff-child has been affected has not been proved on the side of the appellants/plaintiffs, are not correct in the eye of law.
61.The stand of the first respondent/first defendant is that he has taken Ex.B.3-Miscellaneous Accident Insurance Policy with the second respondent/second defendant Insurance Company and that the policy is valid for a period of 12 months from 12.11.88 to 11.11.89 and therefore, the said policy will cover the liability that might arise in his professional practice and therefore, the second respondent/second defendant is liable to pay the compensation to the appellants/plaintiffs. At this stage, it is to be pointed out that Ex.B.3-policy in the name of insured viz. first respondent/first defendant limits the liability of the second respondent/second defendant under any one claim to a sum of Rs.5 lakhs and further, the said policy speaks of the limit of the liability of the company under any claim during the policy year to a sum of Rs.10 lakhs. In Ex.B.3-policy the indemnity clause inter alia mentions that the second respondent/second defendant Insurance Company will be liable solely caused by the negligence, omissions or error wherever the same was or may have been committed by the insured personally in his professional capacity as a medical practitioner or by anybody else acting on his behalf more particularly described in the schedule hereto. Therefore, in the present case, as per Ex.B.3-policy the second respondent /second defendant Insurance Company is liable to pay compensation for the negligence of the first respondent/ first defendant. Though it is contended on behalf of the second respondent/second defendant Insurance Company that Ex.B.3-policy does not cover any negligent act of D.W.2-Anaesthesiologist, a reading of Ex.B.3-policy clause shows in unambiguous terms that even for the negligence, omissions or error of a person acting on behalf of the first respondent/first defendant, the second respondent/ second defendant is liable and in the instant case, D.W.2-Anaesthesiologist has acted as an agent of the Dr. Sengaliappan Nursing Home (first respondent/first defendant) in administering anaesthesia to the first appellant/first plaintiff-child on the date of surgical operation viz., on 4.4.89 and therefore, the liability of the second respondent /second defendant Insurance Company is not absolved because of the fact that the first respondent/first defendant's professional practice liability is covered under the policy-Ex.B.3.
62.The appellants/plaintiffs have made a claim of compensation of Rs.5 lakhs with future interest in respect of the first appellant/first plaintiff-child and they have claimed another sum of Rs.2 lakhs with future interest.
63.In regard to the award of compensation/damages, it is to be pointed out that it is the duty of a Court of Law to award as perfect a sum as is within its power. Indeed, the damages awarded ought to be a sensible and fair one, money can be awarded so that something tangible may be procured to replace of like nature which has been destroyed or lost. But certainly money cannot renew a physical frame of the first appellant/first plaintiff-child (since deceased) that has been battered and shattered, in the considered opinion of this Court. The life of a Homo-sapien is certainly uncertain or of sufferings or like the beauty of sun rise or the splendour of stars, beyond the purview of a monetary yardstick. Indeed, a man's life cannot be measured in terms of money with mathematical precision. In the instant case on hand, the first appellant/first plaintiff-child as per Ex.C.1-report has become a profoundly mentally retarded person, who needs continuous physical help, his physical status is totally dependent on his attenders and he is incapable of independent living etc. and it is also brought to the notice of this Court that the first appellant/first plaintiff-child has died in the year 2007.
64.Since the first appellant/first plaintiff-child (since deceased) has suffered loss of vision, mental retardedness etc. and because of the fact that the parents have also undergone mental agony, despair, helplessness and destitution till the death of the first appellant/first plaintiff-child in 2007, on an overall assessment of the facts and circumstances of the case in a cumulative manner and on an objective fashion, this Court awards a sum of Rs.5,00,000/- (Rupees Five lakhs only) in all as damages/compensation as an equitable fair sum (even as a matter of prudence) to the first appellant/first plaintiff-child (less a sum of Rs.1,00,000/- already deposited and withdrawn by the appellants) payable by the second respondent/ second defendant Insurance Company for and on behalf of the first respondent/first defendant (insured). In regard to the claim of Rs.2,00,000/- with future interest made by the second appellant/ second plaintiff, the same is rejected by this Court since this Court has awarded a sum of Rs.5,00,000/- in all to the first appellant/first plaintiff-child. However, this Court exercising its judicial discretion is not awarding any interest to the aforesaid amount of Rs.5 lakhs based on the facts and circumstances of the case. Earlier, this Court has permitted the petitioners/appellants 2 and 3 to withdraw a sum of Rs.1,00,000/- as awarded by the trial Court as ex gratia compensation as per order dated 17.02.2003 passed in C.M.P.No.1078 of 2003 and therefore, the second respondent/second defendant Insurance Company is directed to deposit the balance sum of Rs.4,00,000/- before the trial Court to the credit of the suit O.S.No.1452 of 1992 on the file of the II Additional Subordinate Judge, Coimbatore within a period of two months from the date of receipt of copy of this order and the appellants 2 and 3 are entitled to claim the aforesaid amount in equal proportions. On such deposit being so made by the second respondent/second defendant Insurance Company, the appellants (parents of the first appellant/first defendant-child) are at liberty to file necessary payment out application claiming their respective share amounts in the manner known to law as per Civil Rules of Practice and the trial Court is directed to dispose of the said applications in accordance with law after providing due opportunities to the respective parties as the case may be and resultantly, the appeal is allowed in above terms.
65.For the foregoing reasons, the Appeal is allowed without costs. Consequently, the decree and judgment of the trial Court dated 09.03.2001 in O.S.No.1452 of 1992 are modified to the extent indicated in this judgment in appeal. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs in this Appeal proceedings.
13.10.2009 Index : Yes Internet : Yes sgl M.VENUGOPAL, J. Sgl To II Additional Subordinate Judge, Coimbatore. Judgment in A.S.No.147 of 2002 13.10.2009