Sankarasubban.J :

These two appeals are preferred against the judgment and decree in O.S. No : 37 of 1982 on the file of the subordinate Judges Court, Kozhikode. A.S. No : 240 of 1991 is filed by the 6th defendant, while A.S. No : 513 of 1991 is filed by the defendants 1 to 3. The facts relevant for the purpose of the appeal areas follows :

2. The suit was filed for damages. The seventh plaintiff in the suit underwent an operation for tubectomy conducted by the sixth defendant on 11.09.1971 in the Government General Hospital, Calicut. The fifth defendant performed Anesthesia for the said purpose. After the operation, the seventh plaintiff did not regain consciousness even after so many days. The first plaintiff, the husband of the seventh plaintiff was under the hope that his wife would regain consciousness. It is stated that even today she remains unconscious. According to the plaintiffs, it is due to negligence of defendants 5 and 6 that the mishap occurred. At the time of operation, the seventh plaintiff was only 30 years of age. The said operation was on the 3rd day of the 4th delivery of the seventh plaintiff. Even now she is not able to recognise her newborn child.

3. The seventh plaintiff was an Auxiliary Nurse-cum-Midwife drawing a salary of Rs. 280/- as on 11.09.1971. As a result of the said operation, she could not rejoin service. She has been removed from service. The first plaintiff, the husband of the seventh plaintiff, has been financially ruined on account of the heavy expenditure incurred by him for the medical treatment of the seventh plaintiff. The sixth plaintiff, who is the sister of the seventh plaintiff is attending on the seventh plaintiff as she is not capable of doing anything. In the suit, the state of Kerala, The Secretary to the Government of Kerala, The Director of Health Services,Dr.B.Mukerjee, Associated Professor, I.M.C.H., Medical College, Calicut, Dr.C.V.Pathi, Anesthesia Specialist, Government General Hospital, Calicut and Dr. Miss.Gourikutty, S.A.T. Hospital, Trivandrum, who performed the operation were made parties.

4. Compensation was claimed from all the defendants as they jointly and severely liable on account of the negligence of defendants 5 and 6. An amount of Rs. 10,00,000 was claimed as compensation.

5. In the case, the defendants 1 and 3 filed a written statement contending that the claim made by the plaintiffs is exorbitant and unreasonable. The operation was performed at the request of the seventh plaintiff. It is not due to the negligence of defendants 5 and 6 that she did not regain consciousness. There was no negligence on the part of defendants 5 and 6. During the time of operation, some unfortunate and unforeseen complications arose, which were beyond all human and medical control resulting in the continued unconsciousness. The Medical Board constituted by the Government enquired into the matter. On examination, the Medical Board found that the seventh plaintiff has a cardiac arrest following the P.P.S operation. It was found that it was an unforeseen accident which unfortunately happened on the table by which the patient sustained some irreparable brain damage as a result of brain anoxia. She continued in the same unconscious condition for the next 42 days in spite of all efforts made to regain consciousness. She was given all attendance and expert treatment in the Medical College Hospital, Kozhoikode. She was taken to Medical College Hospital, Trivandrum at the Government expense and given all possible and available treatment. The Superintendent of Mental Hospital, Trivandrum also certified that she had developed dementia as a result of prolonged cerebral anoxia and that she is totally and permanently incapacitated to do work of Auxiliary Nurse cum Midwife. The seventh plaintiff was given all treatments at the expense of the State. She was granted earned leave for 59 days and half pay leave for 61 days. Ex-gratia allowance equal to half of her pay from 5.8.1972 to 4