Liability of State for negligence of doctors proved.

The Judgment was delivered by :

Defendants 3 and 4 in O.S. No. 46 of 1993, on the file of Sub Court, Sivagangai, are the appellants herein.

2. Parties hereinafter will be referred to according to their rank in the suit.

3. Material facts which are necessary for proper disposal of the second appeal could be summarised thus :-

First plaintiff is the husband, and plaintiffs 2 to 4 are the children of late Panchavarnam, who died on 3-1-1990. Plaintiffs allege that late Panchavarnam gave birth to the fourth plaintiff on 4-12-1989. Second defendant in the suit, who is a motivator to encourage birth control operations, persuaded Panchavarnam to have family planning operation, and she was admitted at Paganeri Government Hospital. On 14-12-1989, i.e. ten days after the delivery, Panchavarnam was operated. Plaintiffs allege that on the same day, she was discharged from the hospital without being given any instructions regarding the follow-up action, and within two days, Pancha-varnam felt some pain in her abdomen. She was taken to the nearby Primary Health Centre. After two days, she was asked to leave the hospital. Again, when she went back to the house, she complained of pain, and at that time, the second defendant, who is not qualified even as a Nurse, removed the stitches in the house, even without taking any Preliminary precautions. Thereafter also, the pain did not subside, and, therefore, she was taken to the hospital, and finally, on the advice of the first defendant, she was taken to the Madurai District Hospital on 22-12-1989. Eventhough good treatment was given, she died on 3-1-1990. According to plaintiffs, the death of Panchavarnam was caused due to medical negligence. First defendant who operated Panchavarnam was not careful enough to give necessary instructions to the patient, and she also allowed the second defendant to remove the stitches. Panchavarnam was not given proper care. Only due to the negligence of the defendants 1 and 2, Panchavarnam died.

4. All the defendants disputed the claim of plaintiff, and contended that they have exercised the skill expected of them, and there was no negligence on their part.

5. Trial Court took elaborate evidence. Exx. A-1 to A-10 were marked on the side of plaintiffs, and first plaintiff was examined as P.W. 1. On the side of defendants, Exx. B-1 to B-12 were marked. D.Ws. 1 to 4 were examined on their side.

6. Trial Court, mainly relying on the evidence of D.W. 3, another medical practitioner, held that much care was not taken on Panchavarnam, as was expected from a medical practitioner, and the post-operation treatment was also not proper. It found that there was negligence on the part of defendants 1 and 2. The appellants herein were also made liable on the principle of vicarious liability. All the defendants were made liable jointly and severally. It held that the plaintiffs are entitled to get a compensation of Rs. 40, 000/-. Costs were also allowed.

7. Against the said judgment, two appeals were preferred before the lower appellate Court. Defendants 1 and 2 filed an appeal as A.S. 1 of 1997 and defendants 3 and 4 separately filed an appeal as A.S. No. 14 of 1997. The lower appellate Court dismissed both the Appeals with costs.

8. This Second Appeal is filed only by defendants 3 and 4, who were found liable on the principle of vicarious liability. The other defendants have not preferred any appeal.

9. Notice of motion was ordered, and respondents (plaintiffs) entered appearance through Counsel.

10. I heard both sides, and the concerned records were also called for.

11. The following substantial questions of law have been raised in the memorandum of grounds :-

"1) Whether the Courts below are correct in holding that the death occurred due to the negligence in carrying out the operation?

and

2) Whether the plaintiffs are entitled for the relief claimed in the suit?"

12. According to me, appellants are not entitled to challenge the finding regarding negligence when defendants 1 and