MARY Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is preferred by the plaintiffs against the judgment and decree in O.S. No. 320 of 1993 on the file of the Additional Sub Court, Kollam which was initially filed as O.P. (Indigent) No. 88 of 1991 before the Sub Court, Kollam. Through the original suit, the plaintiffs prayed for damages from the defendants on the ground of medical negligence committed by the 3rd defendant. In the plaint, the plaintiffs alleged that the 3rd defendant conducted a P.P.S. Operation (Tubectomy) on the first plaintiff under National Family Planning Scheme at the Primary Health Centre, Kundara. The first plaintiff is a poor cashew worker, who was the mother of three normal children at the time of the said P.P.S. operation conducted on 25.6.1985. The 1st plaintiff was assured by the 3rd defendant that the said operation was successful and that she would not become pregnant again. Moreover, she was given a certificate by the defendants that P.P.S. operation was conducted on her. But she became pregnant again and gave birth to the second plaintiff, who was a congenitally abnormal child.

(2.) The plaintiffs further averred in the plaint that the first plaintiff at the time of admission as an inpatient, enquired whether the third defendant who was a Medical Officer had the required degree of skill, knowledge and experience to successfully conduct a P.P.S. operation, but due to the failure to take reasonable care and also due to the failure to carry out the operation with the required degree of skill and knowledge, the operation was a failure. This was realised only when the first plaintiff became pregnant. The plaintiffs further stated that apart from congenital deformity of a child, the 2nd plaintiff is also suffering from chronic asthma, tuberculosis and broncho pneumonia with marasmus. The unwanted pregnancy of the first plaintiff resulted in her losing her job and the failure of the operation resulted not only in the unwanted pregnancy but also in the birth of a congenitally deformed child and the 1st plaintiff had expended huge amounts for medical treatment of both herself and her child. An amount of Rs. 50,000/- was claimed by the plaintiffs towards medical treatment and a further amount of Rs. 50,000/- was claimed as special damages being the damages for physical and mental suffering.

(3.) It was stated in the plaint that the 3rd defendant, who conducted the operation, and the 2nd defendant are both servants of the first defendant and that there is an employee-employer relationship between the first defendant and the other two defendants.