SANTHAMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) Plaintiff is the appellant. Her suit for damages, imputing medical negligence against third respondent, a doctor, who is stated to be no more, in conducting of laparoscopic sterilisation surgery to her, with the State and the Director of Health Services as co-defendants, after trial, was dismissed by learned Sub Judge, Pala. In the appeal challenging that decree, notice ordered to the third respondent was returned with the endorsement 'no such person'. Appellant thereupon filed a petition, I.A. No. 524 of 2013 for deleting third respondent from the party array stating that on enquiry she found that the third respondent retired from service and later he had passed away. His legal heirs could not be traced out and, therefore, that respondent be deleted, was the request of appellant. That application was allowed by order dated 11/03/2013. The question that arises for consideration now is whether the appellant could still prosecute the appeal and sustain her claim for damages against the State and the second respondent. Those respondents, at best, have only vicarious liability over the acts done by third respondent, doctor, in the alleged negligence imputed over the surgery conducted on appellant. Suit, after trial, had been dismissed against all defendants, and thereupon a vested right against the claim made, had accrued in favour of all of them, including third respondent. When the claim against third respondent is given up seeking his deletion reporting he is dead and where his legal representatives are not impleaded, appellant cannot ask for fixing liability on the other respondents, State and the Director of Health Services. [See Gopala Pillai v. Chellappan Pillai, 1966 AIR(Ker) 317 and Ammukutty Amma and Another v. Madhavi Amma, 1971 AIR(Ker) 90] Appeal, therefore, has only to be dismissed as not maintainable. Considering the facts and circumstances of the case that the appeal has been filed by the appellant as an indigent person, there will be an order relieving her from the liability to pay court-fee on the appeal.