USHA Vs. G P NAMBOODIRI

JUDGEMENT

(1.) The appellant, a girl aged about 12 years, the daughter of a driver in the service of the 2nd respondent, the Kerala State Electricity Board, at Idukki sustained injuries due to a fall from a moving bus at about 9-15 a.m. on 12-10-1970. She was immediately rushed to the Chief Engineer's Colony Hospital, Idukki run by the 2nd respondent K.S.E. Board. The 1st respondent, the Medical Officer in charge of the Hospital, attended on the patient. His report Ext. B1(a) shows the nature of the injuries sustained by the appellant. She had a fracture on the left tibia besides other minor injuries. She was hospitalised and her injured leg was immobilised by a plaster cast extending from mid-thigh to the ankle. Ext. B2 dated 12-10-1970 shows the treatment given to the patient on her admission in the hospital. The wounds were sutured, a plaster cast was put and she was given penicillin injection and glucose saline drip On 14-10-1970 the patient complained of severe pain on the leg; she was given sedatives. Since the pain did not abate, she was discharged from the hospital on 15-10-1970 referring her case to the General Hospital, Ernakulam. The appellant was brought to the Lissie Hospital at Ernakulam on 15-10-1970. pw. 4, the Doctor in charge of the Orthopaedic section of the Lissie Hospital examined the patient and found that "the child was toxaemic and the leg was in plaster-cast and toes were swollen blue, immobile and anaesthetic". The plaster was removed immediately and it was found that there was no pulsation or any other evidence of blood supply to the foot and leg The patient was discharged from the Lissie Hospital on 16-10-1970 referring her case for treatment at the CMC Hospital, Vellore. The appellant was admitted in the CMC. Hospital on 17-10-1970. She was under the treatment of pw. 3, the Head of the Orthopaedic Surgery Unit of the Hospital. pw. 3 found that gangrene had set in and to save the life of the patient, her left leg was amputated below the knee on 19-10-1970. A further amputation above the knee had to be performed on 2-11-1970 to give the patient a suitable amputation stump for wearing an artificial leg. The patient was discharged from the C. M. C. Hospital on 20-11-1970. pw. 3 had diagnosed the case as post-traumatic gas gangrene.

(2.) The minor appellant represented by her father filed the suit for compensation Rs. 70,000/- for shortened expectation of life, pain and suffering, cost of treatment and the expenses for providing an artificial leg. The 1st defendant is the Medical Officer in charge of the Chief Engineer's Colony Hospital at Idukki and the 2nd respondent, K. S. E. Board, is his employer sought to be made liable in damages vicariously for the negligence of the first defendant Doctor in treating the plaintiff - appellant. The court below found that the plaintiff has failed to prove negligence and the suit was dismissed with the observation that the 2nd defendant K. S. E. Board should take a lenient view and give full reimbursement of the expenses incurred in the treatment of the plaintiff at the Lissie Hospital and at the C.M.C. Hospital, Vellore. The plaintiff appeals against the decision of the Trial Court that she has failed to establish negligence on the part of the 1st defendant in treating her.

(3.) In the Scottish case in Hunter v. Hanley, (1955) S. L. T. 213, the Lord President (Lord Clyde) stated at p. 217: