P NARASIMHA RAO Vs. G JAYA PRAKASH

JUDGEMENT

(1.) The two appeals and the cross objections arise out of the judgmentof the learned First Additional District Judge, Guntur in O.S.No. 34 of 1969 granting a decree for Rs. 22,000/- in favour of the plaintiff towards damages for performing tonsillectomy operation on the plaintiff in a careless and negligent manner. The second defendant Dr. P. Narasimha Rao was the E.N.T. Surgeon who performed the tonsillectomy operation upon the plaintiff at the Government General Hospital, Guntur and the third defendant Dr. S. Shankar Rao was the Chief Anaesthetist of the Hospital who adminitered anaesthetics at the time of the operation. The first defendant is the Government of Andhra Pradesh represented by the District Collector, Guntur who according to the plaintiff is vicariously liable for damages since the alleged act of negligence was committed by the defendants 2 and 3 in the course of discharging their duties as employees of the State Government.

(2.) The plaintiff was a brilliant youngster aged 17 years in 1966 whenhe passed the P.U.C. (Pre University Course) examination securing 100% in Mathematics and 93.5% in Physical Sciences. He was a State Government merit scholor getting a monthly scholorship of Rs. 100/-. He was offered a seat in B.E. Degree course in four Engineering Colleges both within and out side the State of Andhra Pradesh. He had a minor ailment chronic nasal discharge for which his mother took him to the second defendant Dr. Narasimha Rao lor consultation. The plaintiff's father at that time was working as Senior Officer at Nagpur in the service of the Central Government. The second defendant diagnosed the disease as Nasal Allergy and suggested operation for removal of tonsils. On 6-7-66 the plaintiff was admitted in the Government General Hospital, Guntur and the operation was performed on the morning of 7-7-66. His father came down to Guntur to be present at the time of the operation. None of the relations of the plaintiff including his father were allowed to be present inside the operation theatre and so what happened in the operation theatre at the time of the operation was within the exclusive knowledge of defendants 2 and 3. About one and half hours after the plaintiff was taken inside the operation theatre, he was brought out in an unconscious state and the doctors informed the plaintiff's father that he would regain consciousness within three or four hours. The plaintiff was kept in the E.N.T. Ward of the hospital. For the next three days he did not regain consciousness and thereafter for another fifteen days he was not able to speak coherently. The treatment was entrusted to two other doctors of the same hospital Dr. Mallikarjuna Rao, Physician and Dr. Suryanarayana, Psychiatrist. He was discharged from the Hospital on 28-8-66 and his condition at ths time of the discharge was that he was just able to recognise the persons around and utter a few words. He could not even read or write numericals. He lost all the knowledge and learning acquired by him. Greatly upset by the condition of the plaintiff his father took him to Vellore where he was examined by P.W-1 Dr. K V. Mathai, Professor of Neuro Surgery, Christian Medical College Hospital, Vellore. After conducting neurological examination and after studying the csse history, on 21-11-66 Dr. Mathai gave a written opinion Ex. A-1 stating that the plaintiff had cerebral damage and his intellectual ability was that of a boy of five years age in relation to calculations, reading and understanding. The plaintiff was then taken to Bangalore where he was exmined by Dr. S.A. Ansari, Assistant Professor of Psychiatry at the Indian Institute of Medical Health on 28-11-66. After conducting certain tests and studying the case papers the doctor found the plaintiff to be mentally defective. His I.Q. as against the normal 100 was only 60. There was organic brain damage which was due to cerebral anoxia the damage to nerve cells was total and irreversible. The prolonged unconsciousness of she plaintiff was due to cerebral anoxia suffered during the operation. Claiming compensation in a sum of Rs. 50,000/- after serving notice under Sec. 80 of the C.P.C., it was averred by the plaintiff in the plaint that but for the unfortunate operation which marred permanently his future prospects and rendered him unfit for higher studies, he would have joined the B.E., degree course in any of the four Engineering colleges which offered him admission, successfully completed the same and also gone abroad ior higher studies. Being a Government merit scholor in the Pre-University Course he would have easily obtained merit scholorship of Rs. 150/- per month until he completed post graduate studies and secured easily a Government job fetching a minimum initial salary of Rs. 1,000/-. Because of the recklessness and negligence on the part of the defendants 2 and 3 his bright future was marred permanently and he bad to depend upon his parents throughout: his life. Due to the recklessness and negligence of the defendants 2 and 3 the plaintiff suffered respiratory and cardiac arrest for about three or four minutes during general anaesthesia which led to cerebral anoxia causing irreparable damage to the brain. Knowing fully well that he was not in a fit state to be operated upon, the second defendant negligently proceeded to perform the operation and in fact completed the operation, thereby further aggravating the damage to the brain. The necessary precautions that ought to have been taken before and curing the operation were not taken. Tonsillectomy being a minor operation involving no risk at all, the damage done to him speaks itself of the gross negligence arid carelessness on the part of the defendants 2 and 3, The Anaesthetist did not even maintain any record of the pre-anaesthetic assessment of the plaintiff. The plaintiff, therefore, sought a decree in a sum of Rs. 50,000/- as damages under all the heads including mental pain, suffering, loss of earning capacity, expenses incurred for medical treatment etc.

(3.) Opposing the suit the first defendant, the Government of AndhraPradesh in its written statement denied the allegations levelled by the plaintiff and contended that the plaintiff was quite normal in all respects and prosecuting his studies and the symptoms exhibited by him before and during the operation were due to pure "mischance" for which no body can be held responsible. It was pleaded that the suit was based on surmises and the damages claimed were excessive.