SAHRUDHAYA HOSPITAL v. T.P. JYOTHILAKSHMI, VIJESH, AND DR. JOHNY PHILIP

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945** **RFA NO. 123 OF 2003** **AGAINST THE JUDGMENT AND DECREE DTD 13.2.2003 IN OS 87/2000 ON THE** **FILE OF PRINCIPAL SUB COURT, ALAPPUZHA** ## **APPELLANT/1ST DEFENDANT:** ## **SAHRUDHAYA HOSPITAL** **THATHAMPALLY, ALAPPUZHA, REPRESENTED BY ITS PRESIDENT DR. ABRAHAM THAYIL, SAHARUDHAYA HOSPITAL, THATHAMPALLY, ALAPPUZHA.** **BY ADVS.SRI.M.M.SAIDU MUHAMMED SRI.V.J.KURIANVALLAMATTAM** ## **RESPONDENTS/PLAINTIFFS/2ND DEFENDANT:** - **1 T.P.JYOTHILAKSHMI W/O LATE VENUGOPAL, RESIDING AT THAKIDI VELIYIL VEEDU, ARTHUNKAL BYPASS, C.M.C. NO.XXV, CHERTHALA FROM RENJITH NIVAS, DISTRICT COURT WARD, ALAPPUZHA.** - **2 VIJESH** - **S/O LATE VENUGOPAL, RESIDING AT THAKIDI VELIYIL VEEDU, ARTHUNKAL BYPASS, C.M.C. NO.XXV, CHERTHALA, REPRESENTED BY HIS GUARDIAN AND NEXT FRIEND T.P.JYOTHILAKSHMI, W/O.LATE VENUGOPAL,RESIDING AT THAKIDI VELIYIL VEEDU, ARTHUNKAL BYPASS, C.M.C. NO.XXV, CHERTHALA.** - **3 DR. JOHNY PHILIP S/O J.SASTHRI, MATTACKAL HOUSE, CHERUKOL VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT.** - **BY ADVS.SRI.GEORGE MATHEW SRI.K.S.HARIHARAPUTHRAN** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON** **09.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **R.F.A.No. 123 of 2003** ## **C.S.SUDHA, J.** ## **------------------------------** ## **R.F.A.No. 123 of 2003** ## **----------------------------------------Dated this the 9[th] day of November, 2023** ## **J U D G M E N T** This appeal under Section 96 read with Order XLI Rule 1 C.P.C. has been filed by the first defendant against the judgment dated 13/02/2003 in O.S.No.87/2000 on the file of the Subordinate Judge's court, Alappuzha. The respondents herein are the plaintiffs and the second defendant respectively in the suit. The parties in this appeal will be referred to as described in the suit. 2. The first plaintiff is the widow and the second plaintiff, the son of deceased Venugopal. The second plaintiff a minor, is represented by his guardian, mother, and next friend, the first plaintiff. Venugopal, a goldsmith by profession, was a permanent resident of the address shown in the plaint. While so, on 18/12/1996 at about 11:45 p.m., Venugopal along with his brother Devaraj went to the first defendant hospital complaining of cold and sore throat. Venugopal was given some medicines and ampoxin injection was administered. It was the second defendant, the duty doctor, who had 3 ## **R.F.A.No. 123 of 2003** administered the injection to Venugopal without giving a test dose or taking the necessary precautionary measures before administering the injection. Within few minutes of the injection being given, Venugopal developed asphyxia, pursuant to which he was rushed to the Medical College Hospital and at about 12:30 a.m., he breathed his last. Post-mortem examination was conducted at the Medical College Hospital, Alappuzha. The findings in the examination are consistent with death due to anaphylactic reaction. Before administering the injection, Venugopal ought to have been given a test dose to ascertain whether the said injection would cause any reaction in his body. Venugopal, a quite hale and healthy man was only 24 years old at the time of his death. He was not suffering from any ailments. There has been gross negligence and carelessness on the part of the first defendant hospital in administering the ampoxin injection to Venugopal without giving the test dose, resulting in his death. The defendants did not act with reasonable care or caution. The gross dereliction and want of reasonableness are quite patent and the death of Venugopal itself speaks of the gross negligence on the part of the defendants. Had the defendants exercised reasonable care and caution by taking the test dose before administering the injection, Venugopal would not have died. It was in violation of and against the accepted principles of medical treatment that the defendants had administered the injection to the 4 ## **R.F.A.No. 123 of 2003** deceased and as such the conduct of the defendants is highly blameworthy. The deceased was the sole breadwinner of the family. He was a skilled goldsmith earning about ₹200/- per day. The premature death of Venugopal, caused grave mental agony, shock, and pain to the first plaintiff. There is loss of consortium also. The second plaintiff, the minor child, lost an affectionate and loving father. The first plaintiff is not having any employment or avocation. The plaintiffs are under great financial difficulty and the first plaintiff is struggling to maintain herself and her minor child. Venugopal in all probability would have lived at least to the age of 60. The untimely death of the deceased, because of the negligent act of the defendants has struck a heavy blow on the plaintiffs. The plaintiffs estimate the loss of life expectancy and loss of income at ₹5,00,000/-; the loss of consortium at ₹1,00,000/- and ₹1,00,000/- for the mental pain and shock sustained by them. As such, the defendants are jointly and severally liable to pay an amount of ₹7 lakhs by way of compensation to the plaintiffs. Hence, the suit. 3. Though summons was served on the second defendant doctor, he remained _ex parte_ . The first defendant hospital entered appearance and filed written statement denying the allegations contained in the plaint. According to the first defendant, the deceased, a goldsmith by profession, 5 ## **R.F.A.No. 123 of 2003** was under severe financial stringency and hence had consumed poison resulting in his untimely death. On 18/12/1996 at about 11:45 p.m., the deceased had come to the hospital with his brother complaining of cold and sore throat. The allegation that the deceased was administered ampoxin injection is false and incorrect. The deceased was kept in the observation room of the hospital from 11:45 p.m. to 12:25 a.m., during which time he was given paracetamol and dexona injection for sore throat and fever. This did not require any test dose to be given or other precautionary measure(s) to be taken. The deceased was discharged when he was relieved of the symptoms of fever and sore throat. At the time of his discharge, he was given a prescription of medicines by which he was advised to take ampoxin capsule once in eight hours for two days. The allegation that the deceased within a few minutes of being administered the injection, developed asphyxia and thereupon he was admitted to the Medical College Hospital, is incorrect and false. The allegation that the postmortem findings are consistent with death due to anaphylactic reaction is not known to the defendant. The treatment given at the defendant’s hospital would never cause such a reaction since the injection given was paracetamol and dexona, a cortisone and a harmless medicine, having no reaction whatsoever including anaphylactic reaction. As the deceased was never administered, 6 ## **R.F.A.No. 123 of 2003** any ampoxin injection, there was never any necessity to give him any test dose. The deceased was treated with absolute care and caution. The allegation that he was earning ₹200/- per day is incorrect and false. To the knowledge of the defendant, he was jobless and had no source of income. As there is no negligence or carelessness on the part of the defendant, the plaintiffs are not entitled to the damages as prayed for. 4. On completion of pleadings, the parties went to trial. PWs.1 to 4 were examined and Exts.A1 to A5 were marked on the side of the plaintiffs. DWs.1 and 2 were examined on the side of the defendants. No documentary evidence was adduced by the first defendant. Exts.X1 to X3 are also seen marked. The trial court, on an appreciation of the oral and documentary evidence and after hearing both sides, decreed the suit with costs directing the defendants to pay the plaintiffs a sum of ₹3,31,500/within three months from the date of the judgment. Aggrieved, the first defendant/ hospital has come up in appeal. 5. The only point that arises for consideration is whether there is any infirmity in the findings of the trial court, calling for an interference by this Court. 6. Heard both sides. 7. Though the first defendant hospital/ appellant had taken up a 7 ## **R.F.A.No. 123 of 2003** contention that Venugopal died due to poisoning, absolutely no evidence was led to substantiate the same. On the other hand, Ext.X1 chemical analysis report substantiated the case of the plaintiffs. Ext.X1 report, which has not disputed or discredited by the first defendant shows that ampicillin was detected in four out of the five samples taken from the body of the deceased for chemical examination. No poison was detected in any of the samples collected. Ext.X1 report also shows that the sample taken from the site where the injection was administered also showed traces of ampicillin. Therefore, the contention of the first defendant that no injection containing penicillin had been administered is apparently incorrect and false. The contention that the deceased had consumed poison has also been proved incorrect. That being the position, the trial court was certainly right in holding that there was negligence and carelessness on the part of the first defendant hospital as well as the second defendant doctor, who administered the injection. The defendants do not have a case that when injection containing penicillin is administered, test dose is not necessary. They do not also have a case that test dose had been administered to Venugopal before the injection was administered. On the other hand, their definite case is that ampoxin injection had not been administered to the deceased. Ext.X1 proves otherwise and hence in these circumstances the finding of the trial 8 ## **R.F.A.No. 123 of 2003** court that there was carelessness and negligence of the part of the first defendant hospital as well as the second defendant doctor in administering the injection without giving the test dose, cannot be faulted with. 8. It was pointed out by the learned counsel for the plaintiffs that only a paltry sum of ₹5,000/- has been granted towards loss of consortium and ₹2,500/- towards loss of estate. Added to that no interest has been awarded. According to him, ₹25,000/- for loss of consortium; ₹10,000/- for loss of estate along with a reasonable rate of interest would meet the ends of justice. Though no cross objection has been filed, the plaintiffs are entitled to seek the aforesaid reliefs in the light of Order XLI Rule 33 CPC, submit the learned counsel for the plaintiffs. On the other hand, it was submitted by the learned counsel for the first defendant hospital that reasonable amount has already been granted by the trial court and hence the amounts awarded does not call for any interference. 9. The first plaintiff, the widow, appears to have been in her early twenties when the incident occurred. During the course of arguments, it was submitted that she still continues to be single. The incident took place on 18/12/1996. 27 long years have elapsed. Although quite a reasonable sum had been decreed by the trial court, the first defendant never thought it fit to pay the sum or offer it to the plaintiffs. Till date, the widow, and the child, 9 **R.F.A.No. 123 of 2003** who must now have become a major, have been compensated in anyway either by the first defendant hospital or by the second defendant doctor, due to whose negligence a young life has been snuffed out. Here I refer to Order XLI Rule 33 CPC, which reads thus - “ _**33. Power of Court of Appeal.** -The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in crosssuits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:_ _Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.”_ 10. In **Banarsi v. Ramphal, AIR 2004 SC 1989,** construing the provisions of O.41 R.33 of CPC it has been held that this provision confers powers of the widest amplitude on the appellate court so as to do complete justice between the parties. Such power is unfettered by considerations as to what is the subject matter of appeal or who has filed the appeal or whether 10 ## **R.F.A.No. 123 of 2003** the appeal is being dismissed, allowed, or disposed of while modifying the judgments appealed against. One of the objects in conferring such power is to avoid inconsistency, inequity and inequality in granting reliefs and the overriding consideration is achieving the ends of justice. It has also been held that the power can be exercised subject to three limitations: firstly, this power cannot be exercised to the prejudice of a person who is not a party before the Court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the power cannot be exercised when such part of the decree which the party has been permitted to become final by a party is reversed to the advantage of that party [See also **Pralhad v. State of Maharashtra, (2010) 10 SCC 458** )]. 11. The plaintiffs have estimated the loss of life expectancy and loss of income at ₹5,00,000/-; loss of consortium at ₹1,00,000/- and ₹1,00,000/towards mental pain and shock. The trial court has granted ₹3,24,000/towards loss of income; ₹5,000/- towards loss of consortium and ₹2,500/towards loss of estate, thus totally an amount of ₹3,31,500/-from the defendants and their assets. In the aforesaid circumstances, in the interest of justice and considering the fact that the first plaintiff at the time when the incident took place was a young widow in her early twenties, I think compensation towards loss of consortium can be fixed at ₹25,000/- and loss 11 ## **R.F.A.No. 123 of 2003** of estate at ₹10,000/-. There is no prayer in the plaint for interest and hence, the trial court was right in not granting the same. In the result, the judgment and decree are modified as stated in paragraph 11. The remaining part of the judgment and decree is confirmed, and the appeal is disposed of accordingly. In the light of Order XXXIII Rule 14 CPC, a copy of the decree shall be forwarded to the District Collector to recover the court fees from the defendants and their assets. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA** **JUDGE** ami/