Kerala High Court
Dr.Babu vs *Padmavathi on 11 March, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SATHISH NINAN
MONDAY, THE 27TH DAY OF FEBRUARY 2017/8TH PHALGUNA, 1938
CRP.NO. 475 OF 2010 ( )
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AGAINST THE JUDGMENT IN AS.126/2008
OF SUB COURT, PERUMBAVOOR DATED 11-03-2010
REVISION PETITIONER(S)/PETITIONER/APPELLANT:
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DR.BABU, AGED 56 YEARS, VETERINARY
DOCTOR, S/O.SKARIA, RESIDING AT MADATHIL
COMPLEX, NEAR PRIVATE BUS STAND, PERUMBAVOOR
KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK.
BY ADVS.SRI.G.RAJAGOPAL
SMT.N.RENJINEE DEVI
RESPONDENT(S)/RESPONDENT:
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*PADMAVATHI, AGED ABOUT 74 YEARS,
W/O.SREEDHARAN, MEPRATHUMALI HOUSE, IRINGOLE KARA
PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK (DIED)
*ADDITIONAL RESPONDENTS IMPLEADED:
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2. USHA, AGED ABOUT 58 YEARS, D/O.LATE PADMAVATHI,
MEPRATHUMALI HOUSE, IRINGOLE KARA, PERUMBAVOOR
VILLAGE, KUNNATHUNADU TALUK, PIN 683 548.
3. AMBIKA, AGED ABOUT 57 YEARS, D/O.LATE PADMAVATHI,
MEPRATHUMALI HOUSE, IRINGOLE KARA, PERUMBAVOOR
VILLAGE, KUNNATHUNADU TALUK, PIN 683 548.
4. SAJEEV KUMAR, AGED ABOUT 55 YEARS, S/O.LATE
PADMAVATHI, MEPRATHUMALI HOUSE, IRINGOLE KARA,
PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PIN 683 548.
5. SAJINI, AGED ABOUT 54 YEARS, D/O.LATE PADMAVATHI,
MEPRATHUMALI HOUSE, IRINGOLE KARA, PERUMBAVOOR
VILLAGE, KUNNATHUNADU TALUK, PIN 683 548.
CRP.NO. 475 OF 2010
6. MINI, AGED ABOUT 52 YEARS, D/O.LATE PADMAVATHI,
MEPRATHUMALI HOUSE, IRINGOLE KARA, PERUMBAVOOR
VILLAGE, KUNNATHUNADU TALUK, PIN 683 548.
7. SURESH, AGED ABOUT 51 YEARS, S/O.LATE PADMAVATHI,
MEPRATHUMALI HOUSE, IRINGOLE KARA, PERUMBAVOOR
VILLAGE, KUNNATHUNADU TALUK, PIN 683 548.
ADDITIONAL RESPONDENTS 2 TO 7 ARE IMPLEADED AS
THE LEGAL HEIRS OF DECEASED 1ST RESPONDENT AS PER
ORDER DATED 20.07.2016 IN I.A. NO.3259 OF 2010
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 10.02.2017, THE COURT ON 27.02.2017 PASSED THE FOLLOWING:
SATHISH NINAN, J.
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C.R.P. No.475 of 2010
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Dated this the 27th day of February, 2017
O R D E R
The defendant in a suit for damages is the revision petitioner.
2. The defendant is a Veterinary Doctor. Damages is claimed alleging that a she-buffalo and a calf belonging to the plaintiff died due to the negligence on the part of the defendant. The suit was laid for realisation of Rs.20,000/- as damages.
3. The alleged incident was on 17.09.1996. The defendant being a Veterinary Doctor, on the request of the plaintiff, attended the delivery of the plaintiff's she-buffalo. The defendant came to the spot and attended the she-buffalo. The calf was dead even when he reached. So the attempt was to take out the dead calf from the womb. The attempts to pull it out failed; only the front legs and the head came out. So he cut and removed the head of the dead calf. Thereafter also he made futile C.R.P. No.475 of 2010 -: 2 :- attempts to pull out the remaining portion of the calf. Then the defendant left asking the plaintiff to get other Doctors for assistance to complete the further procedure. The she-buffalo died at 3.00 a.m. on 18.09.1996. Alleging that the death of the she-buffalo occurred due to the negligent and careless act of the defendant, the suit was instituted claiming damages of Rs.20,000/-.
4. The defendant contended that even at the time when he reached the residence of the plaintiff, the calf was dead in the womb. Since the entire fluid was lost it was difficult to take the calf out of the womb. The condition of the she-buffalo was made known to the plaintiff. The defendant made all attempts to pull out the calf, which did not turn out fruitful. The only course open was to perform embryotomy. With a view to save the life of the she-buffalo, as the first step in C.R.P. No.475 of 2010 -: 3 :- embryotomy, the head of the calf was removed. Though attempts were made by the defendant, the remaining portion of the calf could not be pulled out. The defendant got physically exhausted and the fingers became numb preventing the defendant from completing the process. He suggested to get other Doctors from the neighbouring locality and he left. The defendant had done all the necessary and possible things the circumstances warranted. There was no negligence on his part. He prayed for dismissal of the suit.
5. The trial court after taking evidence decreed the suit in favour of the plaintiff. The appellate court confirmed the judgment of the trial court. The same is under challenge in this Civil Revision Petition.
6. Learned counsel for the Revision Petitioner took me to the entire evidence in the case exhaustively. He would contend that the evidence reveal that all C.R.P. No.475 of 2010 -: 4 :- possible and necessary steps that could be expected of a Veterinary Doctor at the given instance were done by the defendant. The defendant had followed the practice acceptable to the medical profession in the limited available circumstances. He would argue that merely because a better or alternative course of treatment could have been adopted or might have been possible, does not entail a conclusion that there was negligence at the hands of the defendant and that what is required to be looked into is, as to whether the course of action adopted by the Doctor was one that would have been adopted by an ordinary prudent Doctor. He would also raise a contention that the suit is barred by limitation since it is filed beyond one year from the date of the incident. According to him, Article 72 of the Limitation Act applies and the suit ought to have been filed within a period of one year. He would also argue that the suit C.R.P. No.475 of 2010 -: 5 :- is bad for non-issuance of notice under Section 80 of the Code of Civil Procedure.
7. Coming to the submission of the learned counsel regarding limitation, neither before the trial court nor the appellate court the plea of limitation was raised. I am not shutting my eyes to Section 3 of the Limitation Act. According to the learned counsel, death of the she-buffalo was on 18.09.1996 whereas the suit was filed on 05.03.1998 which is beyond the period of one year provided under Article 72 of the Limitation Act. The suit is one for damages alleging negligence, a tortious act on the part of the defendant. It needs no elaboration that in the present case Article 72 of the Limitation Act does not come into play. At any rate, as noticed, such a contention was never urged in the courts below. The contention regarding limitation is negatived.
8. Coming to the plea of non-maintainability of C.R.P. No.475 of 2010 -: 6 :- the suit for the lack of issuance of notice under Section 80 CPC, it is a plea that could be waived by the defendant. Here, there is no plea regarding absence of notice under Section 80 CPC. The trial court as well as the appellate court considered the suit on merits. Raising contention regarding lack of notice under Section 80 CPC, in this Revision, would only be piling unreason upon technicality. The defendant having waived the right of notice, is not entitled to contend in this Revision that the suit is bad for non-issuance of notice under Section 80 CPC. Apart from the same, it is to be noticed that the suit is not filed in respect of an incident that took place during the course of employment of the defendant by the Government. It cannot be said to be an act done in the course of his official employment. Hence he is not entitled to any notice under Section 80 CPC. The said contention is accordingly negatived. C.R.P. No.475 of 2010 -: 7 :-
9. Coming to the merits of the case, though the jurisdiction under Section 115 CPC is very limited and does not stretch to re-appreciation of evidence on record, in order to satisfy my conscience I have considered the entire evidence on record. The plaintiff got herself examined as PW1. On the side of the defendant, Dws1 to 6 were examined. The plaintiff in her deposition has stated regarding the various acts done by the defendant in his attempt to take the calf out from the womb of the she-buffalo. She has admitted that head and two hands of the calf were taken out of the womb by the defendant and that possible efforts were made by the defendant, in spite of which, remaining part of the body of the calf did not come out. The evidence of the defendant's witnesses also reveal that the defendant had taken all efforts to take the calf out of the womb, but was futile.
C.R.P. No.475 of 2010 -: 8 :-
10. However, it has come out that when his attempt to take the calf out failed, he cut and removed the head of the calf using a knife. This according to the defendant is the first process of embryotomy by which the body of the calf is removed from the womb in pieces. It is in evidence that embryotomy was the next process to be adopted to take the calf out. But admittedly, necessary tools and utensils to conduct embryotomy were not available at that time. DW4 is another Veterinary Doctor who had 30 years of experience in the profession. He has spoken to that conducting of embryotomy was the only course of action that remained in the instant case. He has also deposed that removing the head is the first step in the process of embryotomy. To a pointed question put to him as to whether once the procedure is started, is it is not to be a continous process to be adopted, he replied that the remaining parts of the body is also to C.R.P. No.475 of 2010 -: 9 :- be cut and removed immediately. Though it was put to him as to whether it would not be fatal if after removing the head, the remaining part of the body is left inside the womb of the mother, he did not deny. He has further deposed that in the process of embryotomy, once the procedure is started, after the first step, the remaining process is to be completed as fast as possible and that any delay caused in the said process would be fatal. The defendant as DW6 in his chief examination would state that towards the first part of embryotomy the head of the calf was removed and he made all attempts to remove the remaining part of the body of the calf from the womb but it turned futile; he got physically exhausted and his fingers became numb. It was in the said circumstance that he left after instructing the plaintiff to get some other Doctor. In his cross- examination he stated that for conducting the procedure C.R.P. No.475 of 2010 -: 10 :- of embryotomy various equipments like embryotomy knife, wire-saw, etc., are necessary and that those instruments were not available with him at that time. He has further deposed that sterilized equipments are necessary to conduct embryotomy and that the removal of the head which is the first step in embryotomy was done by him by obtaining a knife from the plaintiff's house. He has categorically stated that to conduct the remaining part of embryotomy, the equipment called wire-saw is necessary and that it was not available with him. When he was asked as to why he did not complete the remaining part of the embryotomy process, his explanation was that the she-buffalo was exerting pressure to bring out the calf and hence he could not exert force in the opposite direction and further that for the said procedure assistance of 2 or 3 Doctors are necessary. It was suggested to him that if the procedure of embryotomy was C.R.P. No.475 of 2010 -: 11 :- completed, the she-buffalo could have been saved, his answer was in the affirmative. He has asserted in cross- examination that head of the calf was removed as the first step in the process of embryotomy. It comes out from the evidence of the defendant as DW6 that and also of another Doctor examined on his side as DW4 that for conducting the procedure of embryotomy, assistance of 2 or more Doctors are necessary; that there are specific equipments like embryotomy knife and wire-saw, etc., which are necessary to conduct the procedure of embryotomy apart from the fact that the same are to be sterilized. It has further come out that the procedure of embryotomy is to be done in one course step by step and that delay in completion of the process is fatal. The defendant knew all the above aspects, but still he proceeded to remove the head of the calf and that too without necessary equipments with him. The conduct on C.R.P. No.475 of 2010 -: 12 :- the part of the defendant in initiating the steps for embryotomy even without necessary equipments and assistance of sufficient Doctors and leaving it unfinished, could not be nothing less than negligence on the part of the defendant. The courts below have on due appreciation of the evidence found negligence on the part of the defendant. I do not find any reason to interfere with the judgment and decree of the courts below.
The Civil Revision Petition fails and it is accordingly dismissed.
Sd/-
SATHISH NINAN, JUDGE.
vsv /true copy/ P.S. To Judge