JUDGMENT
S. Sankarasubban, J.
1. This appeal is filed against the judgment and decree in O.S. No. 81 of 1989 on the file of the Additional Sub-Court, Ernakulam. First defendant is the appellant. The suit was filed by the plaintiff-first respondent for damages oil the death of his mother. The plaint averments are as follows:
2. Deceased V.S. Malathi Vasu is the mother of the plaintiff. She died on the night of 25th September, 1982. According to the plaintiff, Malathi Vasu developed discomfort near the region of her head and hence, she proceeded to the Lisie Hospital along with her husband, who is the third defendant, on 26.7.1982. The Hospital Authorities referred Malathi Vasu to the second defendant, Dr. Saraswathi Thampi, for consultation and examination of her teeth. She was given an outpatient attendance Card. The second defendant examined Malatahi Vasu in detail and she was told that there was a cyst on the lower part of her gum which needed surgical opening. The second defendant removed the cyst.
3. According to the plaintiff, the deceased Malathi Vasu told the second defendant that she was allergic to Penicillin. Acting on this information, the second defendant prescribed Resticlin (500 mg) which is not a Penicillin derivative to be taken for four days as per a prescription dated 26.7.1982. Four days later, Malathi Vasu again went to the second defendant complaining about swelling in the same region. The second defendant interverned surgically the original site of operation and prescribed Resticlin once more to be taken orally for a further period of four days. Thereafter, on 25.9.1982, Malathi Vasu again went to the second defendant complaining about pain and swelling on the same region. The swelling was surgically opened by the second defendant. The second defendant then prescribed Pentids (800 mg.) to be taken one a day for 3 days. Pentids is a Penicillin compound and Malathi Vasu did not know about that fact. The second defendant prescribed Pentids despite the fact that the deceased had told the second defendant that she was allergic to Penicillin during the first consultation of 26.7.1982. The deceased purchased Pentids tablets prescribed by the second defendant from the Lisie Hospital itself and took one tablet of Pentids at about 8 p.m. on 25.9.1982. Within a few minutes of taking the Pentids tablet, she developed grave symptoms of Penicillin allergy. Within a few minutes, Malathi Vasu became comatose and hence she was taken to the Lisie Hospital for emergency treatment. Soon after reaching the Hospital, Malathi Vasu died at about 9 p.m. on 25.9.1982. The plaintiff further stated that the second defendant was fully aware of the fact at the time of commencement of the first treatment that Malathi Vasu was allergic to Penicillin. The second defendant had a duty to exercise due care and caution in the exercise of her professional skill. The second defendant prescribed Pentids tablets to the deceased in spite of having been previously informed by the patient that she was allergic to Penicillin. Pentids is a trade name and a lay man cannot be expected to know that it is a Penicillin compound. According to the plaintiff, his mother died as a result of allergy developed due to the administration of the Penicillin compound. The second defendant was thus not diligent in the performance of her profession and duty towards the deceased and did not exercise proper skill and care while prescribing Pentids tablets for the deceased. It is further stated that the Hospital is liable for the negligent administration of the Penicillin compound without taking elementary precautions by the second defendant. The second defendant was grossly negligent. She did not exercise due care and caution as required by the ordinary stands of the medical profession. The first defendant also is vicariously liable for the negligent act of the second defendant. Later in paragraph 15, the plaintiff claimed damages. The plaintiffs has claimed Rs. 1,50,000/- towards damages.
4. A written statement has been filed by the first defendant. In the written statement, it is stated as follows. It is admitted that the deceased was being treated by Dr. Saraswathi Thampi. Regarding the question of allergic to Penicillin, it was submitted that the deceased Malathi Vasu had not told the second defendant that she was allergic to Penicillin. It is the duty of all Doctors to ask the patients about the allergy to any medicine before medicine is prescribed. If any patient is found to be allergic to any medicine, the same will be noted hi the chart. Whenever any allergy is found, necessary advice will be given about the use of the medicine. It is also a wrong statement that Resticlin was prescribed to Malathi Vasu because she was allergic to Penicillin. Resticlin was thought to be the proper medicine to be administered and the second defendant prescribed the same to the deceased. It is further stated that Malathi Vasu died because of the Penicillin allergy is not correct. The defendant exercised due care and caution. The second defendant was never negligent in the exercise of her professional skill in prescribing Pentids. All standards required of medical profession have been complied with. Defendants 3 and 4 have filed separate written statement supporting the plaintiff. Additional written statement was filed by the first defendant regarding damages. With these pleadings, parties went to trial. The second defendant remained ex parte.
5. The following issues were raised by the Court below:
(i) Whether the suit is barred by limitation?
(ii) Whether there is negligence on the part of the 2nd defendant as alleged?
(iii) Whether the 1st defendant is vicariously liable for the negligence of the 2nd defendant as alleged.
(iv) Whether the plaintiff is entitled to damages and if so, the quantum thereof?
(v) Relief and costs.
As a matter of fact, the question of limitation was not raised in the pleadings. But at the time of argument, this question was advanced and hence, the Court below considered that question also. The first defendant alleged that the suit is under the Fatal Accidents Act, 1855 and Article 82 of the Limitation Act applies. The Suit for damages should have been filed within two years. In this case, two years period is over. But the plaintiff contended that the claim is not made under the Fatal Accidents Act. But it is filed under Section 2 of the Kerala Act. The lower Court accepted this contention and held that there was no limitation.
6. Learned Counsel for the appellant Mr. Jimmy John Vallanikkaran contended that the suit can be filed only under the Fatal Accidents Act and not under the Kerala Torts (Miscellaneous Provisions) Act (hereinafter referred to as ‘the Kerala Act’). Section 1 of the Fatal Accidents Act deals with damages suffered by close relatives of the deceased while Section 2 deals with the loss to the estate of the deceased. The Court below came to the conclusion that in this case, the plaintiff can rely on Section 2 of the Kerala Act and he has got three years to file the suit. In that view of the matter, it was held that it is not barred by limitation.
7. So far as the question of negligence is concerned, in the plaint the plaintiff has clearly stated that the second defendant was informed about the allergy to Penicillin. She knew about the same. But in spite of this, the Doctor prescribed Penicillin. That has been done negligently. P.W. 1 is the plaintiff. Of Course, he does not have any direct information of prescribing of Pentids and that the deceased had told the doctor about the allergy to Penicillin. But his evidence shows that on that fateful day, his mother purchased Pentids as per the prescription of the second defendant and when she took one tablet of Pentids, she became unconscious and she died at the Hospital on the same day. The evidence of P.Ws. 1, 2 and 3 Dr. Ravi and third defendant clearly stated that the deceased had taken Pentids. We don’t find anything to disbelieve the evidence of these persons regarding the prescription of Pentids and the immediate collapse of Malathi Vasu on taking that medicine. P.W. 5 was examined to show that the Pentids tablets can have reaction. D.W. 1, Dr. Chacko has also stated that about the reaction of the Pentids tablets. What the first defendant then contended is that every Doctor will enquire with the patient whether he has got reaction of any tablets. If the patient has got any reaction to the tablets that will be noted in the chart prepared by the Hospitals. In fact, D.W. 1 has produced the Charts, Exts. B1 to B6. Ext. B1 is a chart with respect to the deceased Malathi Vasu. It shows that on 26.7.1982 and 30.7.1982 Resticlin was prescribed and on 25.9.1982, Pentids was prescribed. Ext. B2 is one related to N.K.P. Nambiar. There, we find an endorsement that the person is allergic to Penicillin. In the same way, Exts. B3 to B6 show that the patients were allergic to Penicillin. Whenever the patient is allergic to Penicillin, that will be noted in the chart. According to the Doctor, if the deceased was allergic to Penicillin, it would have been noted in the chart.
8. After going through the evidence adduced on the side of the plaintiff and on the side of the Hospital, we are of the view that the second defendant was negligent in prescribing the Pentids to the deceased. There is nothing to disbelieve the evidence of P.Ws. 1 to 3. The deceased was an educated person and it can be believed that she told the Doctor about her allergy to the medicine. By the mere fact that the deceased was allergic to Penicillin was not noted in the chart, that cannot lead us to come to the conclusion that the deceased has not informed the Doctor regarding her allergy to penicillin. The fact that with the immediate consumption of one tablet of Pentids the deceased has become unconscious and died shows that she was allergic to that medicine. On the totality of the facts and circumstances of the case, we are of the view that the second defendant-Doctor was negligent in administering Pendits to the deceased. We are further strengthened in our reasoning by the fact that the second defendant has not appeared and contested the matter. In the above view of the fact, we are not able to appreciate and accept the evidence given by D.W. 1. Hence, we find that the lower Court was correct in holding that the second defendant was negligent and the first defendant is vicariously liable.
9. The next question to be considered is regarding the limitation. Learned Counsel for the appellant argued that the damages are claimed as per the Fatal Accidents Act, 1855. Section 1A of the above Act speaks of the compensation to the family members for the loss occasioned due to the death. In Section 2 of the above Act, it is stated that the claim can be inserted for recovery of pecuniary loss to the estate of the deceased. Thus Section 1A of the Fatal Accidents Act refers to compensation to the wife, husband, parent and child. Section 2 says that provided always that not more than one action or suit shall be brought for, and in respect of the same subject-matter of complaint. Learned Counsel submitted that since the claim is under the Fatal Accidents Act, it is Article 82 of the Limitation that applies. Under Article 82 of the Limitation Act, the period prescribed for compensation is two years from the date of death of the deceased. Thus, whether it is a claim for the family member or for the pecuniary loss to the estate such action shall be brought within the period of two years from the date of the death of the deceased.
10. Learned Counsel for the first respondent submitted that the claim is not filed under the Fatal Accidents Act. But it is filed under the Kerala Act. Section 2 of the Kerala Act states as follows : “On the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate”. Thus, learned Counsel submitted that in the present claim, the plaintiff has sought for the benefit to the estate. Damage is sought for the benefit of the estate. The Kerala Act provides for the benefit of the estate. Of course, if an action is to be made for the benfit of the relatives as well as the loss of the estate, then probably, the Fatal Accidents Act will apply. If the claim is confined to the loss to the estate, it is the Kerala Act, 1975 that will apply. If the Kerala Act applies, the limitation. for filing such a suit will be Article 113 under which a period of three years is given. Hence, according to the Counsel, there is no bar of limitation.
11. Regarding the claim under the Fatal Accidents Act, the Supreme Court as early as in 1962 in the case reported in Gobald Motor Service Ltd. and Anr. v. R.M.K. Veluswami and Ors. AIR 1962 S.C. 1, has interpreted Section 2 of the Act as follows:
The cause of action under Section 1 and that under Section 2 are different. While under Section 1 damages are recoverable for the benefit of the benefit of the persons mentioned therein, under Section 2 compensation goes to the benefit of the estate; whereas under Section 1 damages are payable in respect of loss sustained by the persons mentioned therein, under Section 2 damages can be claimed inter alia for loss of expectation of life. Though in some cases parties that are entitled to compensation under both the sections may happen to be the same person, they need not necessarily be so; persons entitled to benefit under Section 1 may be different from those claiming under Section 2 prima facie as the two claims are to be based upon different causes of action. The claimants whether the same or different, would be entitled to recover compensation separately under both the heads.
Learned Counsel submitted that so far as the present case is concerned, what is claimed is the pecuniary loss to the estate. A perusal of the Kerala Act clearly reveals that what is provided for the benefit of the estate. The Act repeals the Legal Representatives’ Suits Act, 1855. It further repeals Section 306 of the Indian Succession Act. According to us, with the introduction of the Kerala Torts Act, the provision of that Act applies to the Kerala State. If that be so, the claim for damages for the loss to the estate can be filed under that Act and Article 113 applies and hence, there is no bar of limitation.
12. So far as the question of compensation is concerned, in paragraph 15 of the plaint, it is stated that Malathi Vasu was 51 years of age at the time of her death and was in good health. She had four more years of service as High School Assistant in the S.M. High School, Cherai. She was drawing a monthly salary of Rs. 828/- and her date of retirement from service was 31.5.1986. At the time of retirement, she would have drawn a total salary of Rs. 942/- and she would have been entitled to a basic pension of Rs. 280/- per month on superannuation. The parents of the deceased were alive at the time of her death. The mother of Malathi Vasu, 4th defendant was aged 75. Malathi Vasu could reasonably have been expected to live till 75. The expectation of life of Malathi Vasu was shortened by the negligent act on the part of the second defendant. Damages for shortened the expectation of life apart from pain and suffering caused accrued to the estate of Malathi Vasu. Thus, the claim is based on pecuniary loss to the estate. Thus, it clearly comes under Section 2 of the Kerala Act.
13. The next question is regarding the award of damages. According to paragraph 16 of the plaint, the deceased would have earned a total pension of Rs. 75,000/- and she had four years service left. In paragraph 17, the plaintiff claimed Rs. 75,000/- as damages for the loss of society, affection and guidance caused to him. On account of the pain and suffering caused to the deceased by the negligent and wrongful administration of medicine by the second defendant, the estate of the deceased is entitled to damage of Rs. 3,000/-. The claim has been restricted to Rs. 1,50,000/-. The Court below awarded a compensation of Rs. 1,50,000/-. After going through the judgment, we are satisfied that the assessment of the damage is correct.
In the above view of the matter, appeal and Cross-objection are dismissed.