Research › Search › Judgment

Rajasthan High Court · body

2003 DIGILAW 247 (RAJ)

Shibha Devi v. State of Rajasthan

2003-02-17

PRAKASH TATIA

body2003
JUDGMENT : 1. Heard learned counsel for the petitioner. 2. The grievance of the petitioner is that the petitioner had undergone operation for tubectomy for which a certification Annex. 1 was issued. This operation was conducted on 19.1.96. Even after this operation, the petitioner gave birth to a child for which petitioner placed on record copy of the birth certificate Annex. 3. 3. According to learned counsel for the petitioner, this is a case of negligence of the doctor who conducted the operation and, therefore, the respondent No. 4 is personally liable for the damages whereas respondents No. 1 to 3 are vicariously liable for the damages. It is also submitted that petitioner is a poor lady and she cannot afford to pay the litigation amount if she files a suit. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court delivered in the case of State of Haryana and Ors. v. Santra (Smt.), (2000) 5 SCC 182 wherein the decree for compensation was upheld by the Hon'ble Supreme Court. 4. It is clear from the facts mentioned in the writ petition that it is a case of claim of damages for the alleged wrong done by the respondent No. 4 making the respondents No. 1 to 3 vicariously liable. The allegations levelled by the petitioner require investigation of facts, which can be proved only by evidence to find out whether there was a negligence in performance of the above operation, upto what extent that negligence was, how much the loss petitioner is likely to suffer and whether the respondents No. 1 to 3 can be held liable vicariously ? These all facts can be looked into and appropriate compensation on proving the case of the petitioner can be awarded by the civil court. 5. Learned counsel for the petitioner submits that any lump sum amount can be awarded to the petitioner so that long process of civil suit can be avoided. The contention of learned counsel for the petitioner may be due to various reasons, one of which may be to get the compensation forthwith. But for that purpose, the appropriate relief can be granted by the civil court. The contention of learned counsel for the petitioner may be due to various reasons, one of which may be to get the compensation forthwith. But for that purpose, the appropriate relief can be granted by the civil court. It may be the intention of the petitioner to get the compensation as early as possible, but by this, she may be deprived of her legitimate claim of more amount which she can get from the civil court and petitioner will also not suffer any hardship. In case, she is an indigent person, she may move appropriate application for filing the suit without court fees. Therefore, even by submission of petitioner, this court deems it proper that petitioner should get the complete amount of the damages, which she suffered and it is not in the interest of the petitioner to settle down the damages because of her own personal financial weaker condition. The courts can take care of expeditious disposal of such type of suits so that the newly born baby may also not suffer.Therefore, in view of the involvement of disputed questions of facts this court is not inclined to invoke the writ jurisdiction under Article 226 of the Constitution of India and the writ petition of the petitioner is dismissed so that petitioner if so chooses, may approach the appropriate forum for rederssal of her grievance. The judgment cited by learned counsel for the petitioner delivered in the case of State of Haryana and Ors. v. Santra (supra) is also in the civil suit and not in the writ jurisdiction.Petition dismissed.