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2012 DIGILAW 878 (MP)

Uma v. State of M. P.

2012-09-11

PRAKASH SHRIVASTAVA, SHANTANU KEMKAR

body2012
JUDGMENT : As per Prakash Shrivastava, J. : - This First Appeal under Section 90 of the CPC has been filed by the plaintiff, against the judgment dated 7.-5-1999 passed by the XIII Addl. Sessions Judge, Indore dismissing the Civil Suit No. 12-A/94. 2. The appellants had filed the suit for damages pleading that the sterilisation operation of the appellant No. 1 was done by the respondent No. 4 on 3-9-1992. Thereafter, the appellant No. 1 on 7-12-1992 came to know that she had five months pregnancy. On 21-4-1993, the appellant No. 1 gave birth to appellant No. 2. Therefore, in the plaint, an allegation was made that the respondent No. 4 was negligent in performing the sterilisation operation resulting into the pregnancy and birth of the appellant No. 2. Consequently, the appellants claimed damages to the tune of Rs. 4,55, 500/- along with the interest. The respondents had remained ex parte in the matter. 3. The Trial Court by the impugned judgment dated 7-5-1999 had dismissed the suit on reaching to the conclusion that the appellants had failed to, prove the negligence on the part of the respondent No. 4. On appreciation of the evidence, the Trial Court found that the sterilisation operation was performed on 3-9-1992 and seven months, thereafter, the appellant No. 1 gave birth to appellant No. 2 on 21-4-1993 meaning thereby at the time of sterilisation operation, the appellant No. 1 was pregnant. Prior to the operation, the respondent No. 4 had got the pregnancy test done vide Exh. P-6-C. In this background, the Trial Court found that the negligence of the respondent No. 4 was not proved. 4. Learned Counsel for appellants submits that the Trial Court has committed an error in appreciating the evidence'on record and that the negligence of the respondent No. 4 has duly been proved. As against this, learned Counsel for respondents has'supported the judgment under appeal and submitted that though the respondents were exparte, but the appellant from their own evidence could not establish their plea raised in the suit. 5. We have heard the learned Counsel for parties and minutely perused the record of the case. 6. The sole issue involved in the present appeal is as to whether the appellants have been able to establish that the respondent No. 4 was negligent in performing the sterilisation operation of the appellant No. 1. 7. 5. We have heard the learned Counsel for parties and minutely perused the record of the case. 6. The sole issue involved in the present appeal is as to whether the appellants have been able to establish that the respondent No. 4 was negligent in performing the sterilisation operation of the appellant No. 1. 7. Umabai (P.W. 1), the plaintiff has stated that she was operated by respondent No. 4 and after the operation, there was complaint about pain in the stomach, therefore, the same Doctor, who had operated had advised her to go to MY Hospital. In the MY Hospital, she was informed about her pregnancy and the appellant No. 2 was born on 21-4-1993. The same facts have been reiterated by Kailash (P.W. 2), husband of appellant No. 1. Kurshid Ahmed Khan (P.W. 3), Compounder of Nanda Nagar Hospital has stated that the sterilisation operation of appellant No. 1 was done on 3-9-1992. Rajkumar Pandey (P.W. 4), Record Keeper of MY Hospital has stated that the appellant No. 1 was admitted in MY Hospital and the delivery had taken place on'21-4-1993. Dr. (Smt.) K. Bhagwat (P.W. 5), Professor and HOD of the Gynic Department of MY Hospital has stated that on 21-4-1993, Umabai had given birth to a daughter and the delivery was normal. The relevant documents relating to the sterilisation operation as well as the subsequent pregnancy and delivery of the appellants have been exhibited in the suit. 8. From the evidence on record, it has been established that the appellant No. 1 was operated for sterilisation by respondent No. 4 in the Nanda Nagar Hospital on 3-9-1992. Thereafter, it was detected that the appellant No. 1 was pregnant. She was admitted in the MY Hospital, where she had given birth to appellant No. 2 on 21-4-1993. Before the sterilisation operation of the appellant, the respondent No. 4 had got her pregnancy test done, the report of which is Exh. P-6-C showing the result "negative". 9. Dr. (Smt.) K. Bhagwat (P.W. 5) has stated that the appellant No. 1 had given birth to the child after 8 or 9 months pregnancy. Before the sterilisation operation of the appellant, the respondent No. 4 had got her pregnancy test done, the report of which is Exh. P-6-C showing the result "negative". 9. Dr. (Smt.) K. Bhagwat (P.W. 5) has stated that the appellant No. 1 had given birth to the child after 8 or 9 months pregnancy. The sterilisation operation was done by the respondent No. 4 on 3-9-1992 whereas the delivery of the child had taken place on 21-4-1993, i.e., about1 seven months after the sterilisation operation, therefore, in view of the statement of P.W. 5, about 8-9 months pregnancy, it can be held that the appellant No. 1 was pregnant at the time of the operation itself, but, in the pregnancy test (Exh. P-6-C), the report was negative, hence the respondent No. 4 acting on that report had performed the operation. Thus, it cannot be held that the sterilisation operation performed by the respondent No. 4 had failed. 10. Even otherwise, the statement of P.W. 1 to P.W. 5 do not disclose any negligence on the part of the respondent No. 4 in performing the sterilisation operation. The Supreme Court in the matter of State of Haryana and others Vs. Raj Rani, reported in AIR 2005 SC 3279 , has held that unwanted pregnancy despite sterilisation operation can occur de hors negligence by Doctor and the Doctor cannot be made to pay compensation without proof of negligence. The Supreme Court has held thus :- "3. A 3-Judge Bench of this Court has held in State of Punjab Vs. Shiv Ram and others, C.A. No. 5128 of 2002, decided on August 25, 2005 that child birth in spite of a sterilisation operation can occur due to negligence of the Doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation. The Doctor can be held liable only in cases, where the failure of the operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognised the percentage of failure of the sterilisation operation due to natural causes to be varying between 0.3%. to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. Several textbooks on medical negligence have recognised the percentage of failure of the sterilisation operation due to natural causes to be varying between 0.3%. to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. The fallopean tubes, which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient Doctor successfully by adopting a technique recognised by medical science. Thus, the pregnancy can be for reasons de hors and negligence of the Surgeon. In the absence of proof of negligence, the Surgeon cannot be held liable to pay compensation. Then the question of the State being held vicariously liable also would not arise. The decrees cannot, therefore, be upheld." 11. The Division Bench of this Court in the matter of Smt. Radha Ujjainkar Vs. State of M.P. and others, reported in 2008(4) M.P.H.T. 223 (DB) = 2008 (4) MPLJ 126 , has also taken the same view and has affirmed the judgment of the Trial Court in similar situation, where suit for recovery of damages alleging negligence by the Doctor in performing LTT and MTP operation was dismissed, since the negligence on the part of the Doctor was not proved. The Division Bench has taken the view that failure may occur in such cases even without negligence of the Doctor and to claim compensation, it has to be proved that a reasonable standard of care was not taken in operation. 12. In the present case, there is no such evidence on record that reasonable standard of care was not taken in the operation. There is also no material on record to establish the negligence on the part of the respondent No. 4 in performing, the sterilisation operation of appellant No. 1. 13. Keeping in view the aforesaid analysis, we do not find any force in the present appeal, which is accordingly dismissed.