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2016 DIGILAW 475 (CHH)

State of C. G. v. Firtin Bai

2016-11-09

CHANDRA BHUSHAN BAJPAI

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JUDGMENT : Chandra Bhushan Bajpai, J. By filing the first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short 'the Code'), the appellants have challenged the legality and propriety of judgment and decree dated 27.02.2003 whereby and wherein the learned Additional District Judge, Korba, has decreed the suit filed by respondent No. 1/plaintiff against the present appellants and ordered that the present appellants shall pay respondent/plaintiff an amount of Rs.2 lakh as compensation along with interest and cost of the suit. As per para 21 of the Judgment and decree, the appellants deposited Rs. 1,00,000/- on 10.6.2003 and cost of the suit on 17.6.2003. 2. Brief facts of the civil suit filed by respondent No.1/plaintiff are that on 09.01.1986 respondent No.1 underwent sterilization operation in a camp conducted at NTPC Hospital Dari. Thereafter on 16.8.1987 despite the said laparoscopic tubectomy,' respondent No.1 gave birth to a female child Neera and thereafter on 07.02.93 another male child Shiv Kumar was born. Respondent No. 1 preferred a suit before the District Consumer Forum. The said Forum vide order dated 13.10.97 directed respondent No. 1/plaintiff to file a civil suit. Thereafter on 06.8.98 respondent No.1/plaintiff filed a civil suit for compensation. The said Civil Suit No. 5B/2002 was disposed of by the Court below after affording opportunity to the parties by adducing their pleadings, after formulations of issues, evidence and vide judgment and decree dated 27.02.2003 directed the appellants/defendants 1 & 2 to pay an amount of Rs. 02 lakh as compensation to the plaintiff/respondent No. 1 along with interest and the cost of the suit. Against the said judgment both the appellants preferred the instant appeal. 3. Grounds taken by the appellants are that the plaintiff had filed the suit 11 years after the birth of first female child and five years after the birth of second male child. Husband of respondent No. 1 died during the pendency of the suit. Against the said judgment both the appellants preferred the instant appeal. 3. Grounds taken by the appellants are that the plaintiff had filed the suit 11 years after the birth of first female child and five years after the birth of second male child. Husband of respondent No. 1 died during the pendency of the suit. The plaintiff has not disclosed when she preferred the suit for compensation before the Consumer Forum and if for the moment, it is assumed that the suit before the Consumer Forum was filed in the year 1997 even then as the suit filed before the Court below on 06.8.98 was barred by limitation as respondent No.1 had taken the wrong forum and had not filed civil suit for compensation within three years of birth of her first child on 16.8.87. Further ground taken that even after the birth of first female child, respondent No.1 was aware of the alleged failure of said operation, with this, for the compensation for second male child the appellants are not responsible. Even if the operation became failure due to natural causes, respondent No.1 should have consulted a doctor after missing of her menstrual cycle for medical advise regarding termination of pregnancy if they do not want the birth of the said child. It is further taken a ground that the plaintiff/respondent No.1 examined four witnesses but had not examined any doctor to demonstrate the negligent act of the doctor who conducted the said operation and as the negligent act of such doctor is not proved, the Court below erred in decreeing the suit against the appellants. 4. I have heard learned counsel for the appellants and perused the record of Court below including the impugned judgment and decree. 5. Learned counsel for the appellants vehemently argued that as respondent No.1 has utterly failed to prove the negligent act of respondent No. 2, the appellants are not responsible to pay the compensation. Moreover, respondent No.1 filed the suit barred by limitation. Even respondent No.1 had not visited the doctor immediately after stopping of her menstrual cycle, after the said operation, for termination of the pregnancy under the Medical Termination of Pregnancy Act. 1971. If the operation is a failure due to natural causes, the appellants are not responsible for paying any compensation to respondent No.1. Even respondent No.1 had not visited the doctor immediately after stopping of her menstrual cycle, after the said operation, for termination of the pregnancy under the Medical Termination of Pregnancy Act. 1971. If the operation is a failure due to natural causes, the appellants are not responsible for paying any compensation to respondent No.1. Also otherwise after the birth of first female child, respondent No. 1 was aware of failure of said operation and without taking any precautionary measure, she proceeded further and gave birth to the second child. Learned counsel for the appellant further submits that on account of negligent act of respondent No.1, she gave birth to the second child, for this the appellants are not responsible for paying any compensation. 6. Learned counsel placed reliance on State of Haryana and others v. Raj Rani AIR 2005 SC 3279 wherein the Hon'ble Apex Court held that in case of unwanted pregnancy despite sterilization operation, such pregnancy can occur de hors negligence by doctor, the doctor cannot be made to pay compensation without proof of negligence. Learned counsel placed further reliance on State of Punjab v. Shiv Ram and others AIR 2005 SC 3280 and draws attention of this Court in para 26, 27, 28 and 29 and would further add that in case of failure due to natural cause, respondent No.1 has not acted as required from her for termination of said pregnancy for the first time after consultation of the doctor immediately when she missed the menstrual cycle and also as respondent No. 1/plaintiff failed to prove the negligent and careless act of the doctor, the appellants are not responsible for any compensation. Learned counsel would further add that in compliance of the judgment and decree they have deposited Rs. 1,00,000/- on 10.6.2003 and further deposited the cost of the suit on 17.6.2003 and as respondent No.1 failed to prove negligent and careless act of the appellant or the doctor who operated respondent No.1, the appeal filed by the appellants may be allowed and the judgment and decree passed by the court below may be set aside. 7. In order to appreciate the arguments advanced I have perused the evidence adduced by the parties pleading and other facts. 8. Upon close scrutiny of the evidence makes it clear that negligent and careless act of respondent No.2 is not proved before the trial Court. 7. In order to appreciate the arguments advanced I have perused the evidence adduced by the parties pleading and other facts. 8. Upon close scrutiny of the evidence makes it clear that negligent and careless act of respondent No.2 is not proved before the trial Court. Also the said suit was time barred as respondent No.1 had approached the civil court after 11 years of birth of first female child after sterilization operation. It is apparent that respondent No.1 never consulted any doctor for advice and termination of said pregnancy after she missed the menstrual cycle and acted further for the termination. After first pregnancy and subsequent birth, respondent No.1 was aware of the failure of said operation. But she had not taken care of this fact gave birth to second child goes to show that the negligent and careless act of respondent No.1 and not of the appellants. Prima facie the plaintiff/respondent No.1 approached to the Court below by filing the said civil suit after 11 years of birth of first child and if she approached to the consumer forum she herself is responsible for the choosing wrong forum. 9. On perusal of the law is reiterated by the apex Court, the same are applicable for the facts of the present case. 10. This court is of the considered view that the Court below erred in holding that the appellants are responsible for payment of compensation to respondent No. 1/plaintiff. 11. Consequently, the appeal is allowed. Judgment and decree passed by the Court below is hereby set aside. The suit filed by the plaintiff/respondent No.1 is dismissed. Further in the light of law cited in State of Punjab v. Shiv Ram AIR 2005 SC 3280 (supra) upon considering the entire facts, amount of Rs. 1,00,000/- and the cost of the suit if already paid to the plaintiff/respondent No.1 shall not be liable to be refunded by way of restitution. No order as to cost.