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Madhya Pradesh High Court · body

2019 DIGILAW 731 (MP)

State of M. P. v. Gokulbai

2019-10-17

VANDANA KASREKAR

body2019
JUDGMENT 1. The appellants have filed the present appeal under 96 of the C.P.C., challenging the judgment and decree dated 1.11.2001 passed by the First Additional District Judge, Shajapur in C.O.S. No.12-A/2001, thereby decreed the suit preferred by the respondent. 2. Brief facts of the case are that, the plaintiff/respondent was operated at Primary Health Centre, Gulana for Tubectomy (Nas-Bandi). This operation was performed by the Medical Officer i.e. appellant No. 3 on 29.11.1994. The plaintiff/respondent after six years of the said operation became pregnant and therefore, she filed a civil suit for damages of Rs. 4,53,100/-. It is alleged that, due to negligence of the doctor, she became pregnant after six years. The trial Court after hearing both the parties and recording the evidence, has partly decreed the suit and awarded the damages of Rs. 1,33,000/- with interest at the rate of 9% per annum. Being aggrieved by the said judgment the appellants have filed the present appeal. 3. Learned counsel for the appellants submits that, the Court below has erred in presuming that the operation was performed negligently. He submits that there is no iota of evidence about negligence of the appellant No. 3 in performing the alleged operation. He further submits that the operation of Tubectomy is preformed at sweet will of the party and not under any contract i.e. it is voluntary service to help the people. He further submits that as there is no privity of contract, therefore, the appellants are not liable to pay any damages. It was the duty of the plaintiff to report the pregnancy to the doctor in-charge of the Health Centre where she was operated so that he could have investigated the matter and could have found the cause of the failure of the operation. Neither the government nor the doctor concerned give any guarantee of the operation and on the contrary the patient is directed to follow the instructions given in the application form. He also submits that, out of thousand cases, operation may fail due to unknown factors of the human body. Thus, the judgment passed by the Court below is illegal and deserves to be set aside. 4. On the other hand, the learned counsel for the respondent supports the judgment passed by the Court below. He also submits that, out of thousand cases, operation may fail due to unknown factors of the human body. Thus, the judgment passed by the Court below is illegal and deserves to be set aside. 4. On the other hand, the learned counsel for the respondent supports the judgment passed by the Court below. He submits that, the Court below in paragraph 18 of the impugned judgment had given a finding that there was negligence on the part of the doctor, who has performed the operation of the plaintiff. He further submits that, in the present case, the operation was performed in a camp in which the appellant has failed to prove that the place on which the operation was performed was fully well equipped. The doctor has never told the plaintiff that what precautions have to be taken in case if the operation is failed. In the light of the aforesaid finding, the impugned judgment and decree passed by the learned trial Court is just and proper and does not call for any interference. He relied on the judgment passed by the apex Court in the case of State of Haryana and others v. Smt. Santra : reported in AIR 2000 SC 1888 as well as the judgment passed by this Court in the case of State of M.P. and others v. Asharam : reported in1996 J.L.J. 630. 5. Heard the learned counsel for the parties and also perused the record as well as the impugned judgment and decree. 6. In the present case, the plaintiff has filed a civil suit claiming the damages of Rs. 4,53,100/- on the ground that she was operated for Tubectomy, which has been failed after a period of six years and she got pregnant and delivered a child. It has further been alleged in the plaint that, the plaintiff/respondent is a poor lady and she is already having two sons and therefore, she is not in a position to maintain the third child. In such circumstances, she claimed for damages against the appellants. The Court below, after appreciating the evidence on record, has held that the appellant No. 3 has committed negligence in performing the operation and therefore, partly decreed the suit by awarding damages of Rs. 1,33,000/- to the respondent/plaintiff. Being aggrieved by the said judgment and decree the appellants have filed the present appeal. 7. The Court below, after appreciating the evidence on record, has held that the appellant No. 3 has committed negligence in performing the operation and therefore, partly decreed the suit by awarding damages of Rs. 1,33,000/- to the respondent/plaintiff. Being aggrieved by the said judgment and decree the appellants have filed the present appeal. 7. The appellants in their written statement have taken a defense that the respondent did not contact the doctor concern or any Health Centre after she got pregnant and if she would have contracted any medical Health Centre then the child could have been aborted. The appellants further stated that the respondent is a financially sound lady and she is able to maintain the third child also. The Court below in paragraph 14 of the impugned judgment and decree has held that, the appellants have failed to prove that the place on which the operation was performed was fully well equipped and it has been informed to the plaintiff that what steps she should be taken in case if the operation is failed. In the present case, the Camp was held in a remote area and it was the duty of the doctors to inform the patients regarding the failure of the operation. 8. This Court in the case of State of M.P. and others (supra) in paragraphs 18 and 19 has held as under : "18. I have briefly stated about the evidence. As I am in general agreement with the view taken by the trial Court, I find it unnecessary to state the effect of the evidence or document the narration in details. In AIR 1967 SC 1124 (Girijanandini Devi and others v. Bijendra Narain Choudhary), it is held as under : "It is not the duty of the appellate Court when it agrees with the view of the trial Court on the evidence or to reiterate the reasons given by the trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice." 19. In 1948, Dinning J. in Robertson v. Minister of Pensions (1949) 1 KB 227 laid the foundation of promissory estoppels in public law. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice." 19. In 1948, Dinning J. in Robertson v. Minister of Pensions (1949) 1 KB 227 laid the foundation of promissory estoppels in public law. Prof.De.Smith in his Judicial Review of Administrative Action, 4th Edition at page 103 observed that : "The citizen is entitled to rely on their having the authority that they have asserted ." Here the citizen (respondent) believed that the appellants had the authority to hold camps, perform operations and benefit individuals and the nation. Now if results are adverse, the appellant should take themselves as stopped from opposing the just claim. Law has a promise to keep to justice. Where is the scope for acrobats. " Similarly, the apex Court in the case of State of Haryana and others (supra) has held as under : "The respondent had undergone a sterilization operation at the General Hospital, as she already had seven children and wanted to take advantage of the scheme of sterilization launched by the State Government. She underwent the Sterilization Operation and she was issued a certificate that her operation was successful. She was assured that she would not conceive a child in future. But, as the luck would have it, she conceived and ultimately gave birth to a female child. Respondent was a poor lady who already had seven children. She was already under considerable monetary burden. The unwanted child ( girl) born to her has created additional burden for her on account of the negligence of the doctor who performed sterilization operation upon her and, therefore, she is clearly entitled to claim full damages from the State Govt. as well as doctor to enable her to bring up the child at least till she attains puberty. Damages for the birth of an unwanted child may not be of any value for those who are already living in affluent conditions but those who are already living in affluent conditions but those who live below the poverty line or who belong to the labour class who earn their livelihood on daily basis by taking up the job of an ordinary labour, cannot be denied the claim for damages on account of medical negligence." 9. Thus, in the light of the aforesaid judgment passed by this Court as well as the apex Court and considering the facts and circumstances of the case, I do not find any error committed by the Court below while passing the impugned judgment and decree. Accordingly, the present appeal is dismissed as such.