Dismissed

Surma Devi v. State

Himachal Pradesh HC2 May 2013RSA/237/2012

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against the dismissal of a suit for damages alleging medical negligence during a sterilization operation. The court held there was no negligence, noting the consent form warned of potential failure. The court also noted the appellant failed to serve Section 80 CPC notice to the doctor.

What did the court decide?

The appeal was dismissed with no order as to costs.

Surma Devi Vs State — Medical Negligence | Himachal Pradesh HC (2013)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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R.S.A. No.237 of 2012-B.

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Judgment reserved on: 18.04.2013.

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Date of decision: 02.05.2013.

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Smt. Surma Devi. …..Appellant/Plaintiff.

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Versus

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State of Himachal Pradesh & others.

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…..Respondents/Defendants.

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Coram

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The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?¹ No

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For the appellant : Mr.G.R.Palsra, Advocate.

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For the respondents : Mr.M.L.Chauhan, Additional Advocate General, for respondents No. 1 and 2.

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Mr.Malay Kaushal, Advocate, for respondent No.3.

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Kuldip Singh, Judge .

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The plaintiff has assailed the judgment, decree dated 17.01.2012 passed by learned District Judge, Mandi, in Civil Appeal No.11/2011, affirming judgment, decree dated 01.03.2011 passed by learned Civil Judge (Senior Division), Mandi, in Civil Suit No.33/2007, dismissing the suit of the appellant.

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The facts, in brief, are that appellant, a married woman, has three daughters and one son. She with the consent of her husband

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had undergone sterilization operation in a camp organized by the

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Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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respondents at Pandoh on 26.11.2005. She was operated by respondent No.3 and Dr. Ashwani Kumar Sharma, who was impleaded as defendant No.4 in the suit, but deleted from the array of respondents at the instance of appellant in the appeal. The further case of the appellant is that she observed all precautions up to required period and did not cohabit with her husband, but thereafter she conceived and became pregnant. On medical check-up, the probable date of delivery was indicated 10.12.2006. The appellant gave birth to Tej Singh on 18.11.2006. It has been alleged that respondent No.3 and Dr. Ashwani Kumar Sharma negligently performed sterilization operation of the appellant and, therefore, she even after sterilization operation conceived and delivered a child on 18.11.2006. She has no means to maintain the child. After serving notice under Section 80 CPC, appellant filed suit for recovery of `5,00,000/- as compensation by way of damages.

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The respondents contested the suit by filing written statement. They took preliminary objections of maintainability, cause of action, estoppel, valuation, non-joinder and mis-joinder of necessary parties, limitation. On merits, they admitted that in the camp organized on 26.11.2005, the appellant had undergone sterilization operation. The appellant before operation was found fit for operation. She voluntarily gave consent for undergoing operation. The consent form was read over and explained to appellant in vernacular and after fully understanding the nature of consent, she put her thumb impression on the consent form voluntarily. The respondents never represented to the appellant that after sterilization operation in no case she would conceive. The appellant was told that sterilization operation is a

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mechanical process and there were chances of failure of such

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operation. The negligence of the doctors or the respondents was

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denied.

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On the pleadings of the parties, the following issues were

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framed:-

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Whether there was medical negligence on the part of defendants Nos. 3 and 4 while conducting operation of the plaintiff, as alleged, if so, to what effect? OPP.

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Whether issue No.1 proved in affirmative, whether the plaintiff is entitled for damages, if so, to what extent? OPP.

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Whether the suit is not maintainable in the present form? OPD.

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Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD.

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Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD.

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Whether the suit is bad for want of notice U/S 80 of CPC against the defendant No.4, if so, to what effect? OPD.

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Whether the suit is barred by limitation? OPD.

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Whether the application under Order 33 of CPC was not properly filed in accordance with law, as alleged, if so, to what effect? OPD.

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Relief.

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The issues 1,2,5,7 and 8 were answered in negative, whereas, issues 3,4 and 6 in affirmative and the suit was dismissed by learned trial Court on 01.03.2011. The first appeal was dismissed on 17.01.2012.

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I have heard the learned counsel for the parties and have also gone through the record. PW-1 Surma Devi has stated that she was operated in the Family Planning Camp at Pandoh by defendants 3 and 4. She gave birth to two sons after the operation. The defendants 3 and 4 negligently performed the operation. One child was born

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before the filing of the suit and another after the filing of the suit. In cross-examination, she has stated that she had not given any notice to defendant No.4 nor took permission to file suit against him without serving notice. She admitted her thumb mark on consent mark D-1 voluntarily. She has also stated that she could not have been operated without obtaining her consent. She also admitted that she did not approach defendants 3 and 4 on the stopping of her menstruation. PW-5 Bhoma Devi has stated that she had accompanied plaintiff to Pandoh where she was operated by two doctors. In cross-examination, she has stated that Kunj Lal, husband of plaintiff, was also with her. Surma Devi of her own had gone for the operation. The consent forms of Sumra Devi and others were filled in before the operation. At that time, it was disclosed that operation could fail.

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DW-1 Dr. Ashwani Sharma has stated that on 26.11.2005 family planning sterilization camp was organized at B.B.M.B., Pandoh. He attended that camp in the capacity of Surgeon. The terms and conditions of the application and consent form were explained to plaintiff before the operation. She was told that the operation could fail. She was told that in the event of missing of menstruation, she should contact him or any nearby hospital within two weeks. The plaintiff after understanding the terms and conditions of the application and consent form mark D-1 exhibited as Ex. DW1/A put her thumb mark. She was medically examined. The plaintiff on missing of menstruation did not report at any Medical Centre. He was the incharge of the camp and performed the operation.

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It is admitted case of the parties that appellant was operated in the sterilization camp at Pandoh on 26.11.2005. It has not

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been denied by respondents that after sterilization of appellant on 26.11.2005, she gave birth to two children. The short question involved in the appeal is whether respondents could be blamed for the conception of appellant after her sterilization operation. It is the case of the respondents that sterilization operation of a woman is not foolproof operation, there is possibility of failure of such operation. In other words, even after operation in some cases conception is possible. Exhibit DW1/A is the application and informed consent for sterilization operation. The appellant has admitted her thumb impression on Ex. DW1/A.

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The sterilization operation was conducted by Dr.Ashwani Kumar Sharma. There is no worth-believing evidence to record a finding that Dr.Ashwani Kumar Sharma negligently performed the operation. The appellant has admitted that after stopping her menstruation after operation, she did not consult doctor, she even delivered two children after the sterilization operation, one before the filing of the suit and another after the filing of the suit. This indicates that appellant was not opposed to births of two children even after her sterilization operation.

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In State of Punjab versus Shiv Ram and others, AIR

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2005 SC 3280 , it has been held that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The surgeon cannot be held liable in contract unless plaintiff alleges and proves that the surgeon

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had assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. In the consent form Ex.DW1/A which has been thumb marked by the appellant, it has been stated that there are still some chances of failure of the operation, for which hospital/institution and operating doctor will not be held responsible. It emerges from the consent form that appellant before the operation was informed that sterilization operation did not mean 100% assurance to appellant that she would not conceive after the operation.

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This apart, appellant in her statement has admitted that she had not given notice under Section 80 CPC to Dr. Ashwani Kumar Sharma nor she obtained leave of the Court for filing the suit against said doctor without serving notice. The appellant moved an application for deletion of respondent No.4 Dr. Ashwani Kumar Sharma which was allowed on 04.04.2013 subject to all just exceptions. Dr. Ashwani Kumar Sharma performed the sterilization operation of the appellant, but appellant got the name of Dr. Ashwani Kumar Sharma deleted from the appeal. In other words, the appellant has no grievance against Dr.Ashwani Kumar Sharma. The suit of the appellant against Dr.Ashwani Kumar Sharma along with others has already been dismissed by the two Courts below. The learned District Judge has affirmed the judgment, decree of the trial Court after appreciation of evidence. The findings recorded by two Courts below are findings of facts. It has not been established that any material evidence has been ignored or inadmissible evidence has been considered by the Courts below in dismissing the suit of the appellant. There is no infirmity in the

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impugned judgment, decree. No substantial question of law is involved

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in the appeal. There is no merit in the appeal.

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In view of above, appeal fails and is accordingly dismissed

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with no order as to costs.

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May 2, 2013. ( Kuldip Singh), (krt) Judge.

Surma Devi v. State

Case brief

What is this about?

What did the court decide?

Surma Devi v. State

Case brief

What is this about?

What did the court decide?

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