Dismissed

Janaki v. Dr.Vasantha R,Ganguli

Kerala HC5 Mar 2018AS/114/2003

Case brief

AI extract

What is this about?

The High Court of Kerala, Ernakulam, dismissed an appeal in a compensation suit for alleged negligence in a laproscopic sterilization surgery. The court held that the appellant failed to prove negligence or that the respondents made a foolproof representation, thus the trial court was correct in dismissing the claim under the Revenue Recovery Act.

What did the court decide?

The appeal is dismissed with an order to realize court fees from the appellant under the Revenue Recovery Act.

Janaki Vs Dr.Vasantha R,Ganguli — Constitutional and Fundamental Rights | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

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MONDAY, THE 5TH DAY OF MARCH 2018 / 14TH PHALGUNA, 1939

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AS.No. 114 of 2003

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--------------------AGAINST THE JUDGMENT IN OS 52/1992 OF SUB COURT, MANJERI DATED 30-06-1999

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APPELLANTS/PLAINTIFFS:

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1. SMT.JANAKI, W/O.VIJAYAN,

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AGED 41 YEARS, MUTHALODY PURAYA HOUSE,, CHAKKUMMAD,

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CHELEMBRA, MALAPPURAM DISTRICT,, CHELEMBRA AMSOM.

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2. SHRI VIJAYAN, S/O. GOPALAN,

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AGED 45 YEARS, MUTHALODY PURAYA HOUSE,, CHAKKUMMAD, CHELEMBRA, CHELEMBRA AMSOM IN ERNAD TALUK,

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MALAPPURAM DISTRICT.

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BY ADVS.SRI.JACOB ABRAHAM

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SRI.JACOB ABRAHAM

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RESPONDENTS/DEFENDANTS:

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1. DR.VASANTHA R,GANGULI,

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SUSURUSHA NURSING HOME HUBLI, KARNATAKA.

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2. MEDICAL OFFICER, PRIMARY HEALTH CENTRE, KONDOTTY.

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3. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM.

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4. STATE OF KEALA REPRESENTED BY DISTRICT

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COLLECTOR, MALAPPURAM.

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R1-4 BY ADV. GOVERNMENT PLEADER (BY ORDER) SRI.SYAMJIRAM

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THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 05-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.ABRAHAM MATHEW, J.

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A.S.No.114 of 2003

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Dated this the 5^th day of March, 2018

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JUDGMENT

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The appellant whose suit for compensation has been dismissed by the trial court is the appellant. The respondents were the defendants. The first respondent was a doctor in the employment of the 4^th respondent State of Kerala.

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The government advised people to resort to laproscopic sterilization representing that it was a fault free and foolproof. Believing this representation, at the camp held on 21.7.1988 at a Primary Health Centre, the appellant underwent laproscopic sterilization surgery. But she conceived a child, who was born on 8.7.1989. The surgery was a failure. It was due to the negligence of the first respondent who conducted the surgery the sterilization failed. On these allegations the appellant prayed for Rs.1,15,000/- as compensation with interest at 12% per annum. The first respondent filed a written statement and the other defendants a joint written statement. They denied that they made a representation that the surgery would be successful. They also denied

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A.S.No.114 of 2003 2

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there was negligence on the part of the first respondent. The trial court found that the appellant failed to adduce evidence to prove negligence on the part of the first respondent and accordingly dismissed the suit. This is challenged in this appeal.

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Heard the learned counsel for the appellant and the learned Government Pleader.

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It is not in dispute that the foundation of the appellant's claim is negligence of the first respondent in conducting the surgery and she has failed to adduce evidence to prove it. Learned counsel for the appellant submits that even in the absence of proof of negligence the appellant is entitled to compensation, for which he relies on the decision of a division bench of this court in State of Kerala v. Santa and Others (2015 (1) KLJ 509).

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In Santa's case the court accepted the plaintiff's case that the government assured “the credibility and foolproof nature of mini lap sterilization procedure.” But in this case, no such evidence is available. That apart, it is seen from Ext B1 application filed by the appellant that she was aware that the surgery might not be successful in every case. So the decision in Santa is of no help to the appellant.

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A.S.No.114 of 2003

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6. In State of Haryana and Others v. Smt. Santra (AIR 2000

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Supreme Court 1888) the Supreme Court took the view that only on proof of negligence compensation can be awarded for medical negligence. In that case, the plaintiff was assured that full, complete and successful sterilization operation had been performed upon her and she would not conceive a child in future, but later she conceived a child. It came out in evidence that the surgery was done only on the right fallopian tube and the left one was not at all touched. So it was a case of negligence perse.

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A division bench of this court dealt with the same question in State of Kerala and Another v. P.G.Kumari Amma and Another (2011

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(1) KHC 102) . The trial court held that there was negligence on the part of the defendants and directed them to pay compensation to the plaintiff. In that case the evidence revealed that the ring inserted during the surgery was found on the right side of Megosalaphenx, a membrane covering the fallopian tube. It proved that the fallopian tube was free. The court took the view that that could have been the reason for the subsequent pregnancy. It was a case of incomplete sterilization.

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A.S.No.114 of 2003 4

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Thus, the appellant failed to prove that there was negligence on the part of the first respondent in conducting the surgery or there was representation on the part of respondents that the surgery would be hundred percent successful. The trial court rightly found that she is not entitled to compensation.

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In the result, this appeal is dismissed. If court fees has not been paid on the appeal memorandum, it shall be realised from the appellant under the Revenue Recovery Act.

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K.ABRAHAM MATHEW JUDGE

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Janaki v. Dr.Vasantha R,Ganguli

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Janaki v. Dr.Vasantha R,Ganguli

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