Senior Civil Surgeon Cum Vs Renuka

PRAYER : Second Appeal filed under Section 100 of Code of Civil Procedure, praying to set aside the judgment and decree dated 03.10.2017 passed in A.S.No.16 of 2016 on the file of Subordinate Judge, Arakkonam reversing the judgment and decree dated 25.09.2012 passed in O.S.No.117 of 2007 on the file of District Munsif Court, Sholinghur.

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For Appellants : Mr.R.Siddharth Addl. Govt. Pleader For Respondent : Mr.A.Gouthaman

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JUDGMENT

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Challenging the reversal findings of the first appellate court, the defendants 1 to 3 have preferred this Second Appeal. Before the trial court, the respondent/plaintiff filed a suit in O.S.No. 117 of 2007 on the file of District Munsif, Sholinghur against the defendants 1 to 3/appellants herein seeking for the relief of claiming compensation for the negligence on the part of defendants. The said suit contested by the defendants by filing written statement. On hearing both sides, the trial judge framed issues and both parties have adduced evidence. Finally, the suit was dismissed by the

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trial court. Challenging the said findings, she preferred an appeal in A.S.No.16 of 2016 on the file of Sub-Court, Arakkonam, wherein the first appellate judge set aside the findings of trial court and granted the decree in favour of plaintiff. Now, challenging the said reversal findings, this Second Appeal has been preferred.

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For the sake of convenience, parties are denoted as per ranking in the suit.

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Brief facts of the case is as follows :-

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The plaintiff was a housewife and her husband was a construction

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worker. They belong to a poor family. Already they gave birth to two children and due to poverty, she underwent family planning surgery at Government Hospital in the month of June 2001. The 3^rd defendant conducted the surgery of puerperal sterilisation to the plaintiff. Thereafter, the plaintiff got conceived and she gave a birth for another female child on 03.03.2005. Due to the negligence of 3^rd defendant, she gave a birth to another child. Hence, she claimed compensation.

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The 3^rd defendant contested the case stating that there was no negligence on his part as alleged by the plaintiff. Before conducting surgery, the entire facts was clearly explained to her about the consequences of tubectomy operation and the signature of her was also obtained. Even as per the medical research, there is possibility of 1% of failure in conducting the said operation. Therefore, he pleads that he conducted surgery with utmost care and caution.

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On hearing both sides and on considering the evidence on record,

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the trial judge has held that the negligence on the part of 3^rd defendant not proved beyond reasonable doubt and on considering the evidence of P.W.1, the method of sterilisation done to the plaintiff through high technique method adopted by the Government hospital during that period, besides 3^rd defendant is a qualified surgeon with a skill to do sterilisation operation. As per Ex.A3, the reply notice was issued by 3^rd defendant, wherein he specified certain reasons for failure of operation. Therefore, the trial judge held that the negligence on the part of 3^rd defendant was not proved.

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Accordingly, the suit was dismissed. Challenging the said findings, she preferred an appeal in A.S.No.16 of 2016, wherein the first appellate judge had analysed the facts separately and finally by relying the ratio laid down in the authority held by the Apex Court in the case of State of Punjab vs. Shiv Ram and others reported in CDJ 2005 SC 616, the first appellate judge held that the defendants not proved that there is no medical negligence on their part and the plaintiff being an illiterate lady gave a birth to another child even after undergoing sterilisation operation. So, the burden is shifted upon the 3^rd defendant to prove the innocence, but he failed. Therefore, the appeal was allowed by granting the decree in favour of plaintiff. Challenging the said findings, the defendants have preferred this Civil Miscellaneous Appeal.

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Considering the facts and circumstances of the case, this Second Appeal is admitted on the following question of law :-

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“Whether the courts below has misread and misconstrued

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the evidence let in by the respondent and wrongly come to conclusion, thereby allowing the suit and dismissing the appeal?

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The learned Addl. Government Pleader appearing for appellants argue that even after sterilisation of the said surgery, the plaintiff was advised to come for periodical checkup, but she failed, nearly about 3 years after the said surgery, she became pregnant. Hence, there is no negligence on their part and prayed to set aside the findings of first appellate court.

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On seeing of facts, according to the defendants, there is possibility of 1% negligence would be happened in the sterilisation operation. It is an admitted fact that she gave birth to a third female child after sterilisation surgery held in the Government Hospital. It is also an admitted fact that though there is 0.1% possibility of negligence, she has not attended periodical checkup as advised by the doctors. It is an undisputed fact that she is a poor woman and again she gave a birth to a female child. Mostly the sterilisation surgery would be performed on large scale and as a part of family welfare programmes of the Government, obviously such programmes are in public itself. So, to popularise the said programme, the State Government would provide some solace to the persons of illiterate, on

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account of their illiteracy, they are unable to avoid the consequence of a failed sterilisation operation. Therefore, the findings of the first appellate court in A.S.No.16 of 2016 is confirmed. Furthermore, admittedly, now the child is studying 12^th Std. and both parents are working as coolie labours. So, on considering the cost of living as well as fluctuation of price, this Court is inclined to enhance the compensation from Rs.1,00,000/- to Rs.3,00,000/- together with interest at the rate of 6% from the date of filing the suit till realisation. The 2^nd appellant is directed to pay the said compensation within a period of twelve weeks from the date of receipt of copy of this judgment. Accordingly, this Second Appeal is disposed of. No costs. Consequently, connected Civil Miscellaneous Petition is closed.

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22.01.2025

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Index : Yes / No Internet : Yes / No Speaking/Non-speaking order rpp To 1. Sub-Judge, Arakkonam.

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