MADHUBALA Vs. GOVT OF NCT OF DELHI

JUDGEMENT

(1.) The appellant though unlettered and poor seems to be enlightened enough as far as the need to plan her family is concerned. By 1995, she was already a mother to three biological children. That was the time she thought of sterilization. Goaded by this thought, she went to the Respondent hospital and on the 10th day of November of that very year, got herself operated upon for sterilization little knowing that her womb was still not ordained to become barren. On the 16th day of second month of the year 2000, she was informed that she was yet again in her family way. And exactly, six months thereafter, she became a mother again on her delivering a biological male child. She says the doctors were negligent in performing the surgery for, otherwise, how could she conceive again ? Based on that, she filed a suit for recovery of Rs. 4,50,000/- as damages besides interest thereon @ 18% p.a. The suit was against three defendants, the Government of NCT of Delhi, the Union of India and the Chief Medical Officer, Swami Dayanand Hospital, Shahdara, Delhi, where the surgery was performed.

(2.) The suit was contested only by defendant no.3 (hereinafter referred to as the `Hospital'). The hospital admitted that the appellant had undergone the surgery in question. It also, neither denied the conception nor the birth of the child. It, however, took the plea that no assurance was given that after the surgery she could never conceive. On the other hand, it was alleged that she executed the `Consent Form' admitting therein that she was aware that even after the surgery there were chances of failure and that for such failure, neither the hospital nor the operating surgeon could be held responsible. It was further pleaded that all sterilization procedures had definite failure rate ranging from 1 to 4 pregnancies per thousand women sterilized, and further, that had the appellant informed the hospital about the missed cycle, remedial measures could have been taken.

(3.) The pleadings of the parties led to the framing of the following issues :-