FAMILY PLANNING ASSOCIATION OF INDIA Vs. SHANTI DEVI

JUDGEMENT

(1.) THE respondent No.1, Smt. Shanti Devi, filed suit for damages impleading M/s. Family Planning Association of India and Union of India as the defendants. The suit was decreed vide judgment and decree dated 17.4.2006 and impugning this judgment, both the defendants have filed the present appeals. The appeals were, therefore, taken up for arguments together and are being disposed of by this common judgment.

(2.) THE case set up by the plaintiff was that after the birth of her 7th child, she contacted the officials of the defendant No.1 (M/s. Family Planning Association of India) for sterilization as she did not want to have more children keeping in view the meager income of her husband and the fact that she was already the mother of 7 children. As per the advice, she underwent the operation of tubectomy on 1.5.1998. She was issued a certificate of sterilization being Certificate No. 0131127 dated 1.5.1998. However, to her utter surprise, she became pRegulation nt after two years from the date of the aforesaid operation and delivered a female child on 24.5.2001. On the ground that this pRegulation ncy occurred due to the negligence of doctors of the hospital, which caused a great physical pain, mental loss, mental agony and also difficulty in bringing up the 8th child, she claimed damages to the tune of Rs. 4,00,000/- for her loss, agony, damages and expenses incurred and to be incurred in future. The suit was filed as indigent person. The application to sue as an indigent person was allowed by the learned trial court. Both the defendants filed their written statements and contested the suit. On the basis of pleadings, following issues were framed:-

(3.) PERUSAL of the judgment of the learned trial court would show that while discussing this issue, learned trial court has concluded that as the plaintiff became pRegulation nt in spite of the sterilization operation, it has to be concluded that the defendants conducted the said operation with negligence, which resulted into the birth of additional child. There is no more discussion by the learned trial court in this aspect. Thus, it is clear from the discussion that, as per the learned trial court, if after the sterilization operation pRegulation ncy occurs, negligence has to be attributed to the doctors who conducted the operation. We are afraid, this is not the correct approach adopted by the learned trial court.