MEDICAL OFFICER Vs. INDRASINH MATHUR SOLANKI

JUDGEMENT

(1.) THE present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-original defendant no. 1 to quash and set aside the impugned judgment and decree passed by the learned 4th Joint Civil Judge (Senior Division), Vadodara dated 24/08/1999 in Special Civil Suit No. 602/1992 as well as the judgment and order dated 27/06/2008 passed by the learned Additional District Judge, Fast Track Court No. 11, Vadodara in Regular Civil Appeal No. 157/2005.

(2.) RESPONDENTS nos. 1 and 2-original plaintiffs instituted Special Civil Suit No. 602/1992 against the appellant and others in the Court of learned Civil Judge (Senior Division), Vadodara to recover compensation/damages contending interalia that despite there was tubectomy operation performed by the Doctor of the appellant-original defendant no.1, respondent no. 2-original plaintiff no. 2 delivered a baby girl. As such the appellant-original defendant no. 1 did not contest the suit. By judgment and decree dated 24/08/1999 the learned 4th Joint Civil Judge (Senior Division), Vadodara partly allowed the said suit directing the appellant-original defendant no. 1 to pay a sum or Rs. 1,08,000/- to respondents nos. 1 and 2-original plaintiffs with 6% interest from the date of filing of the suit till realization by inferring the negligence on he part of the Doctor, who performed the operation, solely on the ground that despite the tubectomy operation there as a baby child and, therefore, the negligence is inferred. Being aggrieved and dissatisfied with the judgment and decree passed by the learned 4th Joint Civil Judge (Senior Division), Vadodara dated 24/08/1999 in Special Civil Suit No. 602/1992, the appellant-original defendant no. 1 initially preferred First Appeal before this Court and pursuant to the interim order passed by this Court the appellant was directed to deposit the full decretal amount with the learned trial Court and out of which the original plaintiffs were permitted to withdraw 50% of the amount, which the original plaintiffs have withdrawn and the balance 50% of the decretal amount was directed to be invested in the Fixed Deposit (which is reported to be invested in the Fixed Deposit). It appears that thereafter due to the amendment in the Rules the appeal came to be transferred to the learned District Court, Vadodara, which was numbered as Regular Civil Appeal No. 157/2005 and by impugned judgment and order dated 27/06/2008 the learned appellate Court has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court again committing the same mistake, which has been committed by the learned trial Court with respect to inferring the negligence. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below the appellant-original defendant no. 1 has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.

(3.) SHRI Amit Nanavati, learned advocate appearing on behalf of respondents nos. 1 and 2-original plaintiffs has tried to oppose the present Second Appeal by submitting that as respondents nos. 1 and 2-original plaintiffs were not cross examined the learned trial Court has rightly held that there was failure in the operation due to the negligence of the Doctor. However, has submitted that if this Court is of the opinion that both the Courts have committed an error in inferring the negligence, in that case, the matter may be remanded to the learned trial Court to decide the suit on merits and after remanding the matter, parties may be permitted to lead the evidence on the issue of negligence.