BHARUCHA DISTRICT PANCHAYAT Vs. KANUBHAI RAIJIBHAI PATEL

JUDGEMENT

(1.) All these appeals raise a question of failure of family planning operation and birth of a child in spite of the family planning operation. It is alleged by the original plaintiffs that the operation failed because of the negligence of the doctor and, therefore, the doctor, the hospital and the employer are liable for damages. The Trial Courts have decreed the suits for different amounts ranging from Rs. 46,000/- to Rs. 89,000/-. Two sets of appeals, i.e.' First Appeals Nos. 145 to 150" df 1990 are arising out of three suits. The first set of three appeals is filed by the District Panchayat and the other set of three appeals is filed by the State Government.Their challenge is the same and identical. In each of these cases, identical amount of Rs. 70,000/- has been awarded. In First Appeal No. 1090 of 1987, the award is of Rs. 89,800/-In First Appeal No. l762 of 1987 the award is for Rs. 41,700/-. In First Appeals No. 1856 of 1990 and 74 of 1993, the award is of Rs. 35,000/- and Rs. 42,000/- respectively. The dates of operation, dates of birth and the dates of filing of the suits are as follows: F.A. No. Date of Date of Date of operation birth suit 145/90 27-12-1980 27-1-1984' 4-9-1986 146/90 10-1-1984 20-9-1984 4-9-1986 147/90 25-5-1982 tO-li-i984 3-10-1986 148/90 10-1-1984 20-9-19*4 4^9-1986 149/90 23-12-1980 27-1-1984 2-9-1986 150/90 25-5-1982 10-11-1984 3-10-1986 1090/87 27-9-1980 1-2-1982 4-4-1985 1762/87 13-2-1978 2^11-1978 15-2-1980 1856/90 27-7-1983, - 30-1-1984 74/93 3-1-W81 4-10-1983 13-2-1985

(2.) The learned Counsel for the appellants have submitted that the Lower Courts have erred in holding that there is negligence on the part of the doctor in performing the operation merely on the allegation that the family planning operation had failed and the pregnancy and the birth which was to be prevented had taken place and as a consequence, the defendants are liable for their negligence and for damages. The learned Counsel for the appellants has submitted that the Lower Court have erred in taking a too simplistic view of the whole matter. It is assumed that when the operation failed, it is necessarily due to the negligence of the operating surgeon. It is taken as if that the doctor has performed the operation; operation has failed and this speaks for itsejf and the doctrine of res ipsa loquitur has come into play and that the doctor is necessarily negligent. In fact, that is the argument of the plaintiffs and has been accepted by the Trial Court and it is required to be tested.

(3.) The learned Counsel for the appellants has drawn our attention to a Population Report on Female Sterilization published in May 1985 by the Population Information Program, the Johns Hopkins University, Baltimore, Maryland, USA. Therein, it is observed that the most common reasons for pregnancies after sterilization are a pregrian6y already conceived but too early to recognize, a surgical error in identifying a fallopian tube, spontaneous rejoining of a severed tube, or formation of a new passage in the tube that allows sperm and ovum to meet. In the rare cases, when pregnancies occur after sterilization, they are more likely to be ectopic (implanted outside the uterus) and, therefore, require prompt medical attention.