ALICE GEORGE Vs. LAKSHMI

JUDGEMENT

(1.) THIS second appeal is preferred by the defendants whose defence plea was rejected by both the Courts below in a suit for recovery of damages of Rs. 1,00,000/- by the respondent/plaintiff.

(2.) WHEN the matter came up for consideration, notice was ordered. The respondent/plaintiff appears through her Counsel.

(3.) THE plaintiff originally filed the suit for damages of Rs. 1,00,000/- alleging that she has three children; that taking into consideration the family circumstances, she decided to undergo family planning operation with the third child a girl, which was born in 1987; that all the children were born in the second defendant's hospital, and thus, they were aware of the plaintiff's health and family circumstances; that on their instructions and on consultation with the staff of the second defendant including the first defendant, she gave her consent to undergo the family planning operation immediately after the third child was delivered; that she came forward to undergo the family planning operation taking into consideration her deteriorating health and also the financial condition; that with the existing financial condition, the economy cannot allow any further expansion of the family, which would not only endanger her health, but also jeopardize the entire family, since the family was struggling; that Antipartun Sterilization by Laproscopy/tubectomy was done by the first defendant in the branch of the second defendant hospital in March 1987; that the plaintiff and her husband were assured that there will not be any child birth; that only on that assurance, she underwent the said family planning operation; but, to her surprise, she became pregnant for the fourth time; that her health was too feeble to contemplate the termination of pregnancy; that in fact, she was advised by the defendants not to undergo any abortion; that the fourth child was born on 30. 12. 1990 at her house even before she could move to the hospital; that the said child had weakened her health; that she became virtually immobile and unable to attend even her personal works and needs such as cooking, house keeping, etc. ,; that the husband of the plaintiff was the only earning member; that as a coolie, he was earning Rs. 500/-; that the fourth child was therefore a result of the negligence of the first defendant in the course of employment; that under the circumstances, the second defendant was vicariously liable; that but for the failure of the operation, the plaintiff would not have been assured that there would not be any addition to the family; that not only the plaintiff's has suffered a setback in health, but also the entire family is suffering; that there is nobody to take care of the members of the family; that the fourth child birth has resulted due to the negligence of the defendants; that under the circumstances, they are jointly and severally liable to compensate the plaintiff; that she estimated the damages at Rs. 1,00,000/- taking into consideration the present inflationary value of the rupee, cost of living and also the non-availability of any other source of income to the family of the plaintiff, and after issuing a notice, the plaintiff filed the suit for damages.