R B ZAFRI Vs. SHYAMABAI

JUDGEMENT

(1.) BEING aggrieved by the judgment dated 16/01/02 passed by District Judge, Shajapur in Civil Suit No.27-A/01, whereby the suit filed by respondent for recovery of Rs.2,00,000/- was decreed in part by passing decree of Rs.90,000/- along with interest @ 9% P.A. on account of unsuccessful family planning operation as compensation, present appeal has been filed.

(2.) SHORT facts of the case are that the respondent filed a suit against the appellants for compensation of Rs.2,00,000/- alleging that the respondent is resident of village Patoli. Tehsil & District Shajapur. It was alleged that the marriage of the respondent was solemnized with one Sajansingh and out of the wedlock respondent was blessed with four children. In the suit it was alleged that since the respondent was not in a position to afford the luxury to maintain more children, therefore, respondent got herself operated on 01.01.99 in the Government Hospital, Shajapur. It was alleged that respondent was operated by Dr. Aruna Vyas. In the suit it was further alleged that after the operation, certificate was issued by the appellants to the respondent. It was alleged that after the operation necessary instructions which were given to the respondent were followed by the respondent. It was further alleged that the respondent was again pregnant and delivered a female child on 20/06/2000. It was alleged that respondent delivered an in wanted child because of carelessness and negligence on the part of the appellants in performing the operation. It was stated that respondent suffered mental and physical torture. It was alleged that respondent is not in a position to maintain 5th child, therefore, compensation of Rs.2,00,000/- be awarded.

(3.) LEARNED counsel for respondent submits that inspite of Tubectomy Operation, (which shall be referred hereinafter as TT Operation) respondent delivered an unwanted child. It is submitted that this happened because of utter carelessness and negligence on the part of State. It is also submitted that in the cases, in which death occurred during course of operation or immediately after the operation, the State is liable for payment of compensation. So far as failure of TT Operation is concerned, learned counsel placed reliance on a decision of this court in the matter of State of M.P. Vs. Asharam, Reported in 1997 ACJ 1224 wherein a man, who underwent family planning operation in a camp and his wife delivered a child after 15 months from the date of operation, claimed compensation alleging that operation filed due to negligence of the doctor, who performed operation in the course of his employment and State is vicariously liable for damages, this Court held that the word negligence is the omission to do something which a prudent and responsible man would do or doing something which such a man would not do. This Court further held that there was actionable negligence on the part of doctor who performed the operation in the course of his employment and Stale is vicariously liable for damages and awarded a sum of Rs.20,000/-.