SHIV KALI BAI Vs. SUNANDA CHOUDHARY

JUDGEMENT

(1.) THIS first appeal under section 96 of the code of Civil Procedure has been preferred by unsuccessful plaintiff against the judgment passed by district Judge, Seoni in C. S. No. 9-A of 1998 on 14. 12. 2000, whereby her claim for damages to the tune of Rs. 5,00,000 on account of failure of sterilisation operation was dismissed.

(2.) FACTS, not in dispute, are mentioned hereinbelow: the appellant had undergone sterilisation operation at Khwasa Camp, Seoni on 17. 11. 1994. The said operation was performed by Dr. Sunanda Choudhary, the respondent No. 1, who was then serving as specialist in Obstetrics and Gynaecology in Civil Hospital at Seoni. She was under the control and supervision of respondent nos. 2 to 4.

(3.) ACCORDING to the appellant, she belongs to poor strata of society and was already having four children. Since her husband was drawing a meagre salary by doing labour work, both of them thought it fit that appellant should undergo sterilisation operation so as to restrict their family to the number which already existed. The precautions which were disclosed to her by respondent No. 1 at the time of operation were fully and strictly adhered to. Even after the sterilisation operation, when her menstrual cycle stopped, she went to a private doctor, who after examination raised a doubt that she had become pregnant. She, therefore, came to Seoni to meet respondent No. 1 to ascertain if this was true. Initially, respondent No. 1 did not examine her on the ground that she was extremely busy on the said day. She thereafter went to meet her again after a month. She was examined by respondent No. 1 and it was confirmed that she had become pregnant. No operation for termination of pregnancy could be performed on her at that time, as her pregnancy had reached at an advanced stage and any such operation could have proved fatal to her. Under these facts and circumstances she had no choice, but to wait for her delivery and ultimately, she gave birth to a female child. She was already under considerable monetary burden and it was difficult for her to bring her up and to provide her with the basic and necessary amenities that a normal child should be given. On these pleadings, asserting that obviously the operation had been unsuccessful, she filed the suit for damages against the respondents claiming a sum of Rs. 5,00,000 together with interest at the rate of 8 per cent per annum on the same.