STATE OF M.P. Vs. SAMARWATI BAI

JUDGEMENT

(1.) This appeal under Sec. 96 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 1.10.1996 passed in the Civil Suit No. 7 A/1995.

(2.) Respondents-plaintiffs, wife and husband, filed a suit against the State of Madhya Pradesh and its functionaries including Appellant No. 4 engaged as Gynaecologist in the services of State of Madhya Pradesh for recovery of damages of Rs. five lacs on account of twins born to them in spite of respondent No. 1 having undergone tubectomy operation performed by appellant No. 4. According to them they already had four children, one daughter and three sons. In response to publicity by the State Government as to family planning the respondent No. 1 with consent of respondent No. 2 underwent the operation on 14.4.1984 certificate Ex. P/1, in this regard was issued by the Medical Officer. On 12.5.1991 she gave birth to twins. After serving notice under Sec. 80 Code of Civil Procedure, 1908 the suit for recovery of damages was filed on 17.9.1993 attributing the birth of children to carelessness and negligence of Medical Officer.

(3.) The defendant filed their written statement in which it was admitted that the Appellant No. 4 had conducted Tubectomy Operation of respondent No. 1 on 14.4.1984. It was denied that appellant No. 4 was negligent in performing operation. It was also stated that the appellant No. 4 is an experienced doctor and there had been no complaint of any sort in respect of her professional attainment. It was also stated that under Medical Termination of Pregnancy Act, 1972, the facility of termination of pregnancy is available free of cost, the respondent/plaintiff no. 1 should have availed the same in case of unwarranted pregnancy. The liability to pay compensation was denied. It was also stated that in the Standard Text Book it is stated that operation is not always successful.