STATE OF M.P. Vs. GOKULBAI

JUDGEMENT

(1.) The appellants have filed the present appeal under 96 of the C.P.C., challenging the judgment and decree dated 1.11.2001 passed by the First Additional District Judge, Shajapur in C.O.S. No.12-A/2001, thereby decreed the suit preferred by the respondent.

(2.) Brief facts of the case are that, the plaintiff/respondent was operated at Primary Health Centre, Gulana for Tubectomy (Nas-Bandi). This operation was performed by the Medical Officer i.e. appellant no.3 on 29.11.1994. The plaintiff/respondent after six years of the said operation became pregnant and therefore, she filed a civil suit for damages of Rs.4,53,100/-. It is alleged that, due to negligence of the doctor, she became pregnant after six years. The trial court after hearing both the parties and recording the evidence, has partly decreed the suit and awarded the damages of Rs.1,33,000/- with interest at the rate of 9% per annum. Being aggrieved by the said judgment the appellants have filed the present appeal.

(3.) Learned counsel for the appellants submits that, the court below has erred in presuming that the operation was performed negligently. He submits that there is no iota of evidence about negligence of the appellant no.3 in performing the alleged operation. He further submits that the operation of Tubectomy is preformed at sweet will of the party and not under any contract i.e. it is voluntary service to help the people. He further submits that as there is no privity of contract, therefore, the appellants are not liable to pay any damages. It was the duty of the plaintiff to report the pregnancy to the doctor in-charge of the Health Centre where she was operated so that he could have investigated the matter and could have found the cause of the failure of the operation. Neither the government nor the doctor concerned give any guarantee of the operation and on the contrary the patient is directed to follow the instructions given in the application form. He also submits that, out of thousand cases, operation may fail due to unknown factors of the human body. Thus, the judgment passed by the court below is illegal and deserves to be set aside.