STATE OF HARYANA Vs. BABLI

JUDGEMENT

(1.) THE defendants are in appeal against the judgment and decree of the Appellant Court by which suit filed by the plaintiff for damages has been decreed to the extent of Rs. 1,50,000/ - on account of failure of tubectomy operation. The plaintiff filed suit for recovery of Rs. 5 lacs as damages against the defendants alleging that she had undergone a tubectomy operation at CHC Jhajjar on 27.4.2004 under the National Family Planning Programme. The operation was performed by defendant No. 3 under the supervision of defendant No. 2 without following the medical norms as she was already having two months pregnancy of that time. She contacted defendant No. 3 on 29.6.2004 at CHC Jhajjar and made a complaint regarding increasing size of her belly but she was told that it was due to operation. She again went to defendant No. 3 and at that time defendant No. 3 came to know that plaintiff was pregnant. She was told that her pregnancy can be terminated by way of operation but she did not agree because it was not safe at that stage. Ultimately, she got treatment from a private Doctor and gave birth to a male child on 16.11.2004. The plaintiff has alleged that she is a poor household lady, already having five children and with the birth of unwanted sixth children she had suffered financial loss and mental agony and thus claimed damages of Rs. 5 lacs.

(2.) IN the separate written statements filed by defendant No. 1 & 2 and 3 respectively, it was admitted that plaintiff had tubectomy operation on 27.4.2004 performed by defendant No. 3 but before the operation she lied that her last menstruation period (LMP) was on 24.4.2004. She disclosed about the pregnancy on 29.6.2004 whereas as per MTP Act, 1973, a 20 weeks' pregnancy could be easily removed free of cost but plaintiff and her husband did not agree for it because they might have come to know that focus was of a male child. It was thus alleged that the child was not unwanted and plaintiff had given birth deliberately.

(3.) LEARNED counsel for the appellants has submitted that the defendants/appellants would be liable to pay damages to the plaintiff only if it is established, by leading evidence, that there is a medical negligence on the part of the defendants while performing sterilization operation. Merely because the plaintiff delivered a child, the operating surgeon cannot be held liable for compensation. He has thus raised a substantial question of law "as to whether the surgeon, performing tubectomy operation, would be liable to pay compensation if medical negligence is not proved by leading cogent evidence -