BALWINDER KAUR Vs. STATE OF HARYANA

JUDGEMENT

(1.) This is the plaintiff's appeal against the judgment and decree of the first appellate court dated 21.11.2005 whereby the judgment and decree of the trial court dated 23.7.2005 was set aside.

(2.) Plaintiff filed a suit for recovery of Rs. 1,00,000 as damages as an indigent person under Order 33, Civil Procedure Code on the ground that she is a poor lady holding a yellow ration card and has no source of income. She is residing with her husband and four children at Shiv Colony, Ward No. 6, near Anganwari School, Ghatiwala, Pinjore, Tehsil Kalka, District Panchkula. Her husband is unemployed and is suffering from various ailments. She had four daughters, namely, Mamta, Manju, Sunanda and Asha and had no son. She decided to have no more issue as such she planned to go for sterilisation operation which was conducted by Dr. Vimal Shouri, Civil Hospital, Kalka on 29.2.1996 which was registered in the sterilisation register vide No. 1150 of 1995/96 and a certificate dated 29.2.96 was issued to her. It is further alleged that after the operation, she was assured by the doctor, respondent No. 2 that operation was successful and she will not conceive in future. However, in the year 1999, she again conceived and gave birth to a female child, namely, Rajni on 30.11.1999. It is also alleged that she had gone to defendant No. 2 to ask him as to why she had become pregnant and also requested him for abortion but was told by him that the abortion at that stage can prove dangerous to her life, therefore, she had no alternative than to give birth to the child. She further alleged that she had suffered mental and physical agony on having given birth to an unwanted female child, which has put an extra financial burden on her and the entire family. It was submitted that she has no movable or immovable property and she needs money for the upbringing, education, clothes, food and marriage of the female child who had taken birth due to failure and negligence of the tubectomy operation performed by the respondent No. 2 on account of which she had claimed compensation to the tune of Rs. 1,00,000.

(3.) On notice, defendants appeared and filed written statement in which preliminary objection was raised that the plaintiff cannot file the suit as she was estopped by her own act and conduct as she had voluntarily undergone the tubectomy operation. It was also alleged that there had always been a possibility of failure of tubectomy operation and this fact was brought to her notice before operating upon her. It was alleged that follow-up study on the subject shows that the failure rate of such like operation is 2.1 per cent and if the operation of the plaintiff had failed neither the doctor nor the State can be held liable for the same and the plaintiff had given birth to a child due to her own negligence. On merits, it was admitted by the defendants that the plaintiff was operated upon for tubectomy at Civil Hospital, Kalka by defendant No. 2, however, negligence on the part of defendant No. 2 while performing operation was denied. It was averred in the written statement that laproscopic tubectomy had been performed successfully yet the plaintiff was informed that there was possibility of failure of operation and in that case, she was advised to come to Civil Hospital, Kalka or visit any other nearby government institute for consultation as and when she failed to menstruate after one month but she did not comply with the instructions. It was denied that any assurance was given to the plaintiff that she will not conceive in future rather she signed the sterilisation operation form in which it was clearly written that she knew that laproscopic tubectomy operation may fail and for the failure, government institution/surgeon will not be responsible either to her or her relatives or any other person. It was denied that plaintiff had approached defendant No. 2 after she had conceived. Had she done so she could have been relieved of the unwanted child by adopting the safer method of MTP. It was also mentioned in the written statement that as per hospital record, the plaintiff had four male children and one female child at the time of operation and she was herself responsible for giving birth to a female child after the operation.