State Of Madhya Pradesh vs Smt. Tasavvar Bee

The first appeal under Section 96 of the Civil Procedure Code is at the instance of defendants challenging the judgment of the learned trial Court dated 6/09/2000, passed by IInd Additional District Judge, Barwani, whereby, Civil Suit No.8B/99 filed by the respondent has been decreed.

The respondent/plaintiff was operated at Primary health Centre, Silawad for Nas-Bandi(Tubectomy). The operation was performed by the Medical Officer(appellant No.4) on 8/02/1984. The plaintiff respondent after two years became pregnant and, therefore, filed the suit for damages of Rs.1,50,000/-. The plaintiff despite all the instructions, did not contact the Medical Officer concerned even after pregnancy. It is alleged that she delivered the child after two years. Because of negligence of the doctor, she became pregnant after two years and as such the respondent claimed compensation for the negligence of the appellant(s).

The second Additional District Judge, after recording the evidence decreed the suit and ordered to pay the compensation to the tune of Rs.55,000/- alongwith interest @ 12% per annum. Being aggrieved by the judgment passed by the Additional District Judge, Barwani, the appellant has preferred this appeal.

Learned Govt. Advocate for the appellant/State has submitted that the impugned judgment and decree passed by the learned Lower Court is ex-facie illegal, improper and contrary to the facts on record. It is submitted that the learned Judge erred in presuming that the operation was performed negligently. There is no iota of evidence about negligence of appellant No.4 in performing the alleged operation. He submits that the Nasbandi operations are performed at the sweet will of the party and not under any contract i.e., it is voluntary service to the help the people and there is no privity of contract and, therefore, appellants are not liable to pay any damages. He further submits that it is the duty of of the plaintiff to report the pregnancy to the doctor incharge of the Health Centre, where she was operated so that she could have investigated the matter. It is already established fact that out of 1000 cases of operation, in some of the cases, the operation may fail due to unknown factors of the human body. The learned Judge should have drawn adverse inference against the plaintiff when she did not report her pregnancy which caused after two years. The learned judge erred in decreeing the plaintiff's suit for Rs.55,000/- alongwith interest. There is no evidence of damages and merely on conjunctures, court decreed the suit for Rs.55,000/-. He further submitted that if the plaintiff was not interested in child after Nasbandi operation then she could have contacted the Health Centre, but she was interested in getting the child and, therefore, she did not contact the doctor concerned nor reported at the Health Centre. Therefore in such circumstances, question of awarding damages does not arise at all.

Learned Government Advocate for the appellants/State has further argued that the learned Court below has not thrashed out the matter in its entirety, and appreciation of evidence by the learned Court below is also not proper, and, therefore, the impugned judgment is liable to be reversed and set aside.

The trial Court, after appreciating the evidence led by the parties, had decreed the suit on reaching to the conclusion that the respondent was operated on 8/02/1994 by the appellant No.4 - Smt. Usha Shirhatti in the Primary Health Centre, Silawad for Nasbandi(Tubectomy). The plaintiff after two years became pregnant after two years. The trial Court further found the respondent entitled for compensation of Rs.55,000/- and has, accordingly, decreed the suit.

On the other hand, learned counsel for the respondent/plaintiff supports the judgment passed by the trial Court and submits that the compensation awarded by the trial Court is just and proper and no case for any interference is warranted.

I have heard the learned counsel for the parties and perused the impugned judgment.

A glance at the impugned judgment makes it crystal clear that the learned trial Court has evaluated the evidence and other materials on record and, thereafter, has examined the matter in all fairness while recording a definite finding that the action of the appellants were bonafide, but at the same time the learned Court below has thought it proper to award reasonable damages for the loss suffered by the respondent. In totality, the learned trial Court has awarded a meager sum of damages to the tune of Rs.55,000/- only. This Court is quite conscious about this fact that this appeal is under Section 96 CPC and adhering to the normal practice, the record is to be summoned and a notice is required to be given to the learned trial Court.

In the considered opinion of this Court, the learned Court below has examined the matter threadbare and after discussing the evidence and other materials on record has found that respondent-plaintiff is entitled for damages and the said decision in the backdrop of the facts and circumstances of the case cannot be faulted. The finding of fact recorded by the learned Court below is based on appreciation of evidence in right perspective and the same is neither perverse, nor infirm from any stretch of imagination. On examining the matter in its entirety, this Court is satisfied that from the normal convention some deviation is desirable as there is absolutely no merit in this appeal. The aforesaid analysis clearly reveals that the claim of the respondents/plaintiffs for award of compensation has duly been established and the trial Court has rightly assessed the compensation of Rs.55,000/-. Hence, no case for any interference in this appeal is made out.

In the light of the above discussion, I find no merit in this appeal and the same is, accordingly, dismissed.