Rakesh Kumar Jain, J. - (1.) THE defendants are in appeal against the judgment and decree of the 1st Appellate Court by which suit filed by the plaintiff for recovery of damages of Rs. 2 lacs has been allowed. The question of law raised by learned counsel for the appellant is "whether the plaintiff is entitled to damages on the failure of tubectomy operation, if there is no evidence available on record proving the negligence of the Doctor -
(2.) THE plaintiff's case is that she had undergone a tubectomy operation on 17.12.1990 at Red Cross Bhawan, GT, Road, Panipat. She was motivated for it by Naresh A.N.M. but the operation remained unsuccessful and the plaintiff delivered a baby. She suffered mental shock and financial loss because she belongs to weaker section of Society and earns her livelihood by doing manual labour. It is alleged that the plaintiff contacted defendant No. 6 (Doctor) when she felt that she is pregnant but the Doctor told her that it is a side effect of the operation. She again got her tested and found seven and a half months pregnancy but at that time she had no alternative but to deliver the child. The plaintiff filed a complaint in the Consumer Dispute Redressal Forum which was dismissed for want of jurisdiction. She thus filed the present suit for damages of Rs. 2 lacs. Defendants No. 1 to 3 filed the written statement alleging that it was made clear to the plaintiff before operation that despite reasonable care in performance of the operation, the pregnancy might occur. The plaintiff had also undertaken not to hold the defendant liable. She was paid incentive of Rs. 130/ - under Family Welfare Scheme and Rs. 10/ - was paid to the motivator. The operation was conducted at FPA 1 surgical centre, Panipat. It is alleged that the plaintiff never came for medical check -up and deliberately continued with the pregnancy.
(3.) ON the pleadings of the parties, following issues were framed: - "1. Whether Nalbandi operation of the plaintiff was unsuccessful due to negligence of the doctor who conducted the operation? OPP 2. If issue No. 1 is proved whether the plaintiff is entitled to recover damages to the tune of Rs. 2 lacs, as alleged? OPP 3. Whether the plaintiff has got no cause of action to file the present suit? OPD 4. Whether the plaintiff is stopped from filing the present suit by her act and conduct? OPD;