PERMOD KOHLI,J. - (1.) THIS is plaintiff's Regular Second Appeal against the judgment and decree dated 19.11.2005 passed by the learned Additional District Judge, Kurukshetra, whereby the appeal preferred by the defendant-respondents has been accepted and the suit filed by the present plaintiff dismissed.
(2.) THE brief facts of the case are that the plaintiff got himself operated at L.N.J.P. Hospital, Kurukshetra, for family planning. The sterilisation (Vasectomy operation) was performed by defendant No. 3 on 20.12.1995 in the aforesaid hospital. After five years of the operation, the wife of the plaintiff become pRegulation nt and she gave birth to a male child. It is alleged that the plaintiff again approached the L.N.J.P. Hospital at Kurukshetra and got himself tested on 22.05.2000. On testing, 2 to 4 living sperms were found in the semen of the plaintiff. The plaintiff alleged that, at the time of his sterlisation in the year 1995, he was assured by the Operating Surgeon i.e respondent No. 3 that no child shall be conceived from his loins to his wife in future. It is further alleged in the plaint that it is due to the negligence of the doctor that his wife conceived and an unwanted child has been born. The plaintiff, accordingly, served a notice under Section 80 of the Code of Civil Procedure demanding damages and later filed the present suit for recovery of Rs. 500,000/- as damages with interest. The suit was filed as an indigent person. 2. On being put to notice, the defendants filed their written statement. Besides denying the allegations of negligence on the part of the operating doctor, the defendants also pleaded that there are chances of failure of the operation even if performed by the best of the doctors. The parties led their respective evidence. On the basis of the evidence, the trial Court decreed the suit of the plaintiff for an amount of Rs. 100,000/- vide its judgment and decree dated 29.08.2005. The defendant-respondent herein, filed an appeal in the Court of learned Additional District Judge, Kurukshetra, which has been allowed vide the impugned judgment and decree dated 19.11.2005 and suit of the plaintiff-appellant herein, dismissed. The learned Lower Appellate Court reversed the decree on the ground that the plaintiff was required to prove negligence on the part of the operating doctor and since negligence has not been established, the suit is liable to be dismissed. The learned Lower Appellate Court also observed that under the Medical Jurisprudence there is possibility of the failure of the sterlisation operation due to natural causes which vary between 0.3% to 7% depending upon the techniques or method chosen while performing the surgery and it is for the plaintiff to establish the negligence of the operating doctor.
(3.) I have heard the learned counsel for the parties at length. Similar issue came up for consideration before the Hon'ble Apex Court in the case of State of Punjab v. Shiv Ram and others, 2005(4) RCR(Criminal) 91 : 2005(4) RCR(Civil) 100 : 2005(3) Apex Criminal 268., wherein the following observations have been made :- "We are, therefore, clearly of the opinion that merely because a woman having undergone a sterlization operation became pRegulation nt and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pRegulation ncy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam's test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100% exclusion or pRegulation ncy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee.";