IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21-07-2010
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
S.A.No.724 of 2010
Santhi .. Appellant.
Versus
1. The Joint Director and Chief
Medical Officer,
Government Headquarters Hospital,
Tiruvannamalai.
2.Dr.T.R.Govindarajulu .. Respondents.
PRAYER: Appeal against the judgment and decree made in A.S.No.93 of 2006, dated 12.2.2007, on the file of the Principal Subordinate Judge, Tiruvannamalai, reversing the judgment and decree, made in O.S.No.660 of 2004, dated 30.3.2005, on the file of the Additional District Munsif Court, Tiruvannamalai.
For Appellant : Mr.P.Jagadeesan
J U D G M E N T
This second appeal has been filed against the judgment and decree, dated 12.2.2007, made in A.S.No.93 of 2006, on the file of the Principal Subordinate Court, Tiruvannamalai, reversing the judgment and decree, dated 30.3.2005, made in O.S.No.660 of 2004, on the file of the Additional District Munsif Court, Tiruvannamalai.
2. The plaintiff in the suit, in O.S.No.660 of 2004, is the appellant in the present second appeal. The defendants in the said suit are the respondents herein.
3. The plaintiff had filed the suit, in O.S.No.660 of 2004, on the file of the Additional District Munsif Court, Tiruvannamalai, praying for a decree and judgment permitting the plaintiff to sue in forma pauperis and for directing the defendants in the suit to pay a sum of Rs.1,00,000/-, as compensation to the plaintiff, and for costs.
4. The plaintiff had stated that she was married to one Kannan and she had given birth to two children. Hence, she had been admitted into the Government Hospital, Tiruvannamalai, for a family planning operation (Tubectomy). On 31.3.1992, the second defendant had conducted Tubectomy (Family planning Operation) under the directions of the first defendant, at the Government Hospital, Tiruvannamalai.
5. The second defendant had also issued a certificate to that effect. However, to her utter dismay, the plaintiff had conceived and she had given birth to a male child, on 12.11.2001, at the Government Hospital, Polur. Since, the plaintiff is very poor and she does not have sufficient means to maintain her two children born before the Tubectomy operation, she had filed the suit claiming compensation for the birth of the third child, inspite of the Tubectomy operation having been performed on her.
6. In the written statements filed on behalf of the defendants it has been stated that the plaintiff had claimed that a third child had been born, even after the performance of a Tubectomy operation on her. The third child had been born, nearly 9 = years after the surgery had been performed. There cannot be a cent percent guarantee that there will not be any conception after the performance of the Tubectomy operation. In fact, the failure rate, as scientifically assessed, is 2% due to recannalisation of the fallopian tubes. It has also been stated that unless carelessness or negligence on the part of the defendants were specifically proved, no compensation can be awarded in favour of the plaintiff.
7. Based on the averments made on behalf of the plaintiff, as well as the defendants, the trial court had framed the following issues for its consideration:
1) Whether the plaintiff is entitled for the suit claim?
2) To what relief?
8. One witness had been examined on behalf of the plaintiff as P.W.1 and four documents had been marked as Exs.A-1 to A-4. One witness had been examined on behalf of the defendant and a document had been marked as Ex.B-1.
9. In view of the averments made on behalf of the plaintiff, as well as the defendants and in view of the evidence available on record the trial Court had come to the conclusion that there was nothing shown on behalf of the second defendant that he had performed the Tubectomy operation with due care and caution. The trial Court had also noted from the evidence adduced by D.W.1 that there were about 10 or 15 surgeries performed on the same day. In such circumstances, the trial Court had found that the birth of the third child to the plaintiff, inspite of the Tubectomy operation having been performed on her, would clearly show that there was negligence on the part of the second defendant and therefore, the plaintiff was entitled to the compensation as prayed for by her in the suit, in O.S.No.660 of 2004, from the defendants.
10. Aggrieved by the judgment and decree of the trial Court made in O.S.No.660 of 2004, the defendants in the suit had filed the first appeal on the file of the Principal Subordinate Court, Tiruvannamalai.
11. By its judgment and decree, dated 12.2.2007, the first Appellate Court, relying on the decisions of the Supreme Court, reported in State of Haryana and others V. Raj Rani (2005(4) MLJ 131) and State of Punjab V. Shiv Ram and others (2005(4) MLJ 132) had come to the conclusion that, in order to get compensation, in cases of failure of Tubectomy operation, the plaintiff had to prove the negligence on the part of the defendants. In the absence of such proof, the plaintiff would not be entitled to compensation. The First Appellate Court had also noted that P.W.1 had admitted in her evidence that the third child was born after 10 years from the date of the operation, which had taken place, on 31.3.1992.
12. The First Appellate Court had found that the failure of the operation was due to natural causes and therefore, negligence cannot be imputed on the Doctor, who had performed the operation. Further, it had been found that, even though the plaintiff had opportunity to terminate the pregnancy she had failed to do so. Therefore, the First Appellate Court had set aside the judgment and decree of the trial Court, by its judgment and decree, dated 12.2.2007, made in A.S.No.93 of 2006.
13. The plaintiff in the suit, who was the respondent in the first appeal, had filed the present second appeal before this Court, raising the following questions, as substantial questions of law:
1) When admittedly the defendants had performed Family Planning Operation to the plaintiff and inspite of the said operation the Plaintiff conceived a child, would not there be a strong presumption that the defendants are guilty of negligence and carelessness in performing the operation?
2) Is not the onus of proving that the operation was done with due care is on the defendants, in view of the decision reported in 2007(1) CTC P.496?
3) Whether the findings of the Lower Appellate Court that the defendants were not negligent is not based upon any material and the said findings are illegal amount to perverse in law?
14. The learned counsel appearing on behalf of the appellants had submitted that the First Appellate Court had erred in reversing the well considered judgment and decree of the trial Court, without properly considering the facts and circumstances of the case. The lower Appellate Court had failed to find, from the evidence available on record, that the second defendant in the suit, who was the second appellant in the first appeal, had performed the Tubectomy operation, negligently.
15. The lower Appellate Court ought to have held that the appellants in the first appeal, who are the respondents in the present second appeal, had not discharged the onus of proof by showing that there was no negligence on the part of the Doctor, who had performed the Tubectomy operation on the plaintiff, who is the appellant in the present second appeal. There is nothing shown on behalf of the respondents that due care and caution had been taken while performing the Tubectomy operation on the appellant.
16. When the appellants in the first appeal had failed to show that the procedures established for the performance of the operation had been followed without negligence, there would be a presumption of such negligence on the part of the Doctor, who had performed the operation. Since, a third child had been born to the plaintiff/appellant, inspite of the Tubectomy operation performed on her, there shall be a presumption of negligence on the part of the appellants in the first appeal. In such circumstances, the judgment and decree of the First Appellate Court, dated 12.2.2007, made in A.S.No.93 of 2006, is liable to be set aside and the judgment and decree of the trial Court, made in O.S.No.660 of 2004, is to be confirmed.
17. In view of the averments made on behalf of the appellant in the second appeal, and in view of the submissions made by the learned counsel appearing on behalf of the appellant and taking into consideration the evidence available on record, this Court finds that the appellant has not shown sufficient cause or reason to set aside the judgment and decree of the First Appellate Court, dated 12.2.2007, made in A.S.No.93 of 2006.
18. From the records available before this Court, it is clear that the appellant had not proved, by way of sufficient evidence, either before the trial Court or before the First Appellate Court, that the defendants in the suit, who were the appellants in the First Appeal, had not exercised due care and caution when the Tubectomy operation had been performed.
19. It is for the plaintiff/appellant to prove that the Tubectomy operation had been performed, negligently, and the onus of proof cannot be shifted on the defendants in the suit, who are the respondents in the second appeal, to prove that there was no negligence on their part in the performance of the operation. Further, there is no substantial question of law, arising for the consideration of this Court, in the present second appeal. In view of the decisions of the Supreme Court, reported in State of Haryana and others V. Raj Rani (2005(4) MLJ 131) and State of Punjab V. Shiv Ram and others (2005(4) MLJ 132), this Court finds no merits in the present second appeal. As such, the second appeal is devoid of merits. Hence, it is dismissed. No costs.
csh
To
1) The Principal Subordinate Judge, Tiruvannamalai
2) The Additional District Munsif Court,
Tiruvannamalai