IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.M. No. 10641-C of 2008 and
RSA No. 3581 of 2008
Date of decision: 30.1.2009
Avtar Kaur ... Appellant.
Versus
Union of India and others ... Respondents
Present: Mr. Padam Jain, Advocate,
for the appellant.
...
ARVIND KUMAR, J:
C.M. No. 10641-C of 2008:
For the reasons mentioned in the application, the prayer
made therein is allowed. Applicant-appellant is permitted to file the present
appeal as an indigent person. CM stands disposed of accordingly.
RSA No. 3581 of 2008:
Appellant before this Court was the plaintiff who has
been non-suited by the Courts below in a suit for recovery of Rs.10 lakhs as
damages, expenses etc.
The case of the plaintiff as set out in the plaint, was that
on 18.9.1995, she had undergone Tubectomy operation at Lala Lajpat Rai
Hospital, Railway Coach Factory, Kapurthala, so performed by Dr. Raj
Kumar who assured that it is fool-proof method and is fully successful.
However, she became pregnant thereafter and therefore, it was alleged that
the operation had been conducted with negligence and carelessness. The
present suit has been filed claiming compensation/damages against the
doctor and the Union of India etc. The stand of the defendants is that she
was never assured that the operation is fool-proof method or is 100 per cent
successful but the assurance was given that the operation will be done with
all reasonable care and caution. It was conveyed that such like operations
are not always fool-proof and the consent of plaintiff’s husband was also
taken.
Dr.Raj Kumar who had conducted the operation is
RSA No. 3581 of 2008 -2-
MBBS and MS in general surgery. Both the Courts below upon
appreciation of evidence adduced by the parties, have concurrently found
that the plaintiff has failed to prove negligence on the part of the doctors in
performing the operation. The sheet-anchor of the case is consent form,
Exhibit D-2, which pertains to the plaintiff. This consent form bears the
signatures of Gurdip Singh, the husband of the plaintiff. The said form
has been proved by DW-2, Harminder Kaur, Nursing Sister, who filled it
and it was also proved by Dr. Raj Kumar who had also signed it. The
Courts below have concurrently found that there is stipulation in this form
that there are some chances of failure of the operation. Plaintiff has not
examined her husband to deny his signatures on the consent form, Exhibit
D-2, nor any expert has been examined to show that the signatures of her
husband on the said form were forged by the defendants. This led the
Courts below to hold that the plaintiff had already been apprised prior to the
operation that it is not fool-proof method. The judgment of the Hon’ble
Supreme Court in State of Haryana v. Smt. Santra, 2000(2) RCR(Civil)
739(SC), is of no help to the appellant as the facts therein were altogether
different. A 3-Judge Bench of the Hon’ble Supreme Court in State of
Punjab v. Shiv Ram and others, 2005(4) RCR (Civil)100, has observed as
follows:-
” 21. We are, therefore, clearly of the opinion that
merely because a woman having undergone a
sterilization operation became pregnant and
delivered a child, the operating surgeon or his
employer cannot be held liable for compensation on
account of unwanted pregnancy 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 of pregnancy after the surgery and was
only on the basis of such assurance that the plaintiff
was persuaded to undergo surgery. As noted in
RSA No. 3581 of 2008 -3-
various decisions which we have referred to
hereinabove, ordinarily a surgeon does not offer
such guarantee.”
The judgment in Shiv Ram’s case(supra) has also been followed by the
Hon’ble Supreme Court in another judgment in State of Haryana and
others v. Raj Rani, 2005(4) RCR(Civil) 169. Nothing has been shown that
the findings of fact so recorded by the Courts below suffer from any
infirmity or are contrary to the record. No question of law, muchless
substantial, arises in the present appeal.
Consequently, the appeal being without any merit is
hereby dismissed.
January 30, 2009 ( ARVIND KUMAR) JS JUDGE