1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 399 OF 2008 1. Nirmala W/o Shivajirao Bhosale, Age : 38 Years, Occu. : Agril. & H. H., R/o Matola, Tq. Ausa, Dist. Latur. 2. Shivajirao S/o Khanderao Bhoasale, Age : 33 Years, Occu. : Agril. & H. H., R/o Matola, Tq. Ausa, Dist. Latur. .. APPELLANTS (Orig. Plaintiffs) Versus 1. The State of Maharashtra, Through the Collector, Osmanabad, Dist. Osmanabad. 2. Dr. L. R. Galande, Age : 41 Years, Occu. : Medical Officer, R/o Soygaon, Tq. Soygaon, District Aurangabad. .. RESPONDENTS (Orig. Defendants) Shri S. S. Manale, Advocate for the Appellant. Shri B. V. Wagh, A.G.P. for the Respondent No. 1. The Respondent No. 2 served through paper publication - absent. CORAM : N. D. DESHPANDE, J. DATE : 10TH NOVEMBER, 2009. ORAL JUDGMENT : 2 1. Heard Shri S. S. Manale, the learned counsel for the appellants and Shri B. V. Wagh, the learned Assistant Government Pleader for the respondent No. 1. The record and proceeding is available for perusal. Present appeal is directed against the judgment and decree of the First Appellate Court i. e. District Judge Osmanabad decided on 24.08.2006 in Regular Civil Appeal No. 272/2000 on limited issue for rejection of claim of Rs. 65,000/-. The plaintiffs couple have filed this suit for damages of Rs. 1,00,000/- in the Trial Court against the respondents on account of failure of laparoscopic operation of the appellant No. 1 Nirmala. The Trial Court out right dismissed the plaintiffs claim, therefore they preferred first appeal which was finally heard and decided by the First Appellate Court. The plaintiffs claim was partly allowed for Rs. 35,000/-, however the rest of the claim of Rs. 65,000/- was not considered. In this appeal the damages of Rs. 65,000/- are claimed. 2. During the course of hearing at the stage of admission it is admitted that, the respondent has paid Rs. 35,000/- and interest as per the decree passed by the First Appellate Court. However, there is no cross appeal or separate appeal by the State, though observations and findings recorded by the First Appellate Court has not been admitted or conceded by the respondents. 3. The main thrust of the argument of the learned counsel for the appellant is that, the plaintiff No. 1 became mother of third child which couple never wanted, but only because of failure of laparoscopic operation which was performed by the respondent No. 2, who was the then Medical Officer at Civil Hospital, Osmanabad 3 while implementing programme of family planning by a method of laparoscopic operation. It was sponsored by Panchayat Samittee and Municipal Council, Osmanabad. Appellant No. 1 at her own with the consent of her husband got operated for she did not want third child. The appellant was also issued certificate of family planning operation by laparoscopic method and it was assured that operation would be successful. 4. The operation was performed on 23rd March, 1984. In the month of December 1984 i. e. after laparoscopic operation was done, the appellant No. 1 suspected about the third pregnancy and, therefore, approached to the defendant No. 2 and on advise, it was terminated. Then the defendant/respondent No. 2 advised for application of copper T, which was accepted by the appellant No. 1. Few months thereafter she suffered severe bleeding because of copper T, so it was removed. Naturally, as there was no other devise and care taken by the appellant No. 1 for family planning she again conceived and gave birth to a baby girl on 20.11.1985 a third child in the family, which the appellant couple never wanted. 5. The present suit came to be filed on 14th June, 1988. Thus it is seen that, the suit was filed after more than three years of laparoscopic operation, which failed and appellant No. 1 conceived thereafter in December 1984 after laparoscopic operation was performed in March 1984. The cause of action is based on the negligence of the respondent, resulting in the failure of laparoscopic operation in March 1984 which came to notice in December 1984, when the unwanted pregnancy was terminated. Thus the claim of 4 damages is apparently not within three years. However, it appears that, same issue was not raised or contested for recording finding before both the Courts below. However, the limitation is the issue which can be decided either before the Trial Court or Appellate Court. 6. On merits it is seen that, once failure of the laparoscopic operation will not give repeated cause of action to the appellant No. 1 for each subsequent pregnancy on account of failure of other applications or methods of family planning like copper T or otherwise. It is seen that, copper T did not suit the appellant No. 1 and because of sever bleedings, she was asked for removal of it, then the couple has not taken any other precaution. Thus it is found on record that, the third child baby girl was born to the couple is not the result of the conception immediately after the failure of the operation and was not a "thunder bolt" because earlier to that pregnancy after leprosopic operation was terminated. Though it was a shock to the couple and nervousness and that they are now always under a fear of more children in future. Thus it is seen that, some facts and circumstances proved on record do not support the plaintiffs claim that, said third child baby girl born was unwanted and it was the result of unwanted pregnancy and was mainly on account of failure of laparoscopy in question. The damages i. e. claim detailed out the expenses to maintain the third child, therefore, does not survive or cannot be basis for such cause of action which is separate and distinct. 7. The learned counsel for the appellants relied on the authority 5 reported in AIR 2000 Supreme Court 1888 in the case of State of Haryana and others v. Smt. Santra. The facts of that case are quite different from the facts of present case. In the case cited supra, the couple had seven issues. The condition of couple was poor and because of the failure of operation the so called unwanted child was born to the couple and was additional liability or burden on the family, which is the direct result of failure of the operation. As such, the claim of the appellants does not survive. 8. The impugned judgment and decree, despite the above narrated facts and considered the same, because some negligence was found and respondent No. 2 accepted that there was some kind of sub-standard material might have been used and there was chances of failure of laparoscopy, and therefore, compensation of Rs. 35,000/-, as there was no appeal against the said judgment and decree passed. Therefore, the claim allowed by the First Appellate Court cannot be interfered, it sustained. However, no substance is found in the appeal. There is no any substantial question of law raised is found to be considered in the appeal. Therefore, the appeal deserves to be summarily dismissed at the admission stage. The appeal is dismissed. There is no order as to costs. [ N. D. DESHPANDE, J.] bsb/Nov. 09