RSA No.4292 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4292 of 2008 Date of Decision:06.01.2009 State of Haryana & ors. ....appellants Versus Sudesh .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.K.S.Godara, DAG Haryana **** RAKESH KUMAR GARG J. This is defendants' Regular Second Appeal challenging the judgment and decree of the Lower Appellate Court whereby the appeal filed by the plaintiff-respondent has been accepted and suit of the plaintiff- respondent has been decreed with costs and it has been held that the respondent is entitled for damages of Rs.1 lac from the defendants- appellants. Briefly stated, the case of the plaintiff-respondent is that she was married with one Ranbir Singh. After begetting third child, she got done tubectomy operation by the doctors of General Hospital, Rohtak on 25.02.1992. A certificate was also issued bearing serial No.2801 dated 25.02.1992, in this regard. On feeling severe abdominal pain and no menstruation, she got herself medically examined by the doctors of General Hospital, Rohtak on 02.11.2000 and it was found that due to defective operation, the plaintiff has become pregnant. Thus, the plaintiff had conceived a child in spite of the fact that she undertook a major family planning operation. She gave birth to a female child namely Jyoti, on RSA No.4292 of 2008 2 17.11.2000. It is further the case of the plaintiff-respondent that the newly born child is the outcome of the negligence of the doctors of General Hospital, Rohtak. She has claimed damages to the tune of Rs.4,29,000/- for economic and financial loss for this unwanted female child. The suit of the plaintiff-respondent was contested by the defendants-appellants by filing written statement to the effect that the plaintiff did not have any pregnancy for about 8 years, which shows that the operation was effective and successful and there was no negligence on the part of the doctors. The plaintiff might have conceived after 8 years of tubectomy operation due to spontaneous recanalization of the ligated tube. It was also stated that the plaintiff had not cared to report to the hospital of becoming aware of pregnancy at the early stage when she could have been offered medical termination of pregnancy. It was further stated in the written statement that after tubectomy operation, every patient is specifically advised to report to the hospital about missing of periods at any stage but the plaintiff did not do so, therefore, the sufferings and hardship, if any, to the plaintiff is her own creations. Other averments of the plaintiff were denied and dismissal of the suit was prayed for. After considering the evidence on record and hearing the parties, the trial Court dismissed the suit filed by the plaintiff-respondent. However, appeal filed by the plaintiff-respondent was accepted by the Additional District Judge, Rohtak, vide impugned judgment and decree dated 25.09.2008. Feeling aggrieved against the aforesaid judgment and decree of the Lower Appellate Court, the defendants have filed the instant appeal. I have heard learned counsel for the appellants. I find no merit in this appeal. Admittedly, appellant had undergone tubectomy operation on 25.02.1992 and that operation was performed by respondent RSA No.4292 of 2008 3 No.4. It is further admitted case of the parties that after about a gap of 8 years of tubectomy operation, plaintiff gave birth to a female child namely Jyoti on 17.11.2000. The plaintiff has specifically pleaded and proved that her conception was due to failure of tubectomy/sterilization operation. Though the appellants in their written statement have stated that there was no negligence on the part of the doctor who performed the operation, but no evidence was led in this regard. Respondent No.4 who performed the operation even did not choose to file separate written statement denying his liability or negligence in conducting the operation. Respondent No.4 was the best person to comment on the failure or success of the operation. However, he did not appear as a witness. The only witness examined by the respondents to prove the fact that there was no negligence in performing the operation is DW1 Suresh Chand, who is working as Clerk in the Office of Civil Surgeon, Rohtak. DW1 Suresh Chand has specifically stated that he had no knowledge about the medical science and further he has no knowledge about the operation performed on the appellant. Though, in the written statement, it is the specific case of respondents that a woman can conceive even after sterilization operation due to spontaneous recanalization of ligated tube, but there was no expert witness produced by the respondents, in this regard. DW1 Suresh Chand was not in a position to say anything in this regard. Thus, the respondents have miserably failed to prove that there was no negligence in performing the operation. Thus, no fault can be found with the findings of the Lower Appellate Court, which are essentially findings of fact. No substantial question of law arises in this appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 06.01.2009 neenu