IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 306 of 2005 Judgment Reserved on 13.08.2009 Date of Decision:- _18.08.2009 __________________________________________________________ Smt. Anita ….Appellant. Versus Secretary Health & Others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. __________________________________________________________ For the Appellants: Shri Navlesh Sharma, Advocate. For the Respondent No.1 & 2: Ms. Ruma Kaushik, Addl. A.G. __________________________________________________________ Dev Darshan Sud, J. This appeal has been preferred by the plaintiff who had sued as an indigent person under Order 33 Rule 1 of the Code of Civil Procedure (hereinafter referred to as “the Code”) claming damages from the respondents on the ground that she was persuaded to undergo the operation for vasectomy on the firm assurance that she would not bear any more children after that. She had pleaded that she already had two children and her economic condition was not such as would permit her to look-after/bring up another child. The plaintiff-appellant claimed damages to the extent of Rs. 4,98,000/- which were quantified as under:- (i) For extra care/burden to rear up Child for five year @ 1200/- P.M. 72,000/- 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 (ii) Schooling expenses upto +2 level @ Rs. 1500/- per month 2,16,000/- (iii) For expenses on education upto graduation level @ Rs. 2000/- p.m. for 3 years. 72,000/- (iv) Expenses of 2 years professional training such as B.Ed., computers @ Rs. 2000/- per month 48,000/- (v) Marriage expenses 60,000/- (vi) Mental shock and pain 30,000/- Total 4,98,000/- She submitted that she had submitted herself for sterilization on the persuasion of the government officials who had categorically assured her that she would not conceive after the operation. The surgery was performed by DW2 Dr. S.R. Sharma, Surgical Specialist at Zonal Hospital, Solan on 22.11.1999. Subsequently, she was surprised to learn that she had become pregnant and gave birth to a female child on 29.10.2000. The learned trial Court settled five issues. Onus of the first issue namely as to whether the plaintiff-appellant was entitled to recover damages to the extent of 4,98,000/-, was on the plaintiff. Three other issues were settled on the pleadings namely, the maintainability of the suit, jurisdiction of Court to take cognizance of the suit and bar to trial under Section 80 of the Code. On issue No. 1, the Court considered the evidence of PW1 Secretary, Gram Panchayat where the plaintiff was residing. He has proved on record the Parivar Register and the birth of the child. PW2 is Shakuntla who proved that the plaintiff had two children and that she has considerably in difficulty in bringing up the third child. PW3 is Jagdish Sharma who is Up- Pardhan of the Panchayat also states about the family condition of the plaintiff. The plaintiff-appellant appeared as PW4 and stated that she underwent surgery of vasectomy on 22.11.1999 and had been told by DW2 that after the operation she 3 would not bear any children. She further states that she had been told that the operation/surgical procedure was successful. She further proved the factum of her husband living in difficult economic conditions and the fact that they are not in a position to bring up any more children. I am not going in detail as to the cross examination of these witnesses, since the basic points for consideration is as to whether there has been actionable negligence on the part of DW2 Dr. S.R.Sharma in performing the surgical operation. The other facts on record namely that the plaintiff-appellant had ungone surgery/vasectomy and that she had two children living at the time and her husband was not possessed of sufficient means to lookafter a large family are the facts which are undisputed. The learned trial Court hold that the plaintiff had signed a document of her own free will and volition Ext.D1 which states:- “I know that for all practical purpose this operation is permanent that I can not have any more children. I also know that there are some chances of failure of the operation for which government hospital/operating surgeon will not held responsible by me or my relative or any other person whatsoever.” On this, the Court holds that the plaintiff-appellant was aware about the fact that operation may not be successful. Unfortunately, there is no evidence on record to show that the surgical procedure conducted on the plaintiff- appellant is not in accordance with the expected medical skill required for performance of such surgery. There is also no evidence on record that the Doctor was remiss in performing the operation. On the undisputed facts, it is established that the appellant had undergone surgery for vasectomy and that she had conceived a female child after that. But these facts are by themselves not sufficient to establish negligence on the part of the Doctor. The evidence on record does not show that the Doctor did not adopt the normal medical skill required for performance of sterilization surgery. 4 This Court in Civil Suit No. 37 of 2003 titled Urmila Devi Vs. State of H.P. & others decided on 15th September, 2008 following the decision of the Supreme Court in State of Punjab Vs. Shiv Ram and others, (2005) 7 SCC 1 and Jacob Mathew vs. State of Punjab (2005) 6 SCC 1, has held that merely undergoing an operation of sterilization and conceiving thereafter does not become an actionable claim unless negligence is established. I need not discuss the principle in detail as the matter stands already concluded. In this view of the matter, I am not inclined to accept the plea of the appellant that there has been negligence on the part of Doctor DW2 Dr. S.R. Sharma in performing the sterilization operation. Without going into the matter any further, I consider it fit and proper to dispose of the appeal with a direction that the amount awarded by the District Judge is increased to Rs. 50,000/-. While making this order, I have kept in mind the fact that the plaintiff is an indigent person who is in Court since 2002. Not only the suit was instituted by her in such a capacity, but even this appeal was allowed to be instituted and prosecuted by her under Order 43 of the Code as an indigent person. Increasing this amount is not encouraging the principle of misplaced sympathies but is a measure to help the family to tide over the financial crisis. This appeal is accordingly disposed of. There shall be no order as to costs. August 18,2009 (Dev Darshan Sud) (ms) Judge