IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.73 of 2010 (O&M) Date of Decision: 15.1.2010 Kanto. ....... Appellant. Versus Primary Health Centre, Shahkot and others. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri S.P.Soi, Advocate for the appellant. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against the judgment and decree dated 17.7.2009 passed by the Additional District Judge, Jalandhar (hereinafter referred to as `the first appellate Court') vide which the judgment and decree dated 21.8.2006 of the Civil Judge (Junior Division), Nakodar (described hereinafter as `the trial Court') were set aside. Since it is barred by limitation, C.M.No.303-C of 2010 has been moved for condonation of 106 days' delay in its filing. The plaintiff-appellant filed a suit against the defendants- respondents for recovery of damages to the tune of Rs.2,00,000/- on the ground that she had got herself operated for tubectomy on 22.8.1995,but despite this operation, she conceived a child. It was pleaded that the doctors of the respondents were negligent in performing the operation and, R.S.A.No.73 of 2010 (O&M) -2- .... therefore, they be directed to pay the damages as claimed. Upon notice, the respondents appeared and filed written statement pleading that there was no negligence on the part of their doctors. It was averred that before operation, a consent memorandum was obtained from the appellant, the contents of which were explained to her in which it was written that there were chances of the operation not being successful and that in such an eventuality, the doctors will not be liable. It was further averred that according to bed-head ticket, all these things were explained to the appellant and her motivator and both of them had signed the same. The respondents denied their liability to pay any damages. The parties went to trial on the following issues:- 1. Whether plaintiff is entitled for the recovery of Rs.2,00,000/- as damages?OPP 2. Whether suit is not maintainable?OPD 3. Whether notice u/s 80 CPC is legal or valid?OPD 4. Relief. After appraisal of the entire evidence on record, the trial Court partly decreed the suit of the appellant with costs and awarded a sum of Rs.30,000/- as damages to her. Feeling aggrieved, the respondents filed an appeal which was accepted by the first appellate Court. It was concluded by the said Court that the negligence of the doctors was not proved and consequently, the respondent could not be burdened with any damages. Hence, this appeal by the appellant. R.S.A.No.73 of 2010 (O&M) -3- .... Learned counsel for the appellant, while assailing the findings of the first appellate Court, contended that a certificate had been issued to the appellant regarding the operation and in view of the same, the factum of operation could not be denied by the respondents, but since after operation also, she had conceived, that ipso facto pointed to the negligence of the doctors of the respondents and they were liable to pay damages to her for the lapse as she is now burdened with an unwanted child. I have considered the contention of the learned counsel for the appellant and have gone through the impugned judgment. In my opinion, the respondents cannot be burdened with any liability in the absence of any proof of negligence on behalf of the doctors, who performed the operation upon the appellant. Exhibit D1 is the consent memorandum in which it has specifically been noted that there was possibility of operation not being successful and that the doctors cannot be held liable for the same. Exhibit D2 is the bed-head ticket in which it was written that pelvic adhesion left tube could not be ligated due to tubo ovarian mass on the back side of both the tubes. This document also shows that all things were explained to the appellant and the motivator and she had thumb marked the same. In any eventuality, there is cogent evidence in the shape of testimony of DW1-Dr.Prem Nath and DW2-Dr.B.C.Paul, who have testified that all these facts contained in the consent memorandum and the bed-head ticket were explained to the appellant and the motivator. They have further R.S.A.No.73 of 2010 (O&M) -4- .... deposed that it was specifically explained to the appellant as well as the motivator that pelvic adhesion left tube could not be legated due to tubo ovarian mass on the back side of the both the tubes. The aforesaid witnesses also stated that 2 or 3% cases are such in which right or left tube of the person operated upon could not be ligated because of pelvic adhesion. On the basis of this evidence, which has gone unrebutted, it cannot be conclusively held that the respondents were guilty of negligence in performing the operation which resulted in unwanted pregnancy of the appellate. Moreover, it has been noticed by the first appellate Court that no sterilization certificate was issued in the instant case evidencing that the operation was successful. There is, thus, no infirmity in the findings recorded by the first appellate Court and no question of law, much less a substantial question of law, arises for determination by this Court. Besides this, the appeal has been filed after a delay of 106 days which has not been satisfactorily explained. Resultantly, I do not find any ground to interfere in the Regular Second Appeal which is dismissed on merits, as also on the point of limitation. All pending civil miscellaneous applications are also disposed of in view of the above. January 15,2010 ( Mahesh Grover ) “SCM” Judge