IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RFA No. 128 of 2001. Date of decision 3.3.2008. State of Himachal Pradesh ….Appellant. Versus Smt. Sunita Kumari …..Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting? No. For the appellant Ms. Ruma Kaushik, Addl. AG. For the respondent Mr. Anup Chitkara, Advocate, with Mr. Bhupinder Ahuja, Advocate. Dev Darshan Sud, J. (Oral). This appeal has been preferred by the State of Himachal Pradesh against the judgment and decree of the learned District Judge awarding a sum of Rs.80,000/- as compensation to the plaintiff. Brief facts necessary for adjudication of this appeal are that the plaintiff Smt. Sunita Kumari Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - instituted the present suit on the ground that she is an indigent person, unable to pay Court fee for instituting the present action. Permission to sue in forma paupris was granted to her by the learned trial Court on 28.10.1987. Plaintiff had pleaded that she had undergone sterilization operation at Jungal Berry on the assurance of the respondent that after sterilization, she would not bear any children. She had submitted to this on the assurance of the defendant that as she had already two sons and it was not possible for her to bear and bring up another child. Under a bonafide belief, on the assurance of the respondent that she would not suffer any more pregnancy(s), she underwent sterilization but delivered a female child on 25.7.1997. The plaintiff pleaded that in view of the fact that she and her husband belonged to the low economic strata of society and were unable to meet the expenditure of the female child, they had suffered a mental shock as they were unable to bear the expenses of bringing up, educating and marrying their daughter. - 3 - The State resisted the suit filed by the plaintiff admitting that on 16.1.1995, a laparoscopic sterilization operation was conducted by Dr. K.C.Kaushal at Sterilisation Camp, Jungle Berri after the plaintiff had voluntarily consented for such an operation. The application form is Ex. DA. This consent, according to the State was in the prescribed form. It was pleaded that the terms and conditions as contained in the form were explained to the plaintiff in Hindi as also the local dialect and she had signed it after admitting the contents as printed in Ex. DA. One of the conditions prescribed in the form was that it was clearly understood by the plaintiff that there are some chances of the failure of the operation for which the surgeon will not be responsible. It was urged that in case the plaintiff did not want the third child, she could have terminated the pregnancy by having resort to the facilities available at Government hospital(s)/ Health Centre(s). The plaintiff appeared as PW-1 and has proved on record Ex.PA which is the certificate issued to her husband after the operation was - 4 - completed authorizing leave to him. She further states on affirmation that a female child was born to her after 2 ½ years of the sterilization operation. At the time when she underwent surgery, she states that she was under the influence of anesthesia and cannot testify as to whether the degree of care required for performing sterilization operation was adopted by the defendant. According to her, both her husband and she being daily paid labourer(s), they cannot look after the female child properly. She admits her signatures on Ex.DA which is the consent form, but denies that she was explained the conditions as printed therein. She further states that she was suffering pain in the stitches on the incision. PW-2 Madho Ram, affirms that the plaintiff – respondent underwent the operation as she did not want to bear any children in view of her economic condition. Dr. K.K.Kaushal, the operating surgeon, has appeared as DW-1 and states on oath that the plaintiff was fully aware about the conditions set out in Ex.DA which was signed by her after the conditions were explained to her and she understood them. She was explained that there was a chance of - 5 - failure of the operation. He states that even when laparoscopic surgery is conducted with care and caution, there are chances of failure. DW-2 is the Female Health Worker, who affirmed that she had motivated the plaintiff for undergoing the operation and explained to the plaintiff regarding the chances of failure of the operation. Ex.DAA is the certificate issued by the Indira Gandhi Medical College, Shimla stating that Dr. K.C.Kaushal, DW-1 has successfully undergone training for performing laparoscopic surgery. This is the entire evidence on record of the case. Learned Additional Advocate General appearing for the appellant submits that the suit was not maintainable as in every operation, there are fair chances of failure of surgery. She relied upon State of Punjab v.Shiv Ram and others, (2005) 7 SCC 1, which was a case with somewhat similar facts and the Hon’ble Supreme Court held that merely because child was born after the performance of sterilization surgery would not mean that the operating surgeon was negligent. Learned counsel appearing for the plaintiff – respondent submits that the ratio of the judgment - 6 - does not apply in this case as the defendants have placed nothing on record of this case to show the procedure which was adopted, demonstrated and proved that adequate care and caution was taken. In fact the record of the surgery in the nature of operation notes “Bed Head Ticket”, the procedure adopted has not been placed on record and proved. He submits that this was the best evidence available which is in the care and custody of the appellant- defendant. He submits that the plaintiff respondent was under a bonafide belief that the she would be examined by the appellant-defendant to determine the success of the surgery which was not done. Learned counsel for the plaintiff submits that no medical record has been placed on record by the appellant which shows that it has been purposely withheld which is a pointer to the fact that in case such record had been produced it would have established the negligence of the defendant. He places reliance on the judgment of the Hon’ble Supreme Court in Gopal Krishnaji Ketkar v. Mohammed Haji Latif and others , AIR 1968 SC 1413 holding that a party in possession of the best evidence irrespective of the onus of the issue, - 7 - should produce it in Court in order to enable it to come to a just conclusion. I am unable to accept the contention of the learned counsel for the appellant that the terms and conditions of the form Ex.DA were read over and explained to the plaintiff who is admittedly an illiterate daily wage worker having studied only up to 5th standard. There is no corroboration on this aspect. The plaintiff has been truthful enough to admit her signatures on the form, but then judicial notice can be taken of the fact that signatures on the forms are obtained as a matter of routine by doctors. There is again no evidence on record to show that the defendants had taken necessary care and caution to perform laparoscopic surgery upon the plaintiff as alleged by them. The medical record maintained at the time of surgery and its conclusion would surely have indicated that the surgery performed on the plaintiff would have been successful/unsuccessful. There is also no evidence to show that proper follow up examination has been conducted on the plaintiff to establish that prima facie the surgery was a success. - 8 - The Hon’ble Supreme Court in Shiv Ram’s case (supra) has of course, held that there can be no presumption of negligence merely because the operation has failed and that proof of negligence will have to satisfy Bolam’s test. Further merely because a woman has undergone sterilization operation and became pregnant thereafter and delivered a child, the operating surgeon or his employer cannot be held liable on account of the unwanted pregnancy or delivery of the unwanted child. In the present case, the medical history of the plaintiff has not been placed on record. Admittedly, the Bed Head Ticket, the method of performing the surgery, its ultimate result and treatment prescribed would be in the possession of the State. This material has not been proved on record. There is also nothing to suggest or show that after the surgery, there was any follow up examination or she was required to undergo a particular course of treatment or routine check up. Even in Shiv Ram’s case (supra) relied upon by learned counsel for the appellant, the Hon’ble Supreme Court has held: - 9 - “26. The cause of failure of sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the materials removed at a subsequent operation of re- sterilisation. The discrepancy between operation notes and the result of x- ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynaecologist in case of failure of sterilisation operation. (See: Law of Medical Negligence and Compensation by R.K. Bag, Second Edition, p.139)” All these were matters of pleadings and proof. In the absence of evidence on record, the submission made by the appellant that all care and caution was taken to perform the surgery cannot be accepted. The learned District Judge while disposing of the appeal holds that the defendants have been unable to show prima facie that the operation was performed in accordance with the recognized principles of surgery and in the circumstances the - 10 - plaintiff was entitled to Rs.80,000/- as compensation. I do not see any reason to differ with the findings arrived at by the learned District Judge. This appeal is accordingly dismissed. There shall be no order as to costs. All interim orders shall stand vacated. The respondent will be entitled to the money which has been deposited in this Court pursuant to the orders passed on the application for interim injunction. March 3, 2008 (PC). (Dev Darshan Sud), J.