1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-original defendant no. 1 to quash and set aside the impugned judgment and decree passed by the learned 4th Joint Civil Judge (Senior Division), Vadodara dated 24/08/1999 in Special Civil Suit No. 602/1992 as well as the judgment and order dated 27/06/2008 passed by the learned Additional District Judge, Fast Track Court No. 11, Vadodara in Regular Civil Appeal No. 157/2005.
2. Respondents nos. 1 and 2-original plaintiffs instituted Special Civil Suit No. 602/1992 against the appellant and others in the Court of learned Civil Judge (Senior Division), Vadodara to recover compensation/damages contending interalia that despite there was tubectomy operation performed by the Doctor of the appellant-original defendant no.1, respondent no. 2-original plaintiff no. 2 delivered a baby girl. As such the appellant-original defendant no. 1 did not contest the suit. By judgment and decree dated 24/08/1999 the learned 4th Joint Civil Judge (Senior Division), Vadodara partly allowed the said suit directing the appellant-original defendant no. 1 to pay a sum or Rs. 1,08,000/- to respondents nos. 1 and 2-original plaintiffs with 6% interest from the date of filing of the suit till realization by inferring the negligence on he part of the Doctor, who performed the operation, solely on the ground that despite the tubectomy operation there as a baby child and, therefore, the negligence is inferred. Being aggrieved and dissatisfied with the judgment and decree passed by the learned 4th Joint Civil Judge (Senior Division), Vadodara dated 24/08/1999 in Special Civil Suit No. 602/1992, the appellant-original defendant no. 1 initially preferred First Appeal before this Court and pursuant to the interim order passed by this Court the appellant was directed to deposit the full decretal amount with the learned trial Court and out of which the original plaintiffs were permitted to withdraw 50% of the amount, which the original plaintiffs have withdrawn and the balance 50% of the decretal amount was directed to be invested in the Fixed Deposit (which is reported to be invested in the Fixed Deposit). It appears that thereafter due to the amendment in the Rules the appeal came to be transferred to the learned District Court, Vadodara, which was numbered as Regular Civil Appeal No. 157/2005 and by impugned judgment and order dated 27/06/2008 the learned appellate Court has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court again committing the same mistake, which has been committed by the learned trial Court with respect to inferring the negligence. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below the appellant-original defendant no. 1 has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. Shri R.M. Chauhan, learned advocate appearing for Shri H.S. Munshaw, learned advocate appearing on behalf of the appellant-original defendant no. 1 has vehemently submitted that both the Courts below have inferred the negligence on the part of the Doctor merely because after the tubectomy operation there was a baby child delivered by respondent no. 2-original plaintiff no. 2. It is submitted that as such the original plaintiffs were required to prove the negligence by leading appropriate evidence. It is further submitted that even the learned trial Court had not framed any issues with respect to the negligence in performing the tubectomy operation of the Doctor due to which there was alleged failure in the operation and the baby child was delivered. Relying upon the decisions of the Hon'ble Supreme Court in the case of State of Haryana and Ors. Vs. Raj Rani rendered in (2005) 7 SCC 22 as well as the decision in the case of State of Punjab Vs. Shiv Ram and Ors. reported in (2005) 7 SCC 1 it is requested to allow the present Second Appeal.
4. Shri Pranav Dave, learned AGP appearing on behalf of the respondent no. 3-original defendant no. 2 has supported the appellant-original defendant no. 1.
5. Shri Amit Nanavati, learned advocate appearing on behalf of respondents nos. 1 and 2-original plaintiffs has tried to oppose the present Second Appeal by submitting that as respondents nos. 1 and 2-original plaintiffs were not cross examined the learned trial Court has rightly held that there was failure in the operation due to the negligence of the Doctor. However, has submitted that if this Court is of the opinion that both the Courts have committed an error in inferring the negligence, in that case, the matter may be remanded to the learned trial Court to decide the suit on merits and after remanding the matter, parties may be permitted to lead the evidence on the issue of negligence.
6. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and order passed by both the Courts below. At the outset, it is required to be noted that both the Courts below have inferred the negligence solely on the ground that despite tubectomy operation respondent no. 2-original plaintiff no. 2 has delivered the baby child. Merely because there was failure in tubectomy operation, and respondent no. 2-original plaintiff no. 2 delivered the baby child, by that itself, the negligence cannot be inferred. Respondents nos. 1 and 2- original plaintiffs were required to prove the negligence by leading evidence that there was gross negligence on the part of the Doctor in performing the tubectomy operation due to which the operation has failed. As observed by the Hon'ble Supreme Court in the case of Raj Rani(Supra) childbirth inspite of a sterilization operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation. It is further observed that the Doctor can be held liable only in cases where the failure in the operation is attributable to his negligence and not otherwise. It is observed by the Hon'ble Supreme Court in the said decision that several textbooks on medical negligence have recognized the percentage of failure of the sterilization operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. It is further observed by the Hon'ble Supreme Court in the said decision that in absence of proof of negligence, the surgeon cannot be held liable to pay compensation and, therefore, the question of the State being held vicariously liable also would not arise. Thus, respondents nos. 1 and 2- original plaintiffs were required to prove by leading evidence that there was negligence on the part of the surgeon performing the surgery. It is required to be noted that in the present case even the learned trial Court has not even framed the issue that whether the sterilization operation failed due to negligence on the part of the concerned Doctor or not? Under the circumstances, and considering the request made by the learned advocate appearing on behalf of respondents nos. 1 and 2-original plaintiffs, the matter is to be remanded to the learned trial Court to decide and dispose of the suit in accordance with law and on its own merits and the learned trial Court to frame the issue on negligence and to consider the same in accordance with law and on its own merits after permitting the parties to lead necessary evidence on that.
7. In view of the above and for the reasons stated hereinabove, the present Second Appeal succeeds. The impugned judgment and order passed by the learned 4th Joint Civil Judge (Senior Division), Vadodara dated 24/08/1999 in Special Civil Suit No. 602/1992 as well as the judgment and order dated 27/06/2008 passed by the learned Additional District Judge, Fast Track Court No. 11, Vadodara in Regular Civil Appeal No. 157/2005 are quashed and set aside and Special Civil Suit No. 602/1992 is remanded to the learned trial Court to decide the same afresh in accordance with law and on its own merits after framing the issue with respect to the negligence if any, on the part of the Doctor in performing the tubectomy operation and after giving an opportunity to the parties to lead the evidence with respect to the negligence. The aforesaid exercise shall be completed as early as possible but not later than nine months from the date of the receipt of the present order.
8. With this, the present Second Appeal is allowed. It is reported that respondents nos. 1 and 2-original plaintiffs have withdrawn 50% of the amount, pursuant to the earlier order passed by this Court and, therefore, the same shall be retained by respondents nos. 1 and 2-original plaintiffs without prejudice to the rights and contentions of the respective parties in the suit and subject to the ultimate outcome of the suit. The balance 50% amount, which is lying in the Fixed Deposit, the appellant-original defendant no. 1 is hereby permitted to withdraw the same, which shall be paid to the appellant-original defendant no. 1 by an account payee cheque. No cost.
(M.R.
SHAH, J.) siji Top