The suit was filed by the first respondent/plaintiff against the second respondent/first defendant and the appellants /defendants 2 & 3 claiming of a sum of Rs.2,00,000/

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :    10.06.2010
CORAM:
THE HON'BLE MR.JUSTICE V.PERIYAKARUPPIAH
A.S.No.97 of 1999

1. The Medical Superintendent
   General Hospital, Karaikal
2. The Union of India rep.by its
    Chief Secretary, Pondicherry .. Appellants
      vs.

1.Rasathi
2.Kalavani .. Respondents
Appeal filed under Section 96 of C.P.C against the Judgment and Decree of the learned Additional District Judge, Pondicherry at Karaikal in O.S.No.5 of 1997, dated 09.4.1998.

For Appellant     : Mr. R.Natarajan

For R1   :   Mr.S.Sounthar
For R2   :   No Appearance


J U D G M E N T

This appeal is directed against the Judgment and decree passed by the learned District  Judge, Pondicherry  in O.S.No.5 of 1997 dated 09.4.1998.

2. The suit was filed by the first respondent/plaintiff against the second respondent/first defendant and the appellants /defendants 2 & 3  claiming of a sum of Rs.2,00,000/- as compensation along with interest at 12% p.a from the date of plaint till the date of realisation and costs.  The suit was partly decreed with proportionate costs and the defendants 2 and 3 have preferred the present appeal.

3. The  brief facts of the case stated by the plaintiff before the lower Court would be as follows:-
a) The plaintiff is a house wife and her husband is employed as a petty merchant selling broom sticks and mats by carrying them on the bi-cycle.  They have one son and one daughter. In April 1994, the third child conceived, was required by the plaintiff to be terminated as she is unable to take care of the third child due to her ill-health and poor economic conditions.  Therefore, she was admitted in the Government Hospital, Karaikal to terminate the unwanted pregnancy. After abortion, Tubectomy Operation was done on the plaintiff on 22.4.1994 by the first defendant.  The plaintiff was discharged on 27.4.1994 and subsequently treatment was also taken by the plaintiff from the 1st defendant personally at her clinic.  But after some time, the plaintiff found the presence of some foreign material in her womb.   Since the plaintiff found that the operation of tubectomy was not properly done, she approached the first defendant for treating the above grievances.  The first defendant after examining the plaintiff has stated that there is no child in the womb of the plaintiff.  But the plaintiff has been feeling the presence of some foreign material in her womb.  The confirmation by the 1st defendant that there is no foreign material in the uterus of the plaintiff was recorded in the prescription issued by the 1st defendant. But the plaintiff was not confident in the statement of the 1st defendant which resulted her in taking further treatment with the other doctor.  On examination it was found that the statement of the first defendant was not correct.
(b) The plaintiff was unable to go for further treatment in Karaikal itself because the said future treatment would be under the supervision of the 1st defendant only and the plaintiff apprehended  very serious prejudice on her  health.  Therefore, the plaintiff was forced to take treatment from 15.7.1994 to 28.7.1994 in the General Hospital, Pondicherry.   The treatment and other reports in the General Hospital reveals that due to imperfect and irregular treatment of terminating the unwanted pregnancy on 22.4.1994 by the  1st defendant, the corpus of the child was not fully removed and unwanted portion of ill formed child was allowed to be inside the womb of the plaintiff while the tubectomy operation was done to the plaintiff.   Therefore, the  plaintiff was made to suffer by very serious setback in her normal health.    After the treatment at General Hospital, Pondicherry by removing the ill-formed child from the uterus of the plaintiff, again the operation of Tubectomy was done on the plaintiff. In view of the improper operation done by the defendants, the plaintiff lost her health and suffered mental agony.  Hence, she filed the suit claiming compensation for a sum of Rs. 2,00,000/- along with interest and costs.

4. The contentions of the first defendant before the lower Court are summed up thus:-
(a) It is true that the medical termination of pregnancy was conducted on 22.4.1994 by the 1st defendant and during the process of operation, a foetus of about 8 weeks size was found to be in the womb of the plaintiff and it was removed along with placenta. The 1st defendant took every diligent care to see that nothing unwanted is left out in the uterus. In continuation of the same process and after the M.T.P. was done, the Assistant doctor, Dr.Uma Maheswari started doing tubectomy.   The M.T.P operation was a total success and there was absolutely no complaint whatsoever from the plaintiff till she was discharged.  On 27.4.1994, at the time of discharge, she was advised to report to the out patient department after a month or even before a month in case she felt any difficulty or felt any complaint to her health.  She did not come to the OPD, even after a month as advised by the 1st defendant. But she came to the General Hospital, Karaikal only in the first week of July with complaints of irregular bleedings and a feeling of rolling movements inside her abdomen.    On examination, the uterus was found to be about 12 weeks size and as the ultra sonography was out of order on service  at that time, she was advised to come to the G.H, Kariakal  a few days later for ultra sonography for diagnosis and for further treatment.  Contra to the advise, the plaintiff voluntarily admitted for medical treatment at General Hospital, Pondicherry and it was found that she was pregnant with 10-12 weeks size in the gravid uterus.   Therefore, she underwent medical treatment and later re-tubectomy was also performed.
(b) From the foregoing statements of the facts which are verifiable with the relevant entries in the relevant case sheet, the operation of M.T.P. was done  by this defendant and it was neither defective nor otherwise faulty.   The later pregnancy which warranted abdominal hysterotomy dated 18.7.1994 at Pondicherry was probably due to the refusion of the Fallopian tubes.   In tubectomy operations, it is the considered view of the  experts from all over the world that such a possibility of refusion of fallopian tubes, in spite of diligent and perfect techniques for which neither the doctor concerned nor the medical institutions could be held responsible or liable.   Therefore, the first defendant is not guilty of negligence and carelessness in handling the medical problems.  Hence, she prayed for dismissal of the suit.

5. The contentions of the second defendant before the lower Court are summed up thus:-
(a) It is true that the plaintiff was admitted on 21.4.1994 in the Government Hospital, Karaikal for medical termination of pregnancy and for tubectomy. The plaintiff was under care and treatment of the 1st defendant with the over all supervision of the second defendant.  The plaintiff was discharged on 27.4.1994 and during that period there was absolutely no  complaint of any type from the plaintiff.  In the suit at reply, it is complained that something unwanted was left out in the uterus of the plaintiff as she was alleged to have suffered from irregular bleedings and a feeling of rolling movements inside her womb.   This kind of disorder or inconvenience or difficulty was reported to the Government Hospital, Karaikal in the first week of July 1994 and not within the month of May or June. It is pertinent to point out at this stage that the plaintiff had not reported to the OPD Government Hospital, Karaikal after a month from the date of discharge.
(b) On examination of the uterus of the plaintiff, she was suspected to have possessed of a foetus of about 12 weeks size and as the ultra sonography was out of order at that time  she was advised to come to the Government Hospital, Karaikal a few days later for ultra sonography for proper diagnosis and for further treatment but the plaintiff did not turn up.  But the plaintiff on her own accord had gone to Pondicherry and got herself admitted in the Government Hospital, Pondicherry.  On 15.7.1994, from the verification of the case sheet pertaining to the plaintiff and details of the treatment given to her at Government Hospital, Pondicherry,it was found that she was pregnant with 10-12 weeks size foetus in the gravid uterus.  Therefore, an operation had been performed on her abdominal region.  She had undergone abdominal hysterotomy on 18.7.1994 in the said hospital at the hands of a senior doctor. Re-tubectomy was also performed in the same sitting in view of her fresh pregnancy.
(c) From the foregoing statement of facts, which are verifiable with relevant entries in the relevant case sheet, the operation of M.T.P done by the 1st defendant was neither defective nor otherwise faulty. The later pregnancy which warranted abdominal hysterotomy on 18.7.1994 at Pondicherry was probably due to the re-fusion of the Fallopian Tubes. In tubectomy operation, it is the considered view of the experts world over that a possibility of re-fusion of fallopian tubes is there in spite of diligent handling and perfect techniques for which neither the doctor concerned nor the medical institutions could be held responsible or liable. Even if the M.T.P operation was a failure as alleged by the plaintiff, the foetus that was subjected to hystertomy on 17.7.1994 should be of the size of about 20 weeks.   But it was not  so. Hence, the suit is liable to be dismissed.

6. The lower Court had framed the following three issues and one additional issue and had proceeded with the trial of the suit.
(1)  Whether there was no negligence on the part of the defendants in performing tubectomy operation on the plaintiff?
(2) Whether the plaintiff is entitled for suit claim?
(3) To what other reliefs the parties are entitled to?
Additional Issue
1. Whether the defendants conducted the abortion, at all properly, before conducting tubectomy at Government Hospital, Karaikal on plaintiff?

7. In a full fledged trial, the lower Court had examined the plaintiff as P.W.1 and marked Exs.A1 to A7 on the side of the plaintiff and  examined D.W.1 to D.W.3 and marked Ex.B1 on the side of the defendant and had come to a conclusion of  decreeing the suit partly with proportionate cost. Aggrieved by the said judgment and decree, the defendants 2 and 3 have preferred the present appeal.

8. Heard Mr.R.Natarajan, the learned counsel for the appellants / defendants 2 and 3 and Mr.S.Sounthar, the learned counsel for first respondent/ plaintiff.  No appearance for second respondent/ 1st defendant.

9. On a careful perusal of the pleadings, evidence adduced by both sides before the lower Court, the judgment and decree passed by the lower Court, the grounds raised in the appeal memo and the arguments advanced by the learned counsel for both sides, this Court could see that the following questions are necessarily to be decided in this appeal:-
1.Whether the first defendant conducted the abortion of pregnancy promptly before the conduct of the tubectomy at Govt.Hospital, Karaikal on the plaintiff ?
2. Whether there was any negligence on the part of the defendants in performing the tubectomy operation on the plaintiff at Govt. Hospital, Karaikal ?
3. Whether the compensation awarded at Rs.1 lakh with subsequent interest at 12% per annum from the date of plaint till the date of payment is sustainable ?
4. Whether the judgment and decree passed by the lower Court are liable to be set aside and is the appeal allowable ?
5. To what relief the appellants are entitled for ?

10. The learned counsel for the appellants Mr.R.Nataraj, Additional Govt. Pleader (Puducherry) would submit in his argument that the plaintiff did not allege in the plaint that the first defendant did not perform M.T.P but it has been categorically averred by the plaintiff that the medical termination was erroneously done by the first defendant and therefore the left out her womb had developed into subsequent complications and resulted in another M.T.P at Govt.Hospital, Pondicherry and she had to undergo yet another tubectomy and therefore, the findings of the lower Court that the first defendant had not performed M.T.P at Govt.Hospital, Karaikal cannot be correct.

11. He would further submit in his argument that the case of the defendants 2 and 3 was  that re-tubectomy was done after M.T.P on fresh pregnancy and the same was also supported by the evidence. He would further submit in his argument that the evidence of DW3 coupled with the evidence of DW1 would go to show that M.T.P was already done and thereafter only tubectomy was done at Govt.Hospital, Pondicherry. He would further submit in his argument that the lower Court had relied upon Ex.A3 and had come to an  erroneous conclusion that the pregnancy was continued, but it has been categorically established by Ex.B1, which  the case sheets of the plaintiffs produced in Ex.B1, would dis-prove the same. He would also submit in his argument that no expert has been examined on the side of the plaintiff to show that the M.T.P done by the first defendant on the plaintiff was negligently carried out by the first defendant. He would further argue that there was a clear indication given by the Hon'ble Apex Court in the recent judgment reported in 2005(6) SCALE 770 SC in between State of Punjab Vs. Shiv Ram and others to the effect that if the woman having undergone the sterilization operation became pregnant and delivered a child and  the operating surgeon or employer cannot be held liable for compensation amount of unwanted pregnancy or unwanted child and the claim in tort can be sustained only if there was negligence on the part of the surgeon who  performed the surgery. He would further submit in the argument that the lower Court had erroneously shifted the burden on the defendants to dis-prove the stand of the plaintiff. He would also submit that the lower Court did not frame the issue regarding the medical negligence in the performance of tubectomy or was there any re-fusion of fallopian tubes subsequent to the said tubectomy or whether there was any negligence of the first defendant and such points should have been considered by the trial Court, but there were over looked and the lower Court had ventured into un-connected facts of the case and erred in deciding the same. He would also submit that the plaintiff did not prove any medical negligence on the part of the first defendant in doing the M.T.P on her at General Hospital, Karaikal and therefore, the judgment of Hon'ble Apex Court would be squarely applicable to the present case. He would further argue that the lower Court had draw the adverse inference for the non-production of the case records for the M.T.P and tubectomy operation done at Govt. Hospital, Karaikal, which is not correct when the subsequent case sheet produced in Ex.B1 would be sufficient to show that there was no defect in the  M.T.P and tubectomy done at Govt.Hospital, Karaikal. He would also submit that the reason stated by the plaintiff for not  taking further medical assistance at Govt.Hospital, Karaikal but took medical assistance at Govt.Hospital, Pondicherry for the second operation cannot be believed. He would again submit in his argument that the plaintiff had failed in her attempt to prove the case that the first defendant had committed medical negligence in doing the M.T.P on her and the consequent tubectomy operation at Govt.Hospital, Karaikal and therefore, she had to undergo another M.T.P and tubectomy at Govt.Hospital,Pondicherry and sustained mental agony. Therefore, he would request the Court to set aside the judgment and decree passed by the lower Court in awarding a sum of Rs.1,00,000/- towards compensation for the alleged medical negligence on the part of the first defendant and to dismiss the suit by allowing the appeal with costs.

12. The learned counsel for the first respondent/plaintiff  Mr.Sounthar would submit in his argument that the evidence of DW1 would be sufficient to show that there was clearly a medical negligence on the part of the first defendant in doing M.T.P on the plaintiff at Govt.Hospital,Karaikal. The evidence of DW3 would go to show that there was a foetus aged about 10 weeks found in the womb of plaintiff and therefore, she did hysterotomy and sterilization on the plaintiff, on the advise of the Unit Chief Doctor, Dr.Shankari Devi and the  said surgery was admittedly done on 18.07.1994.  If really M.T.P was done successfully by the first defendant at Govt.Hospital,Karaikal on 22.04.1994 and the subsequent tubectomy was also promptly done, re-fusion of the fallopian tubes happened in the gestation period and the plaintiff was also  having sexual life  and  conceived, consequently,  it could not be a 10 weeks aged  fetus in the womb of the plaintiff for doing the hysterotomy and sterilization at Government Hospital Pondicherry. He would further submit in his argument that the tubectomy said to have been performed at Govt.Hospital,Karaikal by one Dr.Uma Maheshwari, was said to have performed under the care of the first defendant and the defendants did not even examine the said Dr.Uma Maheshwari to prove that the tubectomy operation was perfectly done by her nor DW1 would speak to the effect that the tubectomy operation was promptly done by Dr.Uma Maheshwari in her presence. He would also submit that there was nothing spoken to the effect that  the surgery was performed by disconnecting the fallopian tubes and knots were made in the fallopian tubes or electric charring been done at the ends of the cut fallopian tubes, in the evidence and in the absence of such evidence it could be presumed that the subsequent conceiving or the continuing of the pregnancy at the womb of the plaintiff would draw a presumption that the first defendant and her assistant doctor Dr. Uma Maheshwari have not done the M.T.P and tubectomy surgery at Govt.Hospital, Karaikal, promptly but they have committed negligence and that they are the cause for  the second surgery of M.T.P and tubectomy for the plaintiff  within a span of three months. He would further submit in his argument that such surgeries caused due to the negligence of the first defendant and other defendants and the health of the plaintiff has been very much affected and her mental condition was also agonised considerably. He would further submit in his argument that the evidence of PW1 would go to show that she had continued pregnancy even after the performance of the first M.T.P and tubectomy done at Govt.Hospital, Karaikal and the documentary evidence in Ex.A3 would categorically show that the plaintiff was continuing the pregnancy and the M.T.P was necessitated  for the  removal the pregnancy and it would shift the burden on the defendants to show that there was negligence on their part in doing the 1st M.T.P and tubectomy surgeries at Govt.Hospital, Karaikal. He would again submit in his argument that the failure rate in the case of tubectomy even when a surgery was carried out 100% successful, would be only at 0.1 to 0.5% and that would be due to re-canalization of the fallopian tubes. He would further submit in his argument that there is no dispute that the judgment of Hon'ble Apex Court had laid down that there should be proof of medical negligence for claiming compensation against any doctor who did the sterilization operation. He would further submit in his argument that the subsequent performance of M.T.P and tubectomy would themselves speak about the medical negligence of the first defendant in doing the M.T.P and tubectomy along with her assistant doctor Dr.Uma Maheshwari. He would also submit that the said assistant Dr.Uma Maheshwari was not examined on the side of the defendants to prove that the first tubectomy was promptly done by her after the medical termination of pregnancy. He would also submit that the defendants did not produce the case records maintained in the name of the plaintiff at Govt.Hospital, Karaikal and those documents if produced would show that there was no medical termination of pregnancy promptly done on the plaintiff and no tubectomy was perfectly done on the plaintiff by the first defendant and her assistant doctor. Since those documents would disclose the medical negligence of the first defendant and her assistant, they did not choose to produce them into Court and there was no explanation offered for the non-production of those records.

13. He would therefore, submit in his argument that the medical negligence of the first defendant has been clearly proved and the defendants have not chosen to disprove the case of the plaintiff. He would also submit that the quantum of compensation was arrived by the lower Court at Rs.1,00,000/-  with subsequent interest are moderate and therefore, the case putforth by the appellants/defendants 2 and 3 cannot be sustained. He would also submit in his argument that the first defendant is figuring as second respondent in this appeal. She has neither filed a separate appeal nor have joined in this appeal along with the appellants or to file any cross appeal in support of the appellant against the plaintiff / first respondent. Therefore, the judgment and decree passed by the lower Court would be binding upon the first defendant / second respondent and when first defendant is liable to pay compensation as per the direction of the lower Court, the defendants 2 and 3 / appellants herein are also liable to pay the decree amount as ordered by the lower Court. Therefore, he would request the Court to dismiss the appeal and to confirm judgment and decree passed by the lower Court.

14. I have given anxious thoughts to the arguments advanced on either side. It is always better to apply the arguments for discussions  pointwise.
Point Nos.1 & 2:
The suit has been filed by the lower Court seeking for compensation of Rs.1,00,000/- with subsequent interest against all the three defendants by stating that the first defendant who was working as a Doctor in Govt.Hospital, Karaikal, had performed M.T.P on the plaintiff negligently and the subsequent tubectomy done in furtherance of M.T.P was also carried out without promptness but with negligence and therefore, the plaintiff had to undergo yet another M.T.P and the tubectomy at Govt.Hospital, Pondicherry within a period of 12 weeks from the earlier surgeries.

15. The plaintiff approached the Govt.Hospital, Karaikal for terminating the pregnancy since  she had conceived for the third time and she did not want any more child and accordingly, the said unwanted pregnancy was advised to be terminated and therefore, she was admitted in Govt.Hospital, Karaikal on 21.04.1994. The first defendant was in-charge of the said ward. The surgery for terminating the unwanted pregnancy was done and the tubectomy operation was also performed on the plaintiff on 22.04.1994 and she was discharged on 27.04.1994. The said plaintiff after her discharge at Govt.Hospital,Karaikal had again admitted at Govt.Hospital, Pondicherry on 15.07.1994 and she was forced to take treatment there till 28.07.1994. She had undergone M.T.P in the said hospital and re-tubectomy was also performed on her. According to the plaintiff, the said necessity for undergoing the second M.T.P and tubectomy surgery at General Hospital, Pondicherry was due to the negligent surgery carried out by the first defendant, while her pregnancy was terminated at Govt.Hospital, Karaikal and the consequent tubectomy was not promptly performed by her in the said hospital.

16. We have to see whether there was any medical negligence on the part of the first defendant in performing the first M.T.P at Govt.Hospital, Karaikal and consequently, the tubectomy in the same hospital which resulted for the second M.T.P and the re-tubectomy performed at Govt.Hospital, Pondicherry. At this Juncture, we have to bear-in-mind the dictum of judgment of the Hon'ble Apex Court reported in 2005 (6) SCALE 770 (SC) in between State of Punjab Vs. Shiv ram and Others. The relevant passage would run thus:-
"17. ... It is thus clear that there are several alternative methods of female sterilization operation which are recognised by medical science of today. Some of them are more popular because of being less complicated, requiring minimal body invasion and lessee confinement in the hospital. However, none is foolproof and no prevalent method of sterilization guarantees 100% success. The causes for failure can well attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon. Authoritative Tex Books on Gynaecology and empirical researches which have been carried out recognize the failure rate of 0.3% to 7% depending on the technique chosen out of the several recognized and accepted ones."
"24. We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child.  The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery."

17. On the foot of the aforesaid principle laid down by the Hon'ble Apex Court, we have to approach the present case. According to the plaintiff, the first defendant had committed medical negligent in doing the M.T.P as well as tubectomy surgery on herself at Govt.Hospital, Karaikal. For that she had adduced evidence examined as PW1 and had produced Exs.A1 to A3 on her side. The Exs.A1 to A3 would go a long way to show that the plaintiff underwent M.T.P and tubectomy at Govt.Hospital, Karaikal on 22.04.1994. She would speak in her evidence that she was admitted in Govt.Hospital, Karaikal on 21.04.1994. The first defendant who was the Head of the Department for Gynaecology  terminated the pregnancy and performed tubectomy conducted operation on her. She was discharged after 5 days and after 2 months, she found symptoms of pregnancy like vomiting and weakness and she went to first defendant for checkup and she prescribed certain  medicines referred  in Ex.A2 and she had told the plaintiff to come to her  clinic to undergo check up about the pregnancy symptoms. The first defendant  advised PW1 that no further treatment was necessary. PW 1 would further depose that she had lost confidence in the first defendant  and therefore, she approached the Govt.Hospital, Pondicherry for the treatment of the symptoms of pregnancy and she had taken treatment there and done and  second abortion was done there and the discharge slip was produced as Ex.A3. However, the treatment given by the first defendant, was admitted in her evidence when she was examined as DW1 but she would speak  that the plaintiff did not approach her after one month, even though she was advised to approach Govt.Hospital, Karaikal, for review her case D.W.1 would also speak that the tubectomy operation was done by her assistant Dr.Uma Maheshwari and there was a possibility of re-canalisation of fallopian tubes and thereby fresh conception would be possible and therefore, there is no negligence on her part in doing the M.T.P at Govt.Hospital, Karaikal.

18. Despite her examination was spread over two days, the case sheets in respect of the plaintiff's treatment  maintained at Govt.Hospital, Karaikal for the performance of M.T.P and tubectomy on and from 21.04.1994 to 27.04.1994 were not produced. The defendants did not explain about the reason for  non-production of the said case sheets maintained in the name of the plaintiff at Govt.Hospital, Karaikal. Similarly, the Doctor who had performed the first tubectomy surgery on the plaintiff at Govt.Hospital, Karaikal, namely Dr.Uma Maheshwari was not examined in support of the evidence of DW1. If she was examined, it could be evidenced that the tubectomy operation was done by her and it was not performed by the first defendant and the said surgery was very carefully performed by her without any negligence. It is not disputed that the first defendant was the Chief Doctor of the Department of Gynaecology at Govt.Hospital, Karaikal. According to her evidence the Superintendent has to allot the work to other doctors but  however, as the Chief Doctor who is  the  supervising authority over the other doctors while  doing surgery, she is also responsible for any negligence committed by the Assistant Doctors. However in this case, it has not been shown to Court that the first defendant did not conduct the tubectomy operation. It is the clear case of the plaintiff that the first defendant had done both M.T.P and tubectomy surgeries to her. In such circumstances, the non-production of the documents is very much handicapped for coming to the conclusion, as to whether the tubectomy surgery was done by Dr.Uma Maheshwari, as spoken by DW1 or by the first defendant by herself. It is the duty of the first defendant to show that her version is true by producing the case sheets of the plaintiff kept under the custody of Govt.Hospital, Karaikal. Non-production of the said documents would certainly affect the case of the defendants.

19. Therefore, this Court could accept the evidence adduced by the plaintiff that the said surgeries of M.T.P and tubectomy were carried out only by the first defendant at Govt.Hospital,Karaikal.  Moreover, it is categorically seen from Ex.A1 that she was discharged from Govt.Hospital,Karaikal on 27.04.1994 and thereafter she was again examined on 04.07.1994 for nausia and she was again directed to come to hospital on the forth coming Thursday. Ex.A2 prescription issued to the plaintiff would go to show that the first defendant had given her certain medication in the said Ex.A2 prescription.

20. According to the evidence of PW1, the Doctor stated that her uterus was bulged in size and therefore, she was asked to come for examination on another day.  According to the evidence of PW1, she felt rolling something in her abdomen and therefore, she lost confidence with the  first defendant and therefore, she approached the Govt.Hospital, Pondicherry on 15.07.1994. The discharge slip has been produced as Ex.A3. In the said discharge slip it has been categorically mentioned and disclosed that hysterotomy was done to her on 18.07.1994, for the pregnancy continued after the patient underwent M.T.P and sterilization done at Govt.Hospital, Karaikal and the foetus was aged 16 weeks and the said document was issued only at Govt.Hospital, Pondicherry, at the time of discharge of the plaintiff. However, the defendants have produced Ex.B1, the case sheets maintained in the name of the plaintiff at Govt.Hospital, Pondicherry.

21. According to the submission made by the learned Additional Government Pleader (Puducherry) for the appellant No.2, the findings in the examination of plaintiff would show that the pregnancy was a fresh one and she was advised to do re-tubectomy and therefore, the mentioning of continuance of pregnancy in Ex.A3 would be a mistake. According to Ex.B1, there was a finding that the fresh pregnancy had to be terminated and M.T.P was done on that basis only.

22. According to the plaintiff, she underwent M.T.P for the  second time and re-tubectomy had to be done at Govt.Hospital,Pondicherry for the mistake committed by the Doctor in not removing the foetus, during the first M.T.P at Govt.Hospital, Karaikal or the mistake committed during the tubectomy surgery done by the first defendant or at her supervision.

23. The lower Court had in detail gone into the age of the foetus as per the evidence of DW1 and DW3 and had arithmetically calculated the plaintiff's pregnancy, which was terminated at Govt.Hospital, Pondicherry and had come to a conclusion that the first M.T.P was not at all performed by the first defendant. When the first M.T.P was not done, there is no question of any performance of first tubectomy at Govt.Hospital, Karaikal. In view of the different opinions given in Exs.A3 and B1 about the continuance of pregnancy in Ex.A3 and the fresh pregnancy in Ex.B1, it has become necessary to go in to the case sheets of the plaintiff maintained at Govt. Hospital, Karaikal, but the said document was not produced by the defendants. The said documents are very much important and if they are produced, it  would disclose as to whether the M.T.P and tubectomy were done by the first defendant or  Dr.Uma Maheshwari in a prompt manner without any negligence on their part. The procedure for doing the tubectomy have not spoken by DW1 and how it was performed either by her by Dr.Uma Maheshwari. The important points which are necessary to be spoken by the said Doctor is very much essential to determine the medical negligence either committed by her or not. The fallopian tubes which are necessarily to have been  cut and knots be put with clips or being electrically charred on both  the ends of the tubes are essential for the purpose of avoiding the re-canalising of the fallopian tubes.

24. Moreover, the doctor who performed the tubectomy could speak that she had identified the fallopian tubes and she did not mistakenly  identified  any other fat resembling fallopian tubes  instead of the fallopian tubes and put the pieces of the fallopian tubes preserving in formalin solution in order to prove that the tubectomy was successfully done, were not at all placed before Court. When certain evidence is lacking without non-production of case sheets and as well as the non examination of alleged Dr.Uma Maheshwari are serious omissions. Therefore, there is no other options to infer adverse inference leading to presumption that the said documents were not produced for some purpose that if produced it would disclose the negligence on the part of the first defendant or his assistant Dr.Uma Maheshwari.

25. Indisputably, the plaintiff was done with second M.T.P and tubectomy at Govt.Hospital, Pondicherry and  that would show that she would have continued the earlier pregnancy or  through fresh pregnancy on the failure of tubectomy, since the said failure of tubectomy was not explained nor the  continuing of earlier pregnancy was not completely explained by production of those case sheets maintained in the name of plaintiff at Govt.Hospital, Karaikal. Therefore, it has become necessary for this Court to draw the adverse inference   based on documentary evidence which out to have been produced on the side of the defendants.

26. The case of the appellants/defendants that the plaintiff herself has not proved the initial burden cast upon  her cannot be accepted because even after the earlier tubectomy she is said to have 10 weeks of pregnancy as per clinical examination and 16 weeks pregnancy as per ultra-sound examination. The evidence of DW3, the Doctor who performed the second hysterotomy on the plaintiff would not be helpful to show that the performance of earlier M.T.P and tubectomy  was done with all care and caution.

27. In the aforesaid circumstances, there is no error on the part of the lower Court in drawing adverse inference against the defendants.

28. The judgment of this Court cited by the learned counsel for the plaintiff reported in 2007 (1) CTC 496 in between Dr.Alice George v.Lakshmi would be very much applicable to the present case. The relevant passage would be as follows:-
"9. ... a duty was cast upon the defendants to prove that the tubectomy family planning operation by Pomeroys method, was done carefully. But, the appellants/defendants have thoroughly failed to prove the same."
"... Apart from that, the lower Courts have rightly followed the judgment of the Apex Court reported in State of Haryana v.Santra, 200 (3) MLJ 98, which speaks about the Doctor entering into a medical profession and a duty to act with reasonable degree of care and skill. This Court is unable to notice any question of law, much less substantial question of law to be formulated by this Court."
The said principle laid down by this Court and the judgment of the Hon'ble Apex Court referred therein would be applicable to the present circumstances of this case, where no documents have been produced on the side of the defendant's in respect of the first M.T.P and first tubectomy which were done at Govt.Hospital, Karaikal. Therefore, the negligence substantiated through the evidence of  PW1 stand unproved.

29. Moreover, the defendants 2 and 3 have preferred the appeal against the judgment and decree passed against them. However, the first defendant has not elected to prefer a separate appeal or any cross appeal in this appeal against the findings of the lower Court. The said findings of the lower Court against the first defendant is binding upon the first defendant.

30. For the foregoing discussion I am of the view that the plaintiff has proved the negligence on the part of the first defendant in doing M.T.P and tubectomy in the Govt.Hospital, Karaikal either by her or through Dr. Uma Maheshwari on the plaintiff. As per the dictum of the judgment of Hon'ble Apex Court reported in 2005 (6) SCALE 770 the same was not disproved by the defendant, by adducing the documentary evidence in connection with the treatment given to the plaintiff at Govt.Hospital, Karaikal. Therefore, the aforesaid points are decided in favour of the plaintiff.

31. Point No.3:
As regards the compensation payable to the plaintiff for the mental agony and sufferings she had, for  the second M.T.P and re-tubectomy done to her at Govt.Hospital, Pondicherry, the plaintiff prayed for a sum of Rs.2,00,000/- with subsequent interest thereon. The lower Court had considered the damages caused to the plaintiff due to the negligence of the first defendant and had arrived at Rs.1,00,000/- towards compensation. The plaintiff did not filed any separate appeal nor cross appeal for enhancing the  compensation. Similarly, the defendants have not raised any points for reducing the compensation from Rs.1,00,000/- to a lesser amount. The main objection raised by the defendants 2 and 3 would be that there was no negligence on the part of the first defendant and therefore, they are not allowable. The said point has been decided against the defendant and therefore, the compensation amount fixed by the lower Court at Rs.1,00,000/- with interest at 12% per annum from the date of plaint till the date of payment is quite justifiable. Accordingly, the findings reached by the lower Court on the quantum of compensation is upheld and the point is decided accordingly.

32. Point No.4:
In view of my findings reached in the previous points 1 to 3 that the findings reached by the lower Court are un-assailable, the judgment and decree passed by the lower Court are not liable to be set aside but are confirmed. Consequently, the appeal filed by the defendants 2 and 3 are not allowable.

33. Point No.5:
From my earlier discussions, the judgment and decree passed by the lower Court are confirmed and the appeal preferred by the defendants 2 and 3 is dismissed with costs.



In the result, the appeal is dismissed with costs.
 
10.06.2010 Index   : Yes/No
Internet: Yes/No

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V.PERIYA KARUPPIAH, J.,
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To
Additional District Judge,
Pondicherry at Karaikal.





Pre-Delivery Judgment in
A.S.No.97 of 1999


















10.06.2010