The mere failure of a sterilization operation does not automatically establish negligence, and the plaintiff's actions or inactions must also be considered in determining liability.

VALMIKI J. MEHTA, J.

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit/Lok Nayak Hospital, Govt. of N.C.T. of Delhi, impugning the Judgment of the Trial Court dated 16.8.2005 by which the trial court decreed the suit for recovery of monies filed by the respondent/plaintiff and passed a decree for a sum of Rs. 2,20,000/-. Out of the amount of Rs. 2,20,000/- a sum of Rs. 2,00,000/- has been directed to be put in a fixed deposit in the name of the child Aman and till his attaining age of 18 years, and interest would be withdrawn by the respondent/plaintiff. Suit has been decreed on account of the case of the respondent/plaintiff of medical negligence that the appellant’s/defendant’s Doctor performed a sterilization operation on the respondent/plaintiff but it was not successful and resultantly the respondent/plaintiff conceived again.

2. The facts of the case are that respondent/plaintiff filed the subject suit by pleading that she was operated upon on 15.5.2001 in the appellant’s/defendant’s hospital by the concerned doctor namely Dr. Deepa. Respondent/plaintiff pleaded that she took all post operative care including taking all prescribed medicines as also precaution but after a few months of the operation she suspected that she had conceived and therefore when she went to the Physical Health Centre at Dayalpur, Delhi, on 21.10.2002 and has got herself examined on 23.10.2002, it was discovered that respondent/plaintiff was pregnant as the tubectomy operation performed on her had failed. Respondent/plaintiff pleaded that Dr. Deepa (defendant no. 1 in the suit) fell short in taking reasonable and due care while performing the sterilization operation, resulting in defect and deficiency in the operation, therefore respondent/plaintiff became pregnant again to have her 7th child. After serving a legal notice/Ex. P-3 and which was replied to by the appellant/defendant no.2 vide reply dated 24.1.2003, Ex. P-2, the subject suit was filed.

3. The suit was contested by the appellant/defendant and it was denied that there was any negligence while performing the sterilization operation. The appellant/defendant pleaded that the respondent/plaintiff before performing her operation had signed two forms on 14.5.2001, and which forms were also counter-signed by the sister-in-law/Bhabhi of the respondent/plaintiff namely Ms. Suman, and that in these forms Ex. PW-1/D-1 and Ex. PW-1/D-2, it was specifically mentioned by the appellant/defendant that the operation need not be always successful and there are always some chances of failure, and if the operation is not successful the appellant/defendant or the concerned Doctor will not be held responsible. The contents of these documents were explained to the respondent/plaintiff in Hindi in the presence of her sister-in-law/Bhabhi, namely Ms. Suman. It was denied that the appellant’s/defendant's doctors had given an assurance that the operation would be 100% successful. Appellant/defendant contended that the respondent/plaintiff was herself responsible because she could have got done the abortion in time, but she did not get such abortion done. The suit was therefore prayed to be dismissed.

4. After pleadings were complete, trial court framed the following issues :

“1. Whether the plaintiff is entitled to damages, as claimed in the suit? OPP

2. Whether the plaintiff is entitled to any interest, if so at what rate and for what period? OPP

3. Relief.”

5. The only relevant issue was issue no. 1 and the trial court has decided this issue in favour the respondent/plaintiff. Trial court has held that the respondent/plaintiff had not signed the forms Ex. PW-1/D-1 and Ex. PW-1/D-2 inasmuch as she has specifically denied the signing of these forms by her and her sister-in-law/Bhabhi/Ms. Suman, and consequently, the trial court believed such stand of the respondent/plaintiff. Trial court has also held that since the concerned doctor n