( 1 ) THIS is an appeal at the instance of the State and its Officers under Sec. 96 of the Civil Procedure Code challenging the judgment and decree passed by the trial Court in favour of the respondent-original plaintiff.

( 2 ) THE relevant and pertinent facts in brief are to the effect that the respondent-original plaintiff was suffering from discomfort and pain in swallowing etc. , that after consulting the family physician she was ultimately referred to the Civil Hospital at Godhra, that she underwent consultation with the Civil surgeon - Dr. Mahendra Damor (appellant-defendant No. 3) and after due investigation, the said Dr. Damor performed surgery upcui the thyroid gland of the plaintiff. It may be pointed out that the investigations prior to surgery, and indicators which lead to the choice of surgery indicate that the plaintiff was suffering from non-toxic goitre effecting the thyroid gland. Subsequent to surgery on a pathology report, it appeared that the tissues were at a pre-cancerous stage.

( 3 ) THE claim of the plaintiff was that the surgery was performed upon her in a negligent manner without due caution, in an indifferent manner, and that as a result thereof, she lost her voice. Hence, the claim for damages for negligence.

( 4 ) WE have carefully perused the impugned judgment and decree, and we have been referred to relevant oral and documentary evidence on record by the learned Counsel for the respective parties.

( 5 ) THE medical evidence including expert evidence indicates that as a resuit of the surgery, the plaintiff has suffered permanent partial paralysis of the larynx (voice box ). This is a consequence of damage to or cutting of the recurrent laryngeal nerve. We may note here that the medical evidence indicates that there are two such nerves, each one passing on either side and behind the thyroid gland. From the medical evidence it appears that only one of those nerves was damaged and therefore, the plaintiff has not lost her voice completely, but has difficulty in speaking, cannot speak in normally loud voice, cannot raise her voice for shouting, cannot make herself heard even to a person in the next room and even has difficulty and discomfort in swallowing.

( 6 ) THE main question raised before us was the question of negligence, if any, of the surgeon and the question of compensation and its quantum.

( 7 ) IN the context of negligence, we may refer only to the oral evidence of the Surgeon who performed the surgery, namely Dr. Mahendra Damor who is original defendant No. 3 and examined at Exh. 70. There is no doubt that he is a qualified Surgeon and he has performed, according to his own evidence, about 30 operations on the thyroid. What we wish to emphasize from this oral evidence is that when he is shown the passage pertaining to precautions to be taken for such surgery from the standard textbook "short Practice on Surgery" by Bailey and Love (at page 581 thereof), and pertaining to preoperative investigations to be carried out and recorded, this witness categorically and blatantly states that he does not agree with the precautions and recommendations made in the aforesaid standard textbook.

( 8 ) ON account of this response of the expert witness (Surgeon), a specific question was put to him as to whether he would agree that in and during such surgery, after making an investigation the laryngeal nerve should be identified, located and separated? To this specific question, this witness gave a specific answer to the effect that the laryngeal nerve should not even be attempted to be identified.

( 9 ) THIS witness, furthermore, specifically admits that during the surgery on the plaintiff he had made absolutely no attempt to identify or separate the laryngeal nerve.

( 10 ) AT the same time, this witness specifically admits "recurrent laryngeal serve paralysis may be unilateral or bilateral, transient or permanent. Transient paralysis occurs in about 3 percent of nerves at risk and recovers in about three w

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