JUDGMENT :

PRAYER : This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Decree and Judgment passed in A.S.No. 83 of 2006 on the file of Principal Subordinate Judge at Thiruvannamalai dated 17.12.2007, reversing the Decree and Judgment passed in O.S.No. 205 of 2004 dated 21.02.2005, on the file of Principal District Munsiff at Thiruvannamalai.

The plaintiff in O.S.No. 205 of 2004 on the file of the Subordinte Judge, Tiruvanamalai, is the appellant before this Court.

2. The plaintiff submits that she is an agricultural coolie and has two daughters to be maintained in additional to her husband. She hails from a poor family and has to eke out a living only by resorting to coolie work. The plaintiff submits that after the birth of the second female child, she underwent Laproscopic operation at Tiruvannamalai Government Hospital under the control of the District Medical Officer, Tiruvannamalai, who is the first defendant. She was admitted and operated upon on 15th August 1991. After a brief period of treatment, she was discharged from the hospital. Sometime in September 1991, she suffered from severe abdominal pain and therefore, she was admitted to the hospital and discharged again. In December 1991, her husband took her to one, Dr.Saiprasanna and the Doctor informed, to the shock and surprise of the plaintiff that she was pregnant. According to the plaintiff, she became pregnant only on account of the fact that Laproscopic operation had not been conducted in a proper manner and therefore, came forward with a suit for claiming damages for a sum of Rs.1,00,000/-.

3. The first defendant did not agree to the averment made in the plaint and filed a written statement hotly contesting the case. This statement was adopted by the other defendants. The bare facts of the case is that on 15.08.1991, the plaintiff was admitted and underwent Laproscopic surgery. According to them, the plaintiff did not report any menstrual problems after the operation and did not come for periodical medical check up and had willingly carried on with her pregnancy. They would further submit that, family planning operations are being done with special care as such operations are of national interest. They would further submit that the said special care which was endowed to all people was endowed to the plaintiff also. They would further submit that in every surgery, there is a given rate of failure and it is unfortunate that in this particular case, the victim was the plaintiff. They would further submit that to avoid any suits being filed, the Doctors are in habit of obtaining signature in a prescribed form those who are operated upon. They denied the allegation that the plaintiff is a poor person and stated that the Tahsildar gave a report that the plaintiff's husband is having a house and is getting an annual income of Rs.6,000/-. The matter was taken up for trial by the learned Special Judge, Tiruvannamalai.

4. On behalf of the plaintiff, Santhi/ the plaintiff was examined herself as PW-1 and she marked Exs. A-1 to A-3. On the side of the defendants, Sundari and Senthamiz Selvi were examined as DW-1 and DW-2 respectively and they marked Exs. B-1 to B-4. The learned trial Judge took note of the fact that the plaintiff delivered a premature child after a gestation period of 8 months. The trial Court framed the following issues for consideration:-

“(i) Whether the plaintiff is entitled to get relief as prayed for:

(ii) To what relief? Additional issues framed on 09.04.2003;

1) Whether there is a contributary negligency on the part of plaintiff?

2) Whether there is a negligence on the part of defendants?”

5. After detailed examination, the Court came to a conclusion that since the child was delivered within 8 months of being conceived, it does not give any credence to the defendants that the child is a fully grown baby and therefore could have been conceived even before the operation. In order to reach the conclusion, the learned Trial Judge