Failure of sterilization does not automatically constitute negligence; liability exists only with proof of malpractice, not merely based on resultant pregnancy.

Judgment :

B.P. Routray, J.

1. Heard Mr.Tripathy and Mr.Dash, learned Additional Government Advocates for the State-Appellant and Mr. Jena, learned Advocate for the Respondents.

2. Present appeal is directed against the judgment dated 21^st November 2006 of learned Additional District Judge (F.T.), Sambalpur, wherein the State-defendants were directed to pay a sum of Rs.1,08,000/- to the plaintiff towards maintenance of her 5^th child.

3. The facts of the case are that the plaintiff filed Title Suit No.43/13 of 2002-04 stating that she approached defendant no.2, the Medical Officer then working at Nakatideul P.H.C. to undergo sterilization operation to prevent pregnancy. After necessary checkup the sterilization operation was conducted by defendant no.2 on 21^st November 1997 with the assurance that said operation was successful and plaintiff would not conceive any child in future. To that effect a certificate dated 2^nd December 1997 (Ext.1) was issued to the plaintiff stating that she has undergone Tubectomy operation vide Sl.No.77 of 1997-98. But despite such operation undertaken by the plaintiff, the plaintiff was conceived again after two years and when she approached defendant no.2, he advised her to go for abortion by stating that such Tubectomy operation conducted became unsuccessful. The plaintiff could not prefer for abortion due to various reasons and on 4^th August 2000 she gave birth to a male child.

4. It is stated by the plaintiff that she belongs to a poor family below the poverty line and her husband is a daily labourer. They are unable to maintain their children, who already have two daughters and two sons previously and now maintaining the 5^th child would be difficult on their part due to their poor financial condition. So she made a representation to the Chief District Medical Officer, Sambalpur for financial help towards maintenance of 5^th child. But, no one pay any heed to the same.

5. The State-defendants have contested the case by filing their written statement denying the claim of the plaintiff for compensation. Defendant no.2 denied any negligence or fault on his part for the operation conducted on the plaintiff. It is submitted that the said operation was successful without any complications in the medical term and the pregnancy subsequent to the operation may be due to spontaneous canalization of the fallopian tube of the plaintiff.

6. One witness each from both sides were examined as P.W.1 and D.W.1 respectively, who are the plaintiff and defendant no.2. The learned trial court framed six issues for adjudication, which are as follows:

“1. Has the plaintiff any cause of action for the suit?

2. Is the suit maintainable in present form?

3. Has defendant no.2 neglected in conducting sterilization operation of plaintiff?

4. Are defendants liable to pay the damages and maintenance as claimed for by the plaintiff?

5. Whether getting conceived after successful sterilization operation makes the same liable to defendants to pay damages?

6. What other relief the plaintiff is entitled to?”

7. While answering Issue No.3, 4 & 5, which are the vital issues for consideration, the learned trial court has given findings in favour of the plaintiff’s contention regarding Ext.A, the consent application given by the plaintiff before conducting her operation. There is a declaration made in Ext.A to the effect that the operation, which is to be conducted on the plaintiff, may invite danger for her and there is possibility of failure in the operation. The learned trial court while dealing with such declarations made under Ext.A by the plaintiff before going for operation, has answered that since she is an illit