The central legal point established in the judgment is the duty of care owed by medical practitioners to their patients, as well as the vicarious liability of the State for the negligence of its employees.

R.L.Anand, J.

1. The unsuccessful plaintiff Ram Kali has filed the present regular second appeal and it has been directed against the judgment and decree dated 15.9.1992 passed by the Additional District Judge, Kurukshetra, who allowed the appeal of the defendants State of Haryana and set aside the judgment and decree dated 27.2.1989 passed by the learned Senior Sub-Judge, Kurukshetra, who granted a money decree for a sum of Rs. 50,000 in favour of the plaintiff and against the defendants, besides interest at the rate of 6 per cent per annum from the date of the decree till payment. The suit was filed in forma pauperis.

2. The brief facts of the case are that Ram Kali filed a civil suit in forma pauperis and prayed for a decree for a sum of Rs. 1,00,000 by way of damages against the defendants. The case set-up by the plaintiff (appellant herein) in the trial court was that she was operated upon for sterilization at Civil Hospital, Shahabad Markanda, tehsil Thenesar on 30.1.1985. In spite of the aforesaid operation, she gave birth to a female child on 18.12.1985. The case of the plaintiff-appellant was that she is a very poor lady and has been burdened with the expenses for bringing up the child, to perform her marriage, etc. It was also the case of the plaintiff in the trial court that she has given birth to a female child on account of negligence and carelessness on the part of the doctor of the defendant State and in these circumstances, the defendant State is vicariously liable to pay the compensation to her, along with interest at the rate of 18 per cent from the date of the operation.

3. Notice of the suit was given to the defendants. Written statement was filed and the suit of the plaintiff was contested. It was admitted that sterilization operation of the plaintiff was performed on 30.1.85 in the Civil Hospital, Shahabad and it was also admitted that the plaintiff gave birth to a female child on 18.12.1985. According to the stand of the respondent, the operation was performed by Dr. Neeraj Gaur who is a Postgraduate in Surgery and is a competent doctor. The doctor of the defendants never assured the plaintiff that there would be 100 per cent success in the operation. In such type of operations there are chances of failure for the reasons beyond human control. It was also pleaded by the defendants that the plaintiff could have terminated her pregnancy under the Medical Termination of Pregnancy Act, 1971 when she came to know that in spite of operation she had conceived a child.

4. From the above pleadings of the parties, the trial court framed the following seven issues:

(1) Whether loss and injury has been caused to the plaintiff, if so to what effect? OPP

(2) Whether the plaintiff is entitled to compensation? If so to what amount? OPP

(3) Whether the suit of the plaintiff is not maintainable in the present form? OPD

(4) Whether the suit of the plaintiff is bad for non-joinder and mis-joinder of necessary parties? OPD

(5) Whether no cause of action for filing the present suit has accrued to the plaintiff? OPD

(6) Whether the plaintiff has not valued the present suit for purposes of court- fee and jurisdiction? OPD

(7) Relief.

5. The parties led oral as well as documentary evidence in support of their case and, on the conclusion of the proceedings, the suit of the plaintiff was partly decreed and a money decree for the sum of Rs. 50,000 in favour of the plaintiff against the defendant was granted, besides interest at the rate of 6 per cent per annum from the date of the decree till payment. Since the suit was filed in forma pauperis, therefore, the trial court also gave the direction that a sum of Rs. 6,370 be realised from the plaintiff and to that extent the court- fee will be first charged on the decree. The suit of the plaintiff was decreed for the reasons given in paras 6 and 7 of the judgment dated 27.2.1989, which are being reproduced as under:

"(6) These two issues are interconnected and the same are bein