Vicarious liability of the employer for the acts of the employee in cases of medical malpractice.

R. L. Anand, J.

1. After hearing the learned counsel for the appellant, I am of the opinion that there is no illegality or impropriety in the impugned judgments.

2. Surinder Kaur filed a suit for damages for a sum of Rs.3,00,000 in the form of forma pauperis on the plea that in spite of the fact that she undertook a major family planning operation, she conceived a child and this was due to the sheer negligence of the doctor who operated upon her. The suit was contested by the State of Punjab mainly on the ground that the plaintiff could undergo termination of pregnancy the moment she came to know that she was conceiving a child.

3. The following issues were framed by the trial court:

(1) Whether defendant No.4 had been negligent in performing the tubectomy operation of the plaintiff? OPP (2) Whether the plaintiff is entitled to recover any amount by way of damages on account of any negligence shown by defendant No.4 in performing tubectomy operation? If so, out of whom? opp (3) Whether the plaintiff has served a valid notice under sec. 80, Civil Procedure Code? OPP (4) Whether the suit is bad for mis-joinder of necessary parties? OPD (5) Whether the suit is not maintainable? OPD (6) Whether the suit is vexatious? OPD (7) Whether the plaint is not properly verified? If so, its effect? OPD (8) Relief.

4. The learned trial court granted a money decree for a sum of Rs.2,10,000 and the State of Punjab filed the first appeal in the court of District Judge, Jalandhar, which for the following reasons given in para Nos.8 to 10 of the judgment dated 27.1.2000 partly allowed the appeal of the state and reduced the amount of damages to Rs.1,05,000:

" (8) It is admitted and duly proved on record that the plaintiff had undergone tubectomy operation in the Civil Hospital, Jalandhar, on 27.1.83 and sterilization certificate copy Exh. PA was issued by the hospital authorities of the Punjab state. It is also proved from the documents that plaintiff had delivered the child on 7.2.1990 in Sidhu Maternity home, Model Town, Jalandhar. When plaintiff had undergone the sterilization operation it was with an idea that she will not conceive and will not have any more children. Still she became pregnant. She did not undergo abortion due to her own religious or personal reasons. (9) Under the circumstances of the case, it is duly proved that plaintiff had conceived in spite of the fact that she had undergone family planning operation and could not expect to have child but it is also a fact that she did not go for abortion due to her own personal reasons and if there is any burden now for bringing up the unwanted child, then she has to share a part of that burden. (10) The trial court allowed Rs.1,00,000 towards maintenance for 20 years taking the maintenance of Rs.5,000 per year for 20 years and then had allowed rs.1,00,000 for marriage of the child and Rs.10,000 for medical and other expenses. I am of the view that medical and other expenses should be reduced in this case by 50 per cent. There will be no justification for allowing expenses for maintenance for 20 years and then marriage expenses. If Rs.1,00,000 is awarded as maintenance for 20 years, then interest on that amount can be used for the purpose of maintenance of the child. Thereafter the principal amount of Rs.1,00,000 can be used towards marriage. Under these circumstances, I am of the view that Rs.1,05,000 in all will be proper and reasonable damages which the plaintiff should be allowed. While affirming the findings on issue nos.1 and 2, damages are reduced to rs.1,05,000. "

5. The learned counsel appearing on behalf of the State submits that it was case of negligence on the part of the doctor and the courts below ought to have imposed the compensation upon the doctor also who operated upon the plaintiff.

6. I do not subscribe to the argument raised by the learned counsel for the appellant because the doctor who operated upon the plaintiff was performing the duty when he/she was un