Medical professionals have a duty to act with a reasonable degree of care and skill, and breach of such duties may give rise to a cause of action for negligence and entitlement to recover damages.

H.S. MADAAN, J.

1. Briefly stated, facts of the case are that plaintiff Smt.Simar Kaur, an indigent person after being allowed to sue as such, had brought a suit against defendants i.e. State of Haryana through Collector, Kaithal, Civil Surgeon, General Hospital, Kaithal, Dr.Satbir Chaudhary, Surgeon, General Hospital, Kaithal and Director, Health Services, Haryana, praying for grant of Rs.5 lakhs with interest @ 2% per month by way of damages alleging of failure of her family planning operation due to negligence and fault of the defendants.

2. As per the version of the plaintiff, she had five minor children i.e. three daughters and two sons; her husband is a poor truck driver having meagre income; she got herself operated upon in General Hospital, Kaithal on 22.3.1994 for tubectomy operation; that operation was performed by defendant No.3 – Dr.Satbir Chaudhary, Surgeon, General Hospital, Kaithal, however, despite undergoing that operation the plaintiff conceived and she gave birth to a female child on 7.4.1995.

According to the plaintiff she and her husband are not in a position to look after the new born child on account of poverty and already having five children; she has suffered mental agony and physical pain on account of negligence and carelessness on the part of defendant No.3, who had performed the tubectomy operation, which had failed. According to the plaintiff, she had served notices upon the defendants including one under Section 80 CPC before filing of the suit to make necessary payment but to no effect, as such, she filed the suit in question.

3. On being given notice of the suit, defendant Nos.1, 2 and 4 put in appearance, whereas defendant No.3 did not appear despite service, as such was proceeded against ex-parte.

Defendant Nos.1, 2 and 4 filed a joint written statement contesting the suit raising various legal objections, on merits contending that the plaintiff had given her consent on the application form before the operation was performed upon her, which was to the effect that in case of failure of the operation, the operating surgeon or hospital authorities would not be held responsible by the plaintiff or her relative; the defendants submitted that the plaintiff could have got her pregnancy terminated, when she came to know that she had conceived a child despite undergoing operation. Refuting the remaining assertions, the defendants prayed for dismissal of the suit.

4. The plaintiff had filed replication to the written statement controverting the allegations in the written statement whereas reiterating the averments in the plaint. On the pleadings of the parties, following issues were framed:

1. Whether the plaintiff is entitled for Rs.5 lacs with interest at the rate of Rs.2% as damages on account of failure of her family planning operation due to the fault of the respondents? OPP.

2. Whether the suit of the plaintiff is not maintainable in the present form? OPD.

3. Whether the plaintiff has no cause of action to file the present suit? OPD.

4. Whether the plaintiff has no locus standi to file the present suit? OPD.

5. Whether the suit of the plaintiff is estopped from for filing the present suit by his own act and conduct? OPD.

6. Relief.

5. The parties were afforded opportunities to lead evidence in support of their respective claims.

6. After hearing the learned counsel for the parties, the trial Court of Civil Judge (Sr.Divn.), Kaithal decided issue No.1 in favour of the plaintiff and against the defendants; issues No.2 to 5 were disposed of against the defendants. As a collective effect of finding on the issues, the trial Court vide judgment and decree dated 9.12.2003 decreed the suit of the plaintiff for damages to the tune of Rs.1,25,000/- with costs and interest at the rate of 12% per annum from the date of filing of the suit till its actual realization, payable by the defendants jointly and severally. The plaintiff, who had filed the suit as an indigent person was asked to affix ad valorem Court fees on Rs.1,