The main legal point established in the judgment is that proof of negligence is essential to award compensation in cases of medical malpractice, and the mere failure of a sterilization operation does not automatically establish negligence.

Arun Mishra, J.

1. This appeal has been preferred by the unsuccessful plaintiff aggrieved by judgment and decree dated 2-9-2004 passed by Fourth Additional District Judge, Hoshangabad in Civil Suit No. 8-B/02 dismissing the suit filed for the purpose of claiming compensation of Rs. Ten Lakhs on account of failure of vasectomy operation performed on her husband Rajaram resulting into birth of a child.

2. Plaintiff Smt. Asha Devi filed a suit on 31-7-1999 as an indigent person claiming compensation of Rs. Ten Lakhs. It was averred that Rajaram husband of the plaintiff had undergone vasectomy on 7-11-1994 in the Hospital run by Central Railway at Itarsi. Plaintiffs husband was an employee of Railways. A notice was served under Section 80 of Code of Civil Procedure claiming compensation of Rs. Five Lakhs as a son was born on 15-11-1998 after four years due to failure of vasectomy. Husband of the plaintiff was a Peon, unable to bear the expenses of two daughters born to them, and thus underwent vasectomy on 7-11-1994 after birth of second daughter. He was assured by the Doctor that he would not have any further child, however, plaintiff became pregnant and delivered a third child. She had to undergo mental pain and suffering of pregnancy. She was looked after in the society with doubt. A Green Card was issued to her husband. When plaintiff and her husband contacted the Defendant No. 3 Medical Officer, they were informed that there was possibility of failure of sterilization operation, they could not help them and if plaintiffs husband desired, he could undergo fresh vasectomy, consequently the suit was filed.

3. The defendants in the written statement denied the averments made in the plaint and contended that plaintiffs husband failed to carry out the instructions to ensure that surgery became successful. No guarantee was given by the Doctor that surgery would be successful. There was no negligence on the part of the Doctor in performing surgery. As per medical science there was possibility of reunion of vass difference. It was also possible that the person may have two vass differences due to that there was possibility of becoming pregnant. After about four years wife became pregnant, indicated the fact that operation was not a failure. Surgery was done under the welfare scheme run by Government in the public interest. As an exception it was possible that vasectomy could have been a failure as such defendants were not liable to make payment of compensation. Objection as to jurisdiction of the Court and suit being time barred, were also raised.

4. After recording the evidence, the trial Court as per impugned judgment and decree has found that negligence of the Surgeon who performed vasectomy had not been established. defendants failed to establish that plaintiffs husband did not take the care to ensure that surgery was successful. Suit has been held to be within limitation. Plaintiffs suit has been dismissed; consequently, this appeal has been preferred.

5. It was submitted by Ms. Jailaxmi Aiyer, learned counsel appearing for the appellant that whatever precautions were told to be observed, they were duly observed by the plaintiffs husband. It was not advised that husband should undergo sperm count test to know whether surgery was successful or not. When child was born such a test was performed and it was found that surgery was a failure. It was a case of negligence on the part of Dr. Karmarkar, who performed vasectomy. She has submitted that till the child becomes able to earn, respondents be directed to bear the expenses of bearing and education. She has relied upon decision of Apex Court in State of Haryana and Ors. v. Smt. Santra, AIR 2000 SC 1888, decision of this Court in State of M. P. and Ors. v. Asharam, 1996 JU 630 and Sobhag Mai Jain v. State of Rajasthan and others, AIR 2006 Raj 66.

6. Shri Rajneesh Jain, learned counsel appearing for respondents has submitted that negligence of Doctor has not been established. There