JUDGMENT

1. Appellants/defendants have filed the present appeal being aggrieved by the judgment and decree dated 10.9.2001 passed by District Judge, Shajapur in Civil Suit No.3-B/2001 whereby a decree of Rs.1,64,000/- has been granted in favour of the respondent/plaintiff.

Facts of the case in short are as under :

2. Plaintiff filed a suit for damages of Rs.5 lacs. According to the plaintiff she is a resident of Gram Maksi, district Shajapur. She was married to Nemichand Chouksey in the year 1990 and thereafter gave birth to two daughters and one son aged 7 years, 4 years & 2 years respectively. Thereafter she decided to undergo sterilization operation. The State Govt. through Health Department organized a camp for conducting the sterilization operation in the Primary Health Centre, Maksi. The respondent got operated on 12.12.1998 by defendant No. 2. According to the plaintiff the operation was not successful and immediately after the operation she became ill, suffered weakness, blood pressure etc. and on 26.1.2000 she gave birth to a male child. She has undergone mental as well as physical agony. She was assured that after the T.T operation she would not be pregnant. She pleaded that the defendant No. 2 did not operate her properly and because of which she has suffered mental and physical agony. She further pleaded that now she is required to spend lot of money for education of the fourth child. Accordingly, she claimed Rs.4 lakhs and Rs.1 lakh for mental and physical agony. She gave a notice under section 80 on 18.2.2000 and when compensation was not paid to her she filed a civil suit on 8.5.2000 before the Additional District Judge, Shajapur.

3. After the notice, defendants filed written statement by submitting that the plaintiff was operated in the camp on 2.12.1998 but denied the allegation that the operation was not successful. They further pleaded that the plaintiff was informed that there is no 100% success rate of this operation and after the operation there is a possibility of pregnancy at the rate of 8%. It is further submitted that the plaintiff did not follow treatment as she had an occasion to go for abortion but continued with the pregnancy up to nine months and after giving birth to the child she is claiming compensation.

4. On the basis of pleadings, trial Court framed 5 issues for adjudication. Plaintiff examined herself as PW1, Nemichand as PW2 and Nand Kishore as PW3. The plaintiff got exhibited notice dated 18.2.2000 as ExP/1, acknowledgment as Ex.P/2 & P/3, certificate of operation dated 12.12.1998 as Ex.P/4 and birth certificate as Ex.P/5. In the cross examination of the plaintiff, defendant has tendered the form and consent letter signed by the plaintiff and the Court has marked it as Ex.D/1.

5. After appreciating the evidence came on record vide judgment and decree dated 10.9.2011 learned District judge has decreed the suit in favour of the plaintiff by directing the defendants to pay Rs.1,64,000/- as compensation to the plaintiff along with interest at the rate of 12%.

6. Being aggrieved by the aforesaid judgment, defendants preferred this appeal. This Court while admitting the appeal has declined to grant stay of execution of the impugned judgment and decree.

7. Learned counsel for the appellants submits that the plaintiff has admitted her signature in the consent form in which it is clearly mentioned that there is no guarantee of 100% success of the operation and in case of failure of the operation, the hospital or the surgeon cannot be held responsible. The sterilization operation has been done by the State Govt. free of cost in order to control population of the country. There was no compulsion for undergoing the operation but it was in the interest of the nation. At the time of operation it has been made clear that this is an effort to prevent pregnancy and there is a possibility of failure of the operation. Learned District Judge has wrongly granted compensation on exterior consideration. He has u