A plaintiff must prove negligence to claim compensation for failed sterilization, and an untimely suit may be barred by limitation.

1. By filing the first appeal under S.96 of the Code of Civil Procedure, 1908 (for short 'the Code' ), the appellants have challenged the legality and propriety of judgment and decree dated 27.02.2003 whereby and wherein the learned Additional District Judge, Korba, has decreed the suit filed by respondent No. 1 / plaintiff against the present appellants and ordered that the present appellants shall pay respondent / plaintiff an amount of Rs.2 lakh as compensation along with interest and cost of the suit. As per para 21 of the Judgment and decree, the appellants deposited Rs.1,00,000/- on 10.6.2003 and cost of the suit on 17.6.2003.

2. Brief facts of the civil suit filed by respondent No. 1 / plaintiff are that on 09.01.1986 respondent No.1 underwent sterilization operation in a camp conducted at NTPC Hospital Dari. Thereafter on 16.8.1987 despite the said laparoscopic tubectomy, respondent No.1 gave birth to a female child Neera and thereafter on 07.02.93 another male child Shiv Kumar was born. Respondent No.1 preferred a suit before the District Consumer Forum. The said Forum vide order dated 13.10.97 directed respondent No.1 / plaintiff to file a civil suit. Thereafter on 06.8.98 respondent No.1 / plaintiff filed a civil suit for compensation. The said Civil Suit No.5B / 2002 was disposed of by the Court below after affording opportunity to the parties by adducing their pleadings, after formulations of issues, evidence and vide judgment and decree dated 27.02.2003 directed the appellants / defendants 1 & 2 to pay an amount of Rs. 02 lakh as compensation to the plaintiff / respondent No.1 along with interest and the cost of the suit. Against the said judgment both the appellants preferred the instant appeal.

3. Grounds taken by the appellants are that the plaintiff had filed the suit 11 years after the birth of first female child and five years after the birth of second male child. Husband of respondent No.1 died during the pendency of the suit. The plaintiff has not disclosed when she preferred the suit for compensation before the Consumer Forum and if for the moment, it is assumed that the suit before the Consumer Forum was filed in the year 1997 even then as the suit filed before the Court below on 06.8.98 was barred by limitation as respondent No.1 had taken the wrong forum and had not filed civil suit for compensation within three years of birth of her first child on 16.8.87. Further ground taken that even after the birth of first female child, respondent No.1 was aware of the alleged failure of said operation, with this, for the compensation for second male child the appellants are not responsible. Even if the operation became failure due to natural causes, respondent No.1 should have consulted a doctor after missing of her menstrual cycle for medical advise regarding termination of pregnancy if they do not want the birth of the said child. It is further taken a ground that the plaintiff / respondent No.1 examined four witnesses but had not examined any doctor to demonstrate the negligent act of the doctor who conducted the said operation and as the negligent act of such doctor is not proved, the Court below erred in decreeing the suit against the appellants.

4. I have heard learned counsel for the appellants and perused the record of Court below including the impugned judgment and decree.

5. Learned counsel for the appellants vehemently argued that as respondent No.1 has utterly failed to prove the negligent act of respondent No.2, the appellants are not responsible to pay the compensation. Moreover, respondent No.1 filed the suit barred by limitation. Even respondent No.1 had not visited the doctor immediately after stopping of her menstrual cycle, after the said operation, for termination of the pregnancy under the Medical