In negligence claims related to medical procedures, a successful operation without negligence does not result in liability for unforeseen pregnancies.

1. This appeal is preferred against judgment and decree dated 28.02.2004 passed by Second Additional District Judge (FTC), Korba (CG) in a Civil Suit No.1B / 2004 wherein the said Court decreed the suit filed by the respondent / plaintiff for compensation partially to the tune of Rs.78,000/- with interest.

2. The respondent / plaintiff preferred a suit for damages against the appellants / defendants to the tune of Rs.4,02,000/- on 23.7.1999. As per the respondent, the suit was to the effect that she got her Laparoscopic Tubectomy (Family Planning) operation conducted in the Primary Health Centre, Korba on 13.12.1991. It was stated that in the year 1998, the respondent / plaintiff was astonished to learn that she had again conceived in spite of her earlier operation as mentioned above and subsequently delivered a child on 30.7.1998. It was stated that the failure of her family planning operation was on account of negligence of the concerned doctor who had operated her. The appellants / defendants contested the claim on various grounds. The respondent / plaintiff filed cross - objection / appeal under O.41, R.22 of CPC for awarding the amount as per the claim in the suit filed before the trial Court.

3. Learned counsel for the appellants submits as under:

(i) There was absolutely no negligence in performing the operation but the trial Court has not appreciated the factum of negligence in its right perspective.

(ii) The trial Court failed to appreciate that operating doctor has specifically made a note that right fallopian tube of the respondent could not be properly blocked. Thus, she was supposed to take proper precaution .

(iii) The respondent was bound with her declaration and application which was signed by her after understanding the contents and later she could not be permitted to be wriggle out the same.

(iv) The respondent has been very well informed about the pros and cons including the failure rate of the Laparoscopic Tubectomy. Therefore, finding of the trial Court is liable to be set aside.

4. The first question for consideration before this Court is whether the doctor who conducted the operation of the respondent was negligent and there is failure of operation. In the matter of State of Punjab v. Shiv Ram and Ors. , reported in AIR 2005 SC 3280 it is held by the Hon'ble Apex Court that compensation can be awarded only if failure of operation is attributable to negligence of the doctor. Failure due to natural causes do not provide ground for claim.

5. In the present case, as per the version of the Dr. P.S. Sisodia (DW - 1), Dr. G.L. Wadhwani conducted the operation of the respondent on 13.12.1999 at Primary Health Centre, Korba. The said doctor has not been made party in the suit before the trial Court and he had no opportunity to explain about his conduct regarding the operation. The trial Court recorded a finding that it is not a case of negligence on the part of the doctor and it is also not a case of failure of operation. The trial Court recorded a finding that as per the document (Ex - D / 1) right fallopian tube of the respondent was thick that is why fallopian tube could not be blocked properly. But this fact was not informed by the doctor to the respondent. In the present case, the doctor who conducted the operation has not been made party and has not been provided opportunity to explain his conduct regarding operation. As per the version of Dr. P.S. Sisodia (DW - 1) in para 7 it was informed to the respondent that there is chances of conceiving even after operation and for that the Government is not responsible and the respondent gave consent for the said terms and conditions before t