Delhi District Court
Sh. Davender Yadav S/O Sh. Ram Lochan ... vs Union Of India Through Chief on 5 July, 2010
IN THE COURT OF SH. AJAY GOEL: SCJ CUM RC(CENTRAL):DELHI
S.NO. 857/06/95
Sh. Davender Yadav s/o Sh. Ram Lochan Yadav,
r/o 171, Mandir Wali Gali, Rampura, Delhi35
................... Plaintiff
VERSUS
1. Union of India through Chief
Secretary, Delhi Administration,
5Alipur Road, Delhi
2. Medical Superintendent
Sh. B.L. Kapoor
Memorial Hospital, Pusha Road,
Delhi.
............... Defendants
Date of filing:10.12.87
Date of assignment to this court: 17.2.09
Date of arguments:5.7.10
Date of decision:5.7.10
JUDGMENT
1. Vide this judgment I shall dispose off the instant suit filed by the Suit No. : 857/06/95 Page:1/11 plaintiff against the defendants sating that plaintiff was instigated by the Union of India through its representative Dr. Sudhir Kumar of B.L. Kapoor Memorial Hospital, Pusa Road, New Delhi to get sterilisation done. It was stated that as pr the instructions and directions of defendant no. 1 and 2 Dr. Sudhir Kumar insisted upon plaintiff that he would get the cash price and a certificate of sterilisation and accordingly plaintiff was strealised in B.L. Kapoor Memorial Hospital on 3.12.1983 and a certificate of strealisation was issued by Directorate of Family Welfare bearing no. 271043 dated 3.12.1983(Registration No. 4295/83). It was stated that after having strealisation wife of plaintiff became pregnant and two male children were born in between the year 19851986 whereas plaintiff was earlier having two issues i.e. one male child and one female child. The female child of plaintiff was a patient of polio and therefore the plaintiff decided to go for vascetomy operation to avoid the same to any further children and more so the plaintiff is more man and is having meager income of about Rs.1,000/ per month. As the plaintiff had Suit No. : 857/06/95 Page:2/11 already two children and his financial position was not good therefore he decided for steralisation, however when after strealisation he got two more male children he got puzzled and approached the defendant no. 1 but defendant no. 1 did not entertain the plaintiff. Thereafter plaintiff approached ESI Hospital where his check up was done and he was issued a certificate of vascetomy failure vide DPDNO. 1905/87 dated 9.4.87. It was stated that the plaintiff had suffered an irreparable loss and injury by means of mental agony and physical weakness and also great financial crisis. Rs.1,00,000 was assessed as rough estimated value for the maintenance of his two unwanted children who were born due to gross negligence of defendant no. 1 and 2. It was stated that defendant no. 1 and 2 are liable to pay the compensation as damages to the plaintiff and his family members and it was accordingly prayed that a decree in favour of plaintiff and against the defendants be passed for a sum of Rs.1,00,000/.
2. Both the defendants did not appear in the matter despite service and were Suit No. : 857/06/95 Page:3/11 proceeded exparte vide order dated 29.2.88 and 20.5.88. However ex parte order against defendant no. 2 was set aside vide order dated 16.8.88.
3. Written Statement was filed on behalf of defendants no. 2 wherein preliminary objections were raised stating that plaintiff has no cause of action to file the present suit, suit is bad for nonjoinder of necessary parties and the suit of the plaintiff is incompetent and is based on vague and indefinite and uncertain pleas. It was stated denied that Dr. Sudhir Kumar insisted the plaintiff that he would get cash price or certificate of sterlization. It was submitted that the performance of sterlisation operation was successfully performed on the plaintiff by able and competent doctor under the directives of Government of India as well as Directorate of Family welfare and there was no negligence on the part of the doctor in performing the said sterlization. It was also submitted that even if this sterlization operation has not been performed by the doctors of eminence and with all care and precautions even then there can be Suit No. : 857/06/95 Page:4/11 chance of failure of sterlisation operation and on such failure the doctors of the hospital cannot be held responsible. Rest of the contentions were denied and it was prayed that the suit of the plaintiff be dismissed.
4. Replication to the Written Statement of defendant no. 2 was also filed in which the contents of the plaint were reiterated and those of the Written Statement were denied.
5. From the pleadings of the parties following issues were framed vide order dated 27.9.88:
1) Whether the petitioner is an indigent person and if so to what effect?
2) Relief.
This issue was decided by my Ld. Predecessor vide order dated 22.2.92 and the plaintiff was held to be indigent person.
6. On the merits and pleadings of the parties following issues were framed vide order dated 15.4.93: Suit No. : 857/06/95 Page:5/11
1)Whether the petitioner is entitled to the damages as claimed?OPP
2) Relief.
7. Following additional issues were framed vide order dated 8.10.93 :
3) Whether the suit of the plaintiff is liable to be rejected as per order 7 Rule 11 of CPC?OPD
4) Whether the suit is bad for misjoinder of parties?OPD
5) Whether the sterlisation operation performed on the plaintiff turned out to be by the plaintiff?OPD
8. Defendant no. 2 was again proceeded exparte on 24.11.93 which order was set aside vide order dated 18.9.96.
9. Issue no. 3 was reframed vide order dated 6.10.05 as follows:
1) Whether the sterlisation operation performed on the plaintiff turned out to be failure as alleged by plaintiff?OPP
10. Now I am arranging as follows the issues as per orders dated 8.10.93, 15.4.93 and 6.10.05 for the sake of convenience:
1) Whether the petitioner is entitled to the damages as claimed?OPP
2) Whether the suit of the plaintiff is liable to be rejected as per order 7 Rule 11 of CPC?OPD
3)Whether the suit is bad for misjoinder of parties?OPD
4) Whether the sterlisation operation performed on the plaintiff turned out to be failure as alleged by plaintiff?OPP
5) Relief.
Suit No. : 857/06/95 Page:6/11
11.Plaintiff examined himself as PW1, Sh. Ram Thirath as PW2
12.Defendant no. 2 in support of its case examined DW1D.S. Bhasin. Affidavit of one witness i.e. Dr. K. K. Saharan was placed on record, however the said witness failed to appear in witness box and as defendant failed to lead DE and according the same was closed vide order dated 22.2.06.
13. I have heard Ld. Cl. for plaintiff and Ld. Cl. for defendant no. 1 as well as perused the record. My issuewise findings are as follows:
14. Issues no. 1 and 4: Whether the petitioner is entitled to the damages as claimed?OPP & Whether the sterlisation operation performed on the plaintiff turned out to be failure as alleged by plaintiff?OPP : Both these issues are taken up together. Presumption u/s 112 of Indian Evidence Act is attached to the birth of both the children as the children were born out of the wed lock of plaintiff and his wife. Defendants have mentioned in their Written Statement in para no. 4 that it is denied that wife of the plaintiff became pregnant from the plaintiff and plaintiff is Suit No. : 857/06/95 Page:7/11 required to give strict proof thereof which certainly amount to casting remarks on the chastity of the wife of the plaintiff and it is not expected from the concerned department to write or use such aspersions for the concerned lady. The operation is not denied. It is also not disputed that the plaintiff was sexually active. The birth of two children is also duly proved by PW2. DW1 has admitted that the operation was conducted and rather stated that various studies indicate that operation is not 100% successful and operation may be repeated on failure. Thus, in these circumstances, this issue that sterilisation operation was performed on the plaintiff turned out to be a failure is duly proved and now it has to be seen whether the plaintiff is entitled for the damages as claimed. The claim of damages of plaintiff is to be dealt by considering the fact that when the plaintiff was aware of the birth of first child after sterilisation then he should be more vigilant and should have taken steps to prevent the second child, hence his case for damages for the birth of second child after sterilisation is dismissed on this ground itself because he cannot Suit No. : 857/06/95 Page:8/11 take benefit of his own negligence. As far as damages for first child is concerned even though his wife had become pregnant but he could have taken early steps to abort the said child if he did not want any child, however he remained active for the delivery throughout the period whereas he could be vigilant so that the birth could not have taken place. As far as token damages for failure of operation is concerned, same can be granted to the plaintiff as it has come on the record that the birth of child has taken place and he had become laughing stock and had to incur expenses even for the termination of the pregnancy. Keeping in view the same, I hereby award damages to the tune of Rs.10,000/ alongwith interest at the rate of 8% p.a from the date of filing of the suit till realisation and rest of the claims for damages are hereby rejected. It is made clear that this is token amount for the negligence and failure of the defendant no. 2. Accordingly these issues are decided in favour of the plaintiff and against the defendants.
15. Issue no. 2: Whether the suit of the plaintiff is liable to be rejected as Suit No. : 857/06/95 Page:9/11 per order 7 Rule 11 of CPC?OPD : The onus of proving this issue was on defendants, however no evidence has been lead to prove the same and accordingly this issue is decided in favour of the plaintiff and against the defendants.
: Whether the suit is bad for misjoinder of parties?OPD :
16.Issue no. 3 It is not made out as to how the suit is bad for misjoinder of parties. The parties mentioned in the corresponding para of the Written Statement are not required for the decision of the case. Union of India as well as concerned hospital are parties to the suit and Directorate of Family Welfare is not required to be impleaded. Hence this issue is decided in favour of the plaintiff and against the defendants.
: In view of the observations on issue no. 1 and 4 suit of the
17.Relief plaintiff is decreed in favour of plaintiff and against the defendants and award damages to the tune of Rs.10,000/ alongwith interest at the rate of 8% p.a from the date of filing of the suit till realisation payable by defendants jointly and severally which is token amount for the negligence Suit No. : 857/06/95 Page:10/11 and failure of the defendant no. 2 and rest of the claims for damages are hereby rejected. Decree sheet be prepared. File be consigned to record room.
Announced in open court (Ajay Goel) on 5.7.10 SCJ cum RC(Central)/Delhi Suit No. : 857/06/95 Page:11/11