Kerala High Court
Smt.Janaki vs Dr.Vasantha R on 30 June, 1999
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
MONDAY, THE 5TH DAY OF MARCH 2018 / 14TH PHALGUNA, 1939
AS.No. 114 of 2003
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AGAINST THE JUDGMENT IN OS 52/1992 OF SUB COURT, MANJERI
DATED 30-06-1999
APPELLANTS/PLAINTIFFS:
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1. SMT.JANAKI, W/O.VIJAYAN,
AGED 41 YEARS, MUTHALODY PURAYA HOUSE,, CHAKKUMMAD,
CHELEMBRA, MALAPPURAM DISTRICT,, CHELEMBRA AMSOM.
2. SHRI VIJAYAN, S/O. GOPALAN,
AGED 45 YEARS, MUTHALODY PURAYA HOUSE,, CHAKKUMMAD,
CHELEMBRA, CHELEMBRA AMSOM IN ERNAD TALUK,
MALAPPURAM DISTRICT.
BY ADVS.SRI.JACOB ABRAHAM
SRI.JACOB ABRAHAM
RESPONDENTS/DEFENDANTS:
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1. DR.VASANTHA R,GANGULI,
SUSURUSHA NURSING HOME HUBLI, KARNATAKA.
2. MEDICAL OFFICER, PRIMARY HEALTH CENTRE,
KONDOTTY.
3. DIRECTOR OF HEALTH SERVICES,
THIRUVANANTHAPURAM.
4. STATE OF KEALA REPRESENTED BY DISTRICT
COLLECTOR, MALAPPURAM.
R1-4 BY ADV. GOVERNMENT PLEADER (BY ORDER)
SRI.SYAMJIRAM
THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 05-03-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.ABRAHAM MATHEW, J.
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A.S.No.114 of 2003
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Dated this the 5th day of March, 2018
JUDGMENT
The appellant whose suit for compensation has been dismissed by the trial court is the appellant. The respondents were the defendants. The first respondent was a doctor in the employment of the 4 th respondent State of Kerala.
2. The government advised people to resort to laproscopic sterilization representing that it was a fault free and foolproof. Believing this representation, at the camp held on 21.7.1988 at a Primary Health Centre, the appellant underwent laproscopic sterilization surgery. But she conceived a child, who was born on 8.7.1989. The surgery was a failure. It was due to the negligence of the first respondent who conducted the surgery the sterilization failed. On these allegations the appellant prayed for Rs.1,15,000/- as compensation with interest at 12% per annum. The first respondent filed a written statement and the other defendants a joint written statement. They denied that they made a representation that the surgery would be successful. They also denied A.S.No.114 of 2003 2 there was negligence on the part of the first respondent. The trial court found that the appellant failed to adduce evidence to prove negligence on the part of the first respondent and accordingly dismissed the suit. This is challenged in this appeal.
3. Heard the learned counsel for the appellant and the learned Government Pleader.
4. It is not in dispute that the foundation of the appellant's claim is negligence of the first respondent in conducting the surgery and she has failed to adduce evidence to prove it. Learned counsel for the appellant submits that even in the absence of proof of negligence the appellant is entitled to compensation, for which he relies on the decision of a division bench of this court in State of Kerala v. Santa and Others (2015 (1) KLJ 509).
5. In Santa's case the court accepted the plaintiff's case that the government assured b