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10. The second defendant has been examined as D.W. 1; she has stated that she commenced the medical practice in the year 1957; she was the Professor and Head of Gynaecology, S.M.S. Medical College, Jaipur for sixteen years; she is qualified in M.B.B.S., M.S. and also got many diplomas from KEIL University, Germany and also possesses many medals; she was the Director of Endoscopy also covering U.P. Punjab and Haryana and trained in Laproscopy; she found that the second plaintiffs was a case of twisted overian cyst; it was an emergency operation and if delay occurred, it would have detached due to devascularisation which would lead to massive haemorrhage and ultimately cause death of the patient; this was explained to the second plaintiff; she had taken consent from the second plaintiff and then only consented to the operation; Ex. D. 1 is the consent given by the husband; she performed the operation on 29-9-1989; after opening the abdomen, she found that there was a cyst which was twisted twice on its pedical; she removed it which was on the right side and then, she found that tube and ovaries were making a mass which was very badly inflamed and Was attached to the posterior side of the uterus; if she had not operated it, that would lead to septicemia; consent was already given for any additional procedure or operation which was therapeutical in nature; hence, she removed it; after that, she found that the uterus was enlarged and contained multiple fibroids; uterus being reproductive organ had lost its productive function due to the removal of the ovaries on both sides; had she left the uterus, it would have led to any kind of degeneration more severely sacromatus, that is cancer which would have endangered the patient's life; as a senior doctor, it was her duty and hence, she called the person who had given consent and explained to him these matters and told him that since the overies had been removed, his wife would never beget any children in future and that if the uterus with multiple fibroids had been left, it would lead to another operation, because of sarcomatus in danger; nothing extra was charged for this extended operation; the first plaintiff told her that he left everything to her decision and that consent was already given; by removal of uterus, she had done nothing against law; second plaintiff was under her post-operative treatment for 11/2 months; but she (P.W. 1) had not questioned her as to why she has conducted such an operation. Further, she has stated that they clipped the tail with artery forceps and the tail will be left out from the abdomen and no heavy pieces will be left inside the abdomen; it is the duty of the senior nurses to count the number of sponges, instruments and all other things that are used for operation; before closing of the abdomen, it is the duty of the senior surgeon and the assistants to ask the senior nurse as to whether everything was O.K.; when the senior nurse replies in affirmative, then only, they close the abdomen; if a pad of that size is retained in abdomen for 11 months, it would have definitely lose its characteristic features; had she left the pad in the abdominal cavity by mistake, between 30 to 42 days; (1)1 the abdominal sutures would have burst; the counsel for the plaintiff objected to this question as that would be in the nature of opinion. (This objection is to be rejected as this witness has a right as well as competence to say this), (2) burst abdomen, septicemia and peritonitis would have set in and the abdominal and vaginal vault have burst. But nothing happened to the patient during this time, and there was nothing wrong. She was not negligent, in any manner; there was no negligence on the part of the defendants in performing the operation; second defendant is not liable to pay any amount; in the cross-examination, the has stated that after opening the abdomen, if she had found the ovary on the left side was normal, she would not have removed it; but she found the left side ovary was unhealthy and there was tub ovarian mass and hence, she had to remove it; she is not presently working in the first defendant hospital; she retired in the year 1990.

21. In the plaint itself, it is stated that the plaintiffs had left the matter to the "decision and discretion" of the second defendant (in para 9 of the plaint). D.W. 1 in her evidence has stated that, during the operation, she found there was a cyst which was twisted twice on its pedicle; she removed it which was on the right side and then, she found that tube and ovaries were making a mass which were very badly inflamed and was attached to the posterior side of the uterus; if she had not operated it, that would have led to septicenia; after that, she found that the uterus was enlarged and contained multiple fibroids; had she left the uterus, it would have led to any kind of degeneration more severely sacromatus that is cancer which would have endangered the patient's life; as a senior doctor, it was her duty and hence, she called the person who had given consent and explained to him these matters and told him that since the overies had been removed, his wife could never beget any children in future and that if the uterus with multiple fibroids had been left, that would have led to third operation, because of sarcomatous in danger; nothing extra was charged for this extended operation. In the cross-examination, D.W. 1 had stated that the removal of uterus was not contemplated prior to the surgery; but only during surgery, it was so decided. From this evidence, it appears that D.W. 1 did her duties in good faith as a dutiful surgeon. According to D.W. 1, if she had not removed the uterus, it would have necessitated another operation on P.W. 1 in future. The counsel for the defendants submitted rightly so, that when a surgeon find? it necessary during operatiqn to do certain things which had not been anticipated earlier, even in the absence of the consent by the parties concerned, the doctor is bound to do whatever necessary in that matter. In support of that argument, the counsel relies upon a judgment of the Kerala High Court in T.T. Thomas v. Elisa, where the Court has held as follows :