R.K. Varma, J.
1. This is an appeal filed by the plaintiff Satish Chandra Shukla through his next friend and father Pt. Ramchandra Shukla against the judgment and decree dated 7th August, 1980 passed by the Additional District Judge, Ratlam dismissing the plaintiff's Civil Suit No. 3-A/79 for damages.
2. The suit for damages was filed by the plaintiff on the allegation that be was of unsound mind and that he was operated upon for sterilisation on 22nd December, 1976 in Civil Hospital, Ratlam by the defendant No. 4 Dr. V.S. Jain, Asstt. Surgeon on the basis of a declaration form (Ex. P/19) which was not executed by the defendant Nurse No. 5 Sheela Narval and the defendant No. 6 Smt. Shaheeda Sultan, a School Teacher acting as a motivator. The defendant No. 3 Dr. Indrajit Singh Chaudhary was the Medical Officer in-charge of Family Planning Centre, who, it is alleged was supposed to see that no excesses were committed by the subordinates in the Family Planning Programme. The defendant No. 1 Union of India and the defendant No. 2 the State of Madhya Pradesh are also joined as defendants being responsible in carrying at the Family Planning Centre where the defendant Nos. 3, 4 and 3 were employed.
3. The plaintiff alleged that he was unmarried and a wrong has been committed in performing Vasectomy (V.T.) Operation on him. The plaintiff was mentally underdeveloped. The Asstt. Surgeon defendant No. 4 who operated upon him was grossly negligent in not examining the plaintiff's mental development and operating upon him on his so called consent which was no consent in law as the plaintiff was not capable of giving any intelligent consent.
4. It is an admitted position that the sterilisation operation was performed by the Asstt. Surgeon defendant No. 4 on the basis of the declaration (Ex. P/19-c) signed by the plaintiff where under the plaintiff's age was stated to be 32 years and he was stated to be having two female children. The place of residence of the plaintiff, however, had been shown as Mabidpur, District Ujjain whereas in fact the plaintiff was a resident of Ratlam.
5. The basis for the claim of damages which the plaintiff had pleaded is that on account of the operation of vasectomy performed on the plaintiff, he has been rendered unfit for marriage and is deprived of all the advantages which he would have had on being married. The plaintiff has filed a suit as an indigent person and has laid a claim of damages to the tune of Rs. 1.25,000/- alleging that the defendant Nos. 1 and 2 are vicariously liable for the wrongful and negligent act of the defendant No. 4 in performing operation of vasectomy upon the plaintiff who was an unmaried person. It has, however, not been pleaded with any clarity or particular that the plaintiff was subjected to operation by practising fraud or misrepresentation or by using undue influence or any coercive method.
6. The defendants have denied any negligence on their part and have denied the plaintiff's claim for damages. The defendants, in their written-statement, have inter alia denied that the defendant No. 3 who was in-charge of the concerned Family Planning Centre since 1975, has been indifferent to his duties or that this department had committed any excesses. However, it has been admitted in para 7 of the written-statement that the plaintiff was insane, but it was stated that his insanity was not of the kind that the plaintiff could not understand whether a thing was to his advantage or not. It is stated that the plaintiff could be mentally under-developed, but he was not mad either immediately before or after the operation.
7. After full trial of the suit, the trial Court has held that the plaintiff was operated upon for V.T. on 22nd December, 1976 and that it was not proved that the defendant No. 3 was negligent in performance of his duties because of which the plaintiff was operated upon. It was also held not proved that the defendant Nos. 4, 5 & 6 were negligent in not examining the plaintiff's under-development of mind before the operation or at the time of filling in the declaration form signed by him. The issue whether the plaintiff's mind was not fully developed because of which he was not competent to understand what was to his benefit, was also held not proved by the learned Trial Court. All other material issues raised on the basis of plaint-averments went also held not proved. The plaintiff's suit has, consequently been dismissed.
8. Being aggrieved by the judgment and decree of the Trial Court of the 1st Additional District Judge, Ratlam, the plaintiff has filed this appeal.
9. The learned Counsel for the appellant has urged that in the instant case tort has been committed against the plaintiff, who being mentally underdeveloped, and incapable of managing his own affairs, was operated upon for vasectomy although he was not married and had no children. The plaintiff was sterilized without the motivator varifying as a prudent and reasonable person whether or not the plaintiff was married and had to children as stated by him in the declaration signed by him. The motivatory Shaheeda Sultan, a teacher of Kanya Pathshala, village Taal in Ratlam District having not been examined though present in Court, an adverse inference should have been drawn against her. Llearned Counsel has argued that by the V.T. Operation performed on the plaintiff, he has been deprived of the opportunity of marrying and consequently making his future life happy and secure.
10. It is not complained that the instant case was one of subjecting the plaintiff to operation forcibly. No grievance is also made on the count of skill or care by the doctor in the performance of operation, nor any negligence is complained of at the post operation stage. The main grievance which gives rise to the plaintiff's claim for damages is that the fact of operating the plaintiff who was unmarried and was of unsound mind. The learned Counsel for the appellant has urged that the very fact that an unmarried person of unsound mind which the plaintiff is, has been operated upon for sterilization, itself shows that the act of negligence has been committed. The doctrine of res-ipsa loquitur [sic] applies. The declaration by the plaintiff that he was married and had two children which he had apparently signed is of no consequence, he being of unsound mind. Obviously in the instant case the fact of any under-development of kind or mental ailment of the plaintiff remained undetected at the time he approached the doctor for V.T. operation. Admittedly the plaintiff had not complained of any mental ailment to the doctor.
11. It is the case of the defendant-respondents that the plaintiff's unsoundness of mind was not such that he could not understand what was beneficial to his interest and further that the plaintiff was not mad either immediately before or after the operation. When we come to discuss the evidence adduced in the case, we would see that the evidence on record does not bear out that the under-development or the unsoundness of mind of the plaintiff could be apparent from his behaviour or talk with concerned persons in the hospital so as to be detected by a reasonable and prudent person exercising reasonable care. It is not the case of the plaintiff that be or any one had made a mention about his mental ailment to the doctor or to any one of the concerned persons when he had been to the hospital for V.T. operation.
12. The father-guardian-next friend of the plaintiff has also not got him examined by any medical expert in spite of the suggestion by the Court so as to assess the degree of unsoundness of mind which would have thrown light whether the deficiency in the mental development of the plaintiff was capable of being notice or detected by the defendants as prudent and reasonable persons. The plaintiff had approached the defendants for getting himself operated for vasectomy and not for getting himself examined by for any mental ailment. There is nothing to show on record that from the plaintiff's conduct or behaviour or talks any deficiency in his mental development could be known to the defendants so as to call for a decision not to operate upon him.
13. On the contrary, there is enough evidence to show that the plaintiff had shown understanding of his interest and the questions put to him. The plaintiff has been examined in this case as PW-8. The learned Trial Court of the Additional District Judge, Ratlam, put to the plaintiff a number of questions and recorded answers to the questions given by him. He then found that having regard to the questions put to the plaintiff and the answers given by him, he had the competency to make statement as a witness, and therefore, he after recording this fact examined the plaintiff. Among the other witnesses examined in this case are the plaintiff's employer, the plaintiff's father, the defendant Nurse and the operating doctor. A persual of the statement of these witnesses, as we would presently see, leads us to the conclusion that the plaintiff has utterly failed to establish a case of tort against the defendants.
14. The plaintiff Satishchandra (PW-8) has stated in his evidence that he had gone to the hospital for vasectomy for the sake of getting some money awardable to one undergoing the operation He has stated that a policeman had given him the information that the plaintiff can get Rs. 55/- for getting himself operated and Rs. 10/- for expenses. The policeman had also accompanied him to the hospital. The concerned policeman is, however, not in the array of the defendants. The plaintiff has stated that the policeman took him to the Nurse-defendant No. 5, a lady helath visitor in the Government Civil Hospital. In his cross-examination (paras 12 and 23 of the statement), the plaintiff has stated that between the policeman and himself, he had decided to get himself operated for vasectomy two days before the date of operation and that he had shaven his public hair before going to the hospital. It appears from the circumstances that the real motivator for the operation was the policeman and not the teacher Shaheeda Sultan (defendant No. 6) who apparently acted as the formal motivator on record. The plaintiff has stated that he had gone of his own for the operation and nobody had forced or influenced him in this respect. The plaintiff has also stated that he had told the Nurse that he had a wife and two children and the said information was recorded by the Nurse on the requisite form (Ex. P/19) on which he affixed his thumb mark. He has stated that he gave information to the Nurse about his place of residence as Mahidpur.
15. The plaintiff is said to be a resident of Ratlam, but he deliberately stated his place of residence as Mahidpur which has been so recorded in the declaration form (Ex. P/19) given in the hospital. The plaintiff has tried to show his connection with Mahidpur and stated in para 9 of his statement that be had married at Mahidpur quietly where two daughters were born to him. He has given the reason why be on his own underwent the operation. The reason stated by him. is that he was short of money and that his father did not give him money for expenses. The plaintiff has further stated that his father had not got him married, and therefore, he himself got married. It appears that this latter part of his statement about marital status is untrue and he appears to have made that statement apparently in his anxiety to maintain consistency in his statement in Court and his declaration entered in form (Ex. P/19) which was filled in on his instructions in the hospital before undergoing V.T. operation.
16. The plaintiff's statement in evidence is sot characterised by any general incoherence suggestive of insanity. The under-development of the plaintiff's mind even if it be there, appears to be latent and not patent so as to be noticed by the defendants as reasonable and prudent person in a short meeting of the plaintiff with the defendants Nurse and the doctor who talked to him when the plaintiff approached them for V.T. operation.
17. The plaintiff is an illiterate person and works as a labourer at the residence of one Band-Master Adbul Rahuf (PW-5) for the last 15 or 16 years as has been stated by this witness (PW-5). In para 10 of his statement this witness has stated that he makes the payment of wages at times to the plaintiff himself and at other times he sends the payment to the plaintiff at his residence. About the mental development of the plaintiff, this witness has stated that the plaintiff cannot think with coherence and that he was illiterate. He has also stated that the plaintiff was simple by nature and was of quiet mind. The plaintiff cannot think of harming others. The plaintiff was not mad so as to tear clothes or utter abuses. He understands everything. He understands who are his well-wishers, relatives and his near-ones.
18. The plaintiff's father Pt. Ramchandra Shukla who is the next friend of the plaintiff in the present suit, has examined himself as (PW-2). He has stated that he had got the plaintiff medically examined by Dr. Mukherjee when the plaintiff was about two years old and Dr. Mukherjee had then opined that the plaintiff's mental development would not be to full extent. In the cross-examination at para 15 of his statement, the witness has stated that he did not get the plaintiff examined for his mental under-development in any mental hospital and that he did not obtain any certificate from an expert of mental diseases. Further, in para 16, he has stated that he had carried out the treatment of Dr. Mukherjee for 20 days. He has also stated that he did not get the plaintiff admitted in any school. He did not get the plaintiff examined to find whether or not the plaintiff was fit in writing or reading and that he had him self tested the plaintiff. The witness has stated that the plaintiff is not mad. In para 29 of his statement, he has stated that there had been offers of marriage of the plaintiff. The offers had come in the years 1973, 1975 and 1977, but be did not get the plaintiff married because his mind was under-developed. In para 22 of his statement, the witness has stated that he did not try to get the plaintiff examined by any psychiatrist. He has stated that he was given advice for rechannelisation, but he did not get it done in the case of the plaintiff.
19. The defendant Sheela Narwal who has been examined as DW-1 has stated that the form (Ex. P/19) was filled in by her and the entries were made as per the information given by the plaintiff. At the time of recording the information given by the plaintiff, she did not find any such abnormality from which it could be known that the plaintiff was not of sound mind. Similarly Dr. V.S. Jain-defendant No. 4 as DW-2 has also stated that he had satisfied himself by confirming the information entered in the declaration form (Ex. P/19). He has also stated that at the time of operation, the plaintiff appeared to be a normal person and had shown no sign of unsoundness of mind.
20. From the evidence on record as briefly referred to above, it could not be reasonably expected that the doctor (defendant No. 4) or Nurse (defendant No. 5) or even the motivator (defendant No. 3 even though she has not been examined), could have known or discovered as reasonable and prudent person that the plaintiff had suffered from any mental disorder or deficiency. We are, therefore, of opinion that no negligence can be attributed to the defendants in not noticing or detecting that at the time of operation the plaintiff's mind was not fully developed and we concur with the finding of the learned Trial Court that the negligence on the part of the defendants is not proved so as to give rise to any tort' or claim for damages.
21. The learned Trial Court in para 22 of the judgment has mentioned the fact that the defendants had made an application for getting the plaintiff medically examined for his mental underdevelopment. But the plaintiff's next friend-father refused to get the plaintiff examined. Consequently, it could not be established as to what degree the plaintiff was suffering from. For this reason also, the learned Trial Court has held and in our opinion rightly so, that no negligence could be held proved because of the V.T. operation performed on the plaintiff.
22. In the absence of proof of negligence, there remains no basis for the claim of damages and this appeal is consequently liable to be dismissed.
23. Apart from this, there is one important aspect in this case. If the plaintiff is of unsound mind, it is quite natural that plaintiff's father-next friend would not like to get him married advisedly. The plaintiff's father is an advocate and it can be presumed that he is aware of the provisions of the Hindu Marriage Act which provide for consequence of unsoundness of mind on the validity of marriage. Even if a person is married an action for divorce can also be brought against him, if he is of unsound mind. The statement of the plaintiff's father (PW-2) to the effect that he did not get the plaintiff married inspite of offers assumes importance in this context. Although the plaintiff's father has complained against the V.T. operation performed at the instance of the plaintiff himself as wrongful, he did not get the plaintiff operated for rechannelisation deliberately. The damages have been claimed by the plaintiff because it is alleged that the V.T. operation performed on him has eliminated the prospects of his marriage and consequent security of life. The father-next friend of the plaintiff has urged that if the plaintiff had not been sterilized by operation, he would have got married and his wife would have looked after him which would have given him security for his life. It is a very remote and doubtful proposition that any normal and competent woman would have come forward to marry knowingly a person of unsound mind. It is, however, possible for a guardian to marry a person of unsound mind, but that possibility can be conceived only if the fact of unsoundness of kind of the plaintiff were to be fraudulently concealed by his guardian and the girl's party were to remain in dark about the truth. But such a possibility cannot form the basis of a claim for damages. From this viewed point also, the suit is liable to be dismissed.
24. In veiw of the discussion as aforesaid, this appeal fails and is hereby dismissed. There shall, however, be no order as to the costs of this appeal.