Rajasthan High Court - Jodhpur
Smt. Shyama Devi @ Samu Kanwar &Anr; vs State & Ors on 23 September, 2016
Author: Sangeet Lodha
Bench: Sangeet Lodha
CIVIL WRIT (CW) No.7451 of 2008
Smt. Shyama Devi @ Samu Kanwar & anr.
vs.
The State of Rajathan & Ors.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
--------------------------------------------------------------
CIVIL WRIT (CW) No.7451 of 2008 PETITIONERS
1.Smt. Shyama Devi @ Samu Kanwar W/o Shri Sumer Singh, aged 34 years, R/o Village and Post Kherapa, Tehsil Bhopalgarh, District Jodhpur.
2.Shri Sumer Singh S/o Shri Bahadur Singh, aged about 37 years, R/o Village and Post Kherapa, Tehsil Bhopalgarh, District Jodhpur.
Versus RESPONDENTS:
1.The State of Rajathan, through the Principal Secretary, Department of Medical and Health, Government of Rajathan, Secretariat, Jaipur.
2.The Director Medical and Health, Jaipur.
3.The Chief Medical and Health Officer, Jodhpur.
4.The Additional Chief Medical and Health Officer, Bhopalgarh.
Date of Order: 23.9.2016 HON'BLE MR.SANGEET LODHA,J.
Mr. Hemant Dutt, for the Petitioners. None present for the respondents.
1. Heard learned counsel for the petitioners and perused the record.
CIVIL WRIT (CW) No.7451 of 2008 Smt. Shyama Devi @ Samu Kanwar & anr.
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2. By way of this writ petition, the petitioners are seeking directions to the respondents to pay compensation a sum of Rs.5,00,000/- or more for the upbringing of their additional children born even after petitioner no.1 undergoing tubectomy operation.
3. The petitioners already having two children decided to go for family planning and accordingly, the petitioner no.1 underwent a tubectomy operation on 14.12.99. However, the operation failed, leading to birth of yet another child on 17.9.01. The petitioner no.1 again underwent tubectomy operation on 30.10.06 at the Community Health Centre, Mathania. A certificate to this effect was issued by the Senior Medical Officer, In-charge, Community Health Centre, Mathania, however, the operation again failed and the petitioner no.1 gave birth to a child on 3.4.08.
4. Learned counsel appearing for the petitioners submitted that it is a case of gross medical negligence inasmuch as, the petitioner no.1 had undergone CIVIL WRIT (CW) No.7451 of 2008 Smt. Shyama Devi @ Samu Kanwar & anr.
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3 tubectomy operation twice but both failed. Learned counsel submitted that obviously, the petitioners shall need a huge amount to facilitate the upbringing of additional children and therefore, the respondents deserves to be directed to pay the compensation to the petitioners for negligence on the part of the doctors conducting the operations.
5. It is to be noticed that there is no specific allegations against the surgeons who have performed the sterilisation operation, had committed breach of duty cast on them as surgeon or they acted with negligence, which has resulted in failure of tubectomy operations. As a matter of fact, the surgeons who have performed the operations, are not even impleaded as party to the present writ petition. There is nothing on record to show that what prevented the petitioners to act promptly and go for abortion if they were not desirous of having additional child. In any case, there is no evidence on record to establish the negligence on CIVIL WRIT (CW) No.7451 of 2008 Smt. Shyama Devi @ Samu Kanwar & anr.
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4 the part of the surgeons in performing the operations. That apart, it remains a seriously disputed question of fact, which cannot be adjudicated by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India.
6. In the matter of "State of Punjab vs. Shivram & Ors.", 2005(2) WLC(SC), 500, the Hon'ble Apex Court held as under:-
"24. We are therefore, clearly of the opinion that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam's test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee.
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25. The cause of failure of sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the material removed at a subsequent operation of re- sterilisation. The discrepancy between operation notes and the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynecologist in case of failure of sterilization operation.
27. The methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to sub-section(2) of Section 3 provides-
"Explanation II- Where any pregnancy occurs as a result of failure of any device or method used by any married woman woman or her husband for the purpose of limiting the CIVIL WRIT (CW) No.7451 of 2008 Smt. Shyama Devi @ Samu Kanwar & anr.
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number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman."
28. And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971.
29. The cause of action of claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed.
30. For the foregoing reasons, we are of the opinion that the judgments and the decrees passed by the High Court and courts below cannot be sustained . The trial court has proceeded to pass a decree of damages in favour of the plaintiffs-respondent solely on the ground that in spite of the plaintiff-respondent No. 2 having undergone a sterilization operation, she became pregnant. No finding has been arrived at that will hold the operating CIVIL WRIT (CW) No.7451 of 2008 Smt. Shyama Devi @ Samu Kanwar & anr.
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7 surgeon or its employer- the State, liable for damages either in contract or in tort. The error committed by the trial court, though pointed out to the first appellate court and the High Court, has been overlooked. The appeal has , therefore, to be allowed and the judgment and decree under appeal have to be set aside."(emphasis added)
7. In view of the position of law settled by the Hon'ble Supreme Court in Shivram's case (supra), which squarely applies on the facts of the present case, in absence of any cogent evidence regarding negligence on the part of the surgeons conducting the operations, no relief as prayed for, can be granted.
8. In the result, the writ petition fails, it is hereby dismissed. However, the dismissal of the writ petition shall not preclude the petitioners from availing the appropriate remedy available under the law in respect of the relief claimed. No order as to costs.
(SANGEET LODHA),J.
ADITYA/-