Punjab-Haryana High Court
State Of Haryana And Another vs Smt. Babli And Others on 18 February, 2014
Equivalent citations: AIR 2014 (NOC) 566 (P. & H.)
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
RSA No.4130 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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RSA No.4130 of 2010 (O&M)
Date of Decision:18.02.2014
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State of Haryana and another
. . . .Appellants
Versus
Smt. Babli and others
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.Kulvir Narwal, Addl. A.G. Haryana.
None for respondent No.1.
Mr.Pardeep Chahar, Advocate,
for respondent No.2.
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RAKESH KUMAR JAIN, J.
The defendants are in appeal against the judgment and decree of the Appellant Court by which suit filed by the plaintiff for damages has been decreed to the extent of `1,50,000/- on account of failure of tubectomy operation.
The plaintiff filed suit for recovery of `5 lacs as damages against the defendants alleging that she had undergone a tubectomy operation at CHC Jhajjar on 27.4.2004 under the National Family Planning Programme. The operation was performed by defendant No.3 under the supervision of defendant No.2 without following the medical norms as she was already having two months pregnancy of that time. She contacted defendant No.3 on 29.6.2004 at RSA No.4130 of 2010 -2- CHC Jhajjar and made a complaint regarding increasing size of her belly but she was told that it was due to operation. She again went to defendant No.3 and at that time defendant No.3 came to know that plaintiff was pregnant. She was told that her pregnancy can be terminated by way of operation but she did not agree because it was not safe at that stage. Ultimately, she got treatment from a private Doctor and gave birth to a male child on 16.11.2004. The plaintiff has alleged that she is a poor household lady, already having five children and with the birth of unwanted sixth children she had suffered financial loss and mental agony and thus claimed damages of `5 lacs.
In the separate written statements filed by defendant No.1 & 2 and 3 respectively, it was admitted that plaintiff had tubectomy operation on 27.4.2004 performed by defendant No.3 but before the operation she lied that her last menstruation period (LMP) was on 24.4.2004. She disclosed about the pregnancy on 29.6.2004 whereas as per MTP Act, 1973, a 20 weeks' pregnancy could be easily removed free of cost but plaintiff and her husband did not agree for it because they might have come to know that foetus was of a male child. It was thus alleged that the child was not unwanted and plaintiff had given birth deliberately.
On the pleadings of the parties, issues were framed and both the parties led their oral as well as documentary evidence in support of their case. RSA No.4130 of 2010 -3-
The trial Court dismissed the suit of the plaintiff holding that there is no failure of operation as the child has been born of the conception which was already there before the operation was performed. However, the Appellate Court allowed the appeal of the plaintiff on the ground that though Ex.D1 shows that the last menstruation period of the plaintiff was 25.4.2004 but there is no documentary evidence in that regard, therefore, it cannot be presumed that defendants were vigilant while doing tubectomy operation. It is also observed that the defendants were careless while performing the operation because if they came to know that plaintiff was already pregnant at that stage, they made wrong noting in the document Ex.D1 that plaintiff had told them that her last menstruation was on 25.4.2004.
Learned counsel for the appellants has submitted that the defendants/appellants would be liable to pay damages to the plaintiff only if it is established, by leading evidence, that there is a medical negligence on the part of the defendants while performing sterilization operation. Merely because the plaintiff delivered a child, the operating surgeon cannot be held liable for compensation. He has thus raised a substantial question of law "as to whether the surgeon, performing tubectomy operation, would be liable to pay compensation if medical negligence is not proved by leading cogent evidence?"
RSA No.4130 of 2010 -4-
Learned counsel for the appellants has relied upon a judgment of the Supreme Court in the case of "State of Punjab Vs. Shiv Ram and others" 2005(7) SCC(1) and judgment of this Court in the case of "State of Haryana Vs. Smt. Amrawati" 2008(3) RCR (Civil) 87. It is also submitted that it is not a case of failure of tubectomy operation as the plaintiff was already pregnant at the time when the sterilization operation was done. Learned counsel for the appellants has further submitted that at the time of sterilization, the fallopian tubes were blocked. Since the plaintiff was already pregnant, the said pregnancy could have been terminated if she had not misled the appellants that she had menstruation on 25.4.2004 while the operation took place on 27.4.2004 because this is a case where the child was delivered even before 7th month. It is also submitted that the plaintiff has not become pregnant after the sterilization operation was done therefore, she is not entitled to any compensation.
No one has put in appearance on behalf of the plaintiff though respondent No.2 has been represented and supported the arguments of the appellants.
I have heard learned counsel for the parties and after perusal of the record it has been found that there is no fault or negligence on the part of the appellants much less respondent No.2 in performing sterilization operation because there is no delivery of any child because of pregnancy after RSA No.4130 of 2010 -5- the said operation as the child has been delivered by the plaintiff because of the two months pregnancy which was already there when she had undergone sterilization operation. She did not disclose to the Doctors that she was not having menstruation from the last three months and being a young woman having five children, already knew very well that if she had missed her menses, the reason could be that she was pregnant or otherwise she should have consulted her Doctor in that regard. Thus, it is not a case where the child has not been born after the sterilization operation rather the child has been born on account of the pregnancy which was already there before the sterilization. Hence, there is no fault on the part of the appellants and in that regard, the decision of the Supreme Court in the case of Shiv Ram (Supra) and this Court in the case of Amrawati (Supra) comes to the rescue of the appellants.
In view of the aforesaid discussion, the question of law raised by learned counsel for the appellants is decided in their favour and it is held that the plaintiff is not entitled to any damages/compensation as there is no fault on the part of the appellants. The appeal is thus, hereby allowed and the judgment and decree of the lower Appellate Court is set aside and trial Court is restored.
(RAKESH KUMAR JAIN) 18.02.2014 JUDGE Vivek Pahwa Vivek 2014.02.25 13:40 I attest to the accuracy and integrity of this document