Punjab-Haryana High Court
Saroj vs Union Of India And Others on 2 July, 2009
Author: Jasbir Singh
Bench: Jasbir Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.11087 of 2008
Date of Decision: 02.07.2009
Saroj
Petitioner
Versus
Union of India and others
Respondents
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
Present: Mr.Harsh Bunger, Advocate for the petitioner
Mr.Heman Aggarwal, Advocate for respondent No.1
Mr.Tarunveer Vashisth, Additional Advocate General, Haryana
Mr.A.K.Sharma, Additional Advocate General, Punjab
.....
Jasbir Singh, J.(Oral)
By filing this writ petition, the petitioner prays that respondent No.2 be directed to grant compensation of Rs.ten lacs to the petitioner in view of a fact that 'bilateral tubectomy operation', which the petitioner had undergone for family planning, has failed and she has given birth to a 3rd child.
It is case of the petitioner that she got married with one Sh.Avtar Singh. Thereafter two children born out of the wedlock and with a view to plan her family, she went for surgical operation on 13.6.2006. However, operation failed and she again conceived in the month of January 2007. Thereafter she gave birth to a child. By stating as above, compensation has been claimed.
Heard.
There is no proof on record that on suspecting pregnancy, the petitioner has gone in for termination of the pregnancy to any doctor or there was any handicap in getting the pregnancy terminated. Under these Civil Writ Petition No.11087 of 2008 2 circumstances, in view of authoritative judgment of the Hon'ble Supreme Court in State of Punjab v. Shiv Ram and others, AIR 2005 S.C. 3280, this Court feels that the petitioner is not entitled to get any compensation as raised. In above said judgment, it was observed as under:-
28.The cause of action for 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 the child cannot be claimed.
29.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-respondents 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 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 challenge have to be set aside...... The basis of liability of a professional in tort is negligence. Unless the negligence is established, the primary liability cannot be fastened on the medical practitioner. Unless the primary liability is established, vicarious liability on the State cannot be imposed."
At the time of arguments, by making reference to the written statement filed by respondent No.1, it has been brought to the notice of this Civil Writ Petition No.11087 of 2008 3 Court that as a measure of precaution, to encourage family planning, to cover cases of failure of such like operations, respondent No.1 has formed an insurance policy under which, the petitioner is entitled to get Rs.20,000/- by way of compensation. This Court feels that claim raised is perfectly justified. Respondent No.1, in its written statement, in paragraph No.7, has stated as under:-
"It is further submitted that authoritative text books on Gynecology and Research have recognized the failure rate dependent on the technique. As per the WHO-Technical document - Medical eligibility Criteria for contraceptives use, there is 0.5% unintended pregnancy following female sterilization after surgery. The Government of India has, therefore, taken out an Insurance Policy in pursuance of the directions of the Hon'ble Court in Writ Petition (Civil) No.209/2003 with the Insurance Company to provide for Family Planning Insurance Scheme which was introduced w.e.f. 29th November, 2005 for a period of one year to take care of the cases of failure of sterilization, medical complications or death resulting from sterilization and also provided indemnity cover to the doctor/ health facility performing sterilization procedure. The Insurance Policy was placed before the Hon'ble Supreme Court in WPO No.209/2003m and it was implemented with approval. Family Planning Insurance Scheme was revised from time to time. This Scheme was again revised and improved w.e.f. 1st of January, 2008. Photocopies of the Family Planning Insurance Scheme and the revised and Civil Writ Petition No.11087 of 2008 4 improved schemes are annexed with the reply as Annexure R/1 collectively."
Further, in paragraph Nos.15 and 16, it has been stated as follows:-
"That in reply to the averments in this para it is submitted that there is provision in the existing Insurance Policy being implemented under the directions of the Supreme Court and the petitioner is entitled for a compensation as provided in the policy. Since the petitioner underwent sterilization surgery as far back as on 13.6.2006, subsequent failure the entitlement as prevalent during that period is Rs.20,000/-."
Copy of the policy has been placed on record as Annexure R1. This Court feels that case of the petitioner, to claim an amount of Rs.20,000/-, is squarely covered in terms of the policy put on record (Annexure R1). Accordingly, this writ petition is allowed to that limited extent, directing respondent No.1 to grant compensation of Rs.20,000/- to the petitioner. Needful be done within a period of three months from the date of receipt of a copy of this order. Director Health, State of Punjab, is directed to forward case of petitioner, for payment of compensation, to the competent authority, within a period of three weeks from today.
Copy of the order be supplied to the State counsel under signatures of the Court Reader and to others dasti on payment of usual charges.
02.07.2009 (Jasbir Singh) gk Judge