Madhya Pradesh High Court
The State Of M.P. & Ors. vs Samarwati Bai & Anr. on 1 May, 2017
1
FIRST APPEAL NO. 569/1996
04.05.2017
Shri Ajay Pratap Singh, learned Government Advocate for
the appellant.
None for respondents.
This appeal under Section 96 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 1.10.1996 passed in the Civil Suit No. 7 A/1995.
Respondents-plaintiffs, wife and husband, filed a suit against the State of Madhya Pradesh and its functionaries including Appellant No. 4 engaged as Gynaecologist in the services of State of Madhya Pradesh for recovery of damages of Rs. five lacs on account of twins born to them in spite of respondent No. 1 having undergone tubectomy operation performed by appellant No. 4. According to them they already had four children, one daughter and three sons. In response to publicity by the State Government as to family planning the respondent No. 1 with consent of respondent No. 2 underwent the operation on 14.4.1984 certificate Ex. P/1, in this regard was issued by the Medical Officer. On 12.5.1991 she gave birth to twins. After serving notice under Section 80 Code of Civil Procedure, 1908 the suit for recovery of damages was filed on 17.9.1993 attributing the birth of children to carelessness and negligence of Medical Officer.
2The defendant filed their written statement in which it was admitted that the Appellant No. 4 had conducted Tubectomy Operation of respondent No. 1 on 14.4.1984. It was denied that appellant No. 4 was negligent in performing operation. It was also stated that the appellant No. 4 is an experienced doctor and there had been no complaint of any sort in respect of her professional attainment. It was also stated that under Medical Termination of Pregnancy Act, 1972, the facility of termination of pregnancy is available free of cost, the respondent/plaintiff no. 1 should have availed the same in case of unwarranted pregnancy. The liability to pay compensation was denied. It was also stated that in the Standard Text Book it is stated that operation is not always successful.
The parties went to trial. On 4.12.1995 the Trial Court directed the parties to keep their witnesses present and posted the matter for 19.4.1996. On 19.4.1996 as the Presiding Officer was on leave the matter was adjourned and posted for 1.5.1996 whereon the date was fixed as 27.9.1996. On 27.9.1996 respondent No. 1 plaintiff got herself examined and closed her evidence. The Trial Court instead of giving opportunity to the defendants heard the matter finally and decreed the suit on 1.10.1996 for Rs.50,000/- with interest and costs.
At the very outset, it is contended on behalf of the appellant that there being an authoritative pronouncement of 3 law by the Supreme Court in case of failure of T.T Operation that unless the negligence of the doctor is established the doctor cannot be held liable for damages nor can the State be vicariously held liable. Decision in State of Punjab v. Shiv Ram and others [(2005) 7 SCC 1] has been relied on to substantiate the contention.
In State of Punjab v. Shiv Ram and others (supra) it is held:
"25. 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.
26. The cause of failure of sterilization operation may be obtained from laparoscopic inspection of the uterine 4 tubes, or by x-ray examination, or by pathological examination of the materials 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 gynaecologist in case of failure of sterilisation operation. (See: Law of Medical Negligence and Compensation by R.K. Bag, Second Edition, p.139)
30. 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 such a child cannot be claimed.
In the case at hand, the respondent No. 1-plaintiff entered in the witness box and deposed that the doctor performed the operation after taking due care. That after conceiving she did not make any effort for termination of pregnancy (eSa xHkZikr ugha 5 djkuk pkgrh FkhA tc cPps esjs xHkZ esa vk;s rks eSaus ;g eku fy;k fd vc bu cPpksa dks iSnk gks tkus nwWaA eq>s ;g tkudkjh Fkh fd ftyk vLirky flouh esa dkuwuh rkSj ij xHkZikr dj fn;k tkrk gSA eSaus xHkZikr djkus dh dHkh dksf'k'k ugha dhA) As the plaintiff failed to establish the negligence of doctor and even did not got the pregnancy terminated the judgment decree dated 1.10.1996 is not sustainable and is hereby set aside. The suit filed by respondent is dismissed. However, there shall be no costs.
(SANJAY YADAV) JUDGE vivek tripathi