Madhya Pradesh High Court
Smt. Bhawna Goswami vs The State Of Madhya Pradesh on 6 May, 2019
1
THE HIGH COURT OF MADHYA PRADESH
WP No.8689/2019
(Smt. Bhawna Goswami vs. State of M.P. & Ors.)
Gwalior, Dated : 06.05.2019
Shri Amin Khan, Counsel for the petitioner.
Shri Purshottam Rai, Panel Lawyer for the respondents/State.
This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:
"7.1 For a writ of mandamus or any other writ, order or direction to the Respondents to provide Rs.2 Lakhs compensation to the Petitioner to compensate her for grave violation of her fundamental rights to life, health, dignity, and equality as well as suffering due to apathy of the respondents No.1, 2 and 3 including trauma of being forced to deliver causing great mental, emotional and physical trauma to her. 7.2 That after the failure of the sterilization petitioner gave birth to a child and, petitioner has to bear the whole responsibility of her health, schooling, marriage, etc. after the failure of the sterilization now it became the responsibility of the state to take care of the children."
It is submitted by the counsel for the petitioner that on 26.3.2016 the petitioner had undergone sterilization operation, however, in spite of that she conceived and delivered a child and, therefore, by making representation she had claimed a compensation of Rs.2,00,000/-. It is submitted by the counsel for the petitioner that 2 THE HIGH COURT OF MADHYA PRADESH WP No.8689/2019 since the guarantee was given by the respondents regarding the success of sterilization operation, thereafter, she has been blessed with a child which was never planned by them and, accordingly, the compensation of Rs.2,00,000/- should be granted.
Per contra, it is submitted by the counsel for the State that there is no 100% surety regarding the success of sterilization operation. After the petitioner got conceived, she had an option for undergoing the abortion but in spite of that she has willingly given birth to a third child. Thus, she cannot claim compensation. The counsel for the respondents has relied upon the order passed by this Court in the case of Smt. Radha Ujjainkar vs. State of M.P. & Ors.
reported in 2008 (4) MPHT 223 and the order dated 3.4.2018 passed by this Court in the case of Smt. Uma Pal vs. State of M.P. passed in W.P.No.7188/2018 and the judgments passed by the Supreme Court in the cases of Jacob Mathew vs. State of Punjab & Anr. reported in (2005) 6 SCC 1 and State of Punjab vs. Shiv Ram & Ors. reported in (2005) 7 SCC 1.
Heard the learned counsel for the parties.
The Government of India has issued a Manual for Family Planning Indemnity Scheme. Considering the Family Planning Indemnity Scheme, a Co-ordinate Bench of this Court by order dated 5.7.2017 passed in W.P.No.3634/2016 has observed as under:-
3THE HIGH COURT OF MADHYA PRADESH WP No.8689/2019 "In the present case, the undisputed facts reveal that the petitioner has undergone Sterilization Operation on 24/08/2011. The undisputed facts also reveal that the petitioner has later on delivered a child through Cesarean Operation. No document has been filed in respect of post-operative care / advise given to the petitioner by the Doctor at the time of operation.
Government of India in order to ensure proper implementation of Family Planning Scheme has issued a manual for Family Planning Operations and has framed a scheme known as Family Planning Indemnity Scheme. As per the scheme and keeping in view the directions of the Hon'ble Supreme Court in the case of Ramakant Rai & Anr. Vs. Union of India & Ors. passed in Writ Petition (Civil) No.209/2003, the Union of India has laid down the norms and in case of death a sum of Rs.1 Lac has to be given and a sum of Rs.30,000/- in case of incapacity and Rs.20,000/- in case of post-operative complications. Relevant extract of the scheme in paragraphs No.1.1.9 reads as under:-
"1.1 Directives of Hon'ble Supreme Court:
9. The Union of India shall also lay down the norms of compensation which should be followed uniformally by all the states. For the time being until the Union the Union Government formulates the norms of compensation, the States shall follow the practice of the State of Andhra Pradesh and shall pay Rs.1 Lakh in case of death of the patient sterilized, Rs 30,000/- in case of incapacity and in the case of post-operative complications, the actual cost of treatment being limited to the sum of Rs.20,000/-."
The scheme is operational from 01/10/2013. In light of the scheme as the factum of operation and delivery of a child has not been denied, there is no documents on record to establish that the petitioner was directed to take post-operative care, this Court is of the opinion that the petitioner is 4 THE HIGH COURT OF MADHYA PRADESH WP No.8689/2019 entitled for a sum of Rs.30,000/- as per the Indemnity Scheme.
Learned Government Advocate has drawn the attention of this Court towards Annex.-R/1 which is a literature relating to failure of female sterilization and his contention is that there is no such method which provides for 100% guarantee in case of sterilization operations.
This Court has carefully gone through the aforesaid document, however, the aforesaid document will not supersede the Indemnity Scheme framed by the Government of India. Learned counsel for the State Government has also placed reliance upon a judgment of the Hon'ble Supreme Court in the case of State of Punjab Vs. Shiv Ram (Supra) and his contention is that unless and until it is established that there was negligence on the part of the Surgeon, no compensation can be awarded.
This Court has once again carefully gone through the aforesaid judgment and is of the opinion that the judgment is of the year 2005, thereafter, the Government of India in the year 2013 has framed a scheme based upon the subsequent judgment delivered in the case of State of Punjab Vs. Shiv Ram (Supra) dated 01/03/2005 and therefore, in the considered opinion of this Court, the judgment relied upon is again of no help to the State Government.
Resultantly, the writ petition stands allowed with a direction to the Chief Medical and Health Officer, Shajapur to pay a sum of Rs.30,000/- to the petitioner within a period of 60 days from the date of receipt of certified copy of this order. In case, the amount is not paid within 30 days to the petitioner, the same shall carry interest @ 12.5% per annum from 24/08/2011 till the amount is actually paid to the petitioner."
The case of the petitioner is fully covered by the aforesaid order. Accordingly, the respondents are directed to pay a 5 THE HIGH COURT OF MADHYA PRADESH WP No.8689/2019 compensation of Rs.30,000/- to the petitioner by way of compensation.
Accordingly, this petition is finally disposed of.
(G.S. Ahluwalia)
(alok) Judge
ALOK KUMAR
2019.05.07
16:30:15 +05'30'