Delhi District Court
Smt. Reshma vs Union Of India on 22 August, 2012
IN THE COURT OF SH. SUNIL KR. AGGARWAL: ADDL.
DISTRICT JUDGE (CENTRAL) 10: DELHI
Suit no. 160/05
Smt. Reshma,
W/o Sh. Sukhpal Singh,
R/o B36, Vill: Gokulpur,
Delhi. .... Plaintiff.
Versus
1. Union of India
(Through its Secretary)
Ministry of Health & Family Welfare,
Nirman Bhawan,
New Delhi.
2. Medical Superintendent,
Safdarjung Hospital,
New Delhi.
3. Dr. Upma Saxena,
Safdarjung Hospital,
New Delhi. .....Defendants
Plaint presented on 20.01.2004
J U D G M E N T :
1. Present is a suit for damages emanating from failed sterilization. According to the plaintiff she is housewife and has five minor children out of which three are mentally retarded and require her constant care and attention. In order to avoid further pregnancy, she had undergone Tubectomy at Safdarjung Hospital, New Delhi on Suit no. 160 of 2005 Page no. 1 of 10 22.09.1999 vide OT Registration no. 8498. The operation was conducted by defendant no. 3 and a certificate no. 1292/99 was issued to her in this behalf on 29.09.1999. While discharging her from the hospital the plaintiff was assured of the success of operation and that there are no chances of further conception. The plaintiff on her part had taken every precaution prescribed by the doctor after being discharged. In 2002 health of the plaintiff started deteriorating for which she got herself examined by a doctor who disclosed that she is carrying pregnancy of 1214 weeks. The plaintiff was shocked and naturally anxious about the normalcy of her child in the womb. Ultimately the plaintiff delivered a baby girl on 29.12.2002 at Central Hospital, Northern Railways, Basant Lane, Delhi. Due to negligence on the part of the doctors of Safdarjung Hospital in performing Tubectomy operation, the plaintiff is burdened with the responsibility of unwanted child. Husband of the plaintiff considers her to be inauspicious for begetting mentally retarded children and she has no independent means of survival. Due to the unwanted conception and birth of girl child, plaintiff has not only to look after her day to day needs but also is deprived of her personal liberty and unable to devote adequate time to her mentally retarded children. It is stated that the defendants are liable to pay a sum of Rs. 10,00,000/ to her by way of damages for their negligence and putting plaintiff to permanent cost and expenditure. Notice U/s 80 CPC was sent to the defendants but no reply has been received. This suit for recovery of damages with Suit no. 160 of 2005 Page no. 2 of 10 interest @ 24% per annum has therefore, been filed.
2. The suit was filed as an indigent person. The application under Order 33 CPC of the plaintiff was allowed on 01.05.2006.
3. In their joint written statement defendants have taken preliminary objection of the suit being barred by limitation and that the plaintiff is possessed of sufficient means as to be capable of paying requisite court fee. On merits it is admitted that the plaintiff had undergone Tubectomy operation at Safdarjung Hospital on 22.09.1999 which was successfully performed by Senior Resident on duty by taking full care and precautions. Defendant no. 3 had not performed it. She however had issued the sterilization certificate. A written consent of the plaintiff had been obtained before the surgery by clearly specifying that there was a chance of failure for which she would neither hold the Government Hospital nor the Surgeon responsible. It is claimed that the operation has accepted failure rate for which the concerned Surgeon cannot be held responsible. The plaintiff should have visited Safdarjung Hospital when she claims to be suffering from health problems, for check up. On detecting her pregnancy, it could have been medically terminated safely at that time, as is legally permissible. It is denied that the plaintiff is entitled to claim any damages and compensation in view of her decision to carry the pregnancy.
Suit no. 160 of 2005 Page no. 3 of 10
4. In replication plaintiff has reiterated the contents of plaint and rebutted the adverse contents of written statement. It is claimed that no authorization of signatory of written statement on behalf of the defendants has been filed. The hospital authorities have concealed the material facts in order to save the erring doctor. The name of concerned doctor who had performed the operation has not been consciously disclosed. The plaintiff had approached the doctors at Safdarjung hospital, no attention was paid to her problem nor was she advised to terminate the pregnancy. It has been denied that the consequences of Tubectomy were disclosed to her.
5. Following issues were framed in the matter on 29.08.2006 on the basis of pleadings :
1. Whether the suit is barred by limitation ?
2. Whether the plaintiff is entitled to damages in the sum of Rs. 10,00,000/ as prayed for ?
3. Relief.
6. In support of her case parties have examined one witness each. Plaintiff has appeared as PW 1 and proved Medical certificates regarding mental condition of her two children as Ex. PW 1/1 and Ex. PW 1/2, Sterilization certificate Ex. PW 1/3, Birth certificate of unwanted child Ex. PW 1/4 and consent form Ex. PW 1/D1. She had closed her evidence on 15.01.2008.
Suit no. 160 of 2005 Page no. 4 of 10
7. Defendant no. 3 Dr. Upma Saxena appeared as DW 1 and proved copy of family planing certificate Ex. DW 1/1, literature about failure rate of Laparoscopic Legation as Ex. DW 1/2 besides narrating the facts. Defendants had closed their evidence on 17.09.2008.
8. I have heard Sh. K. S. Sharma, Adv. Ld. Counsel for the plaintiff, Sh. Sanjay Aggarwal, Adv. Ld. Counsel for the defendants and carefully perused the file. My issuewise findings are recorded hereunder :
9. Issue no. 1: A meek and vague objection of suit being barred by Law of Limitation has been raised in the written statement which the defendant has not even attempted to establish in evidence. The cause of action for filing the suit for damages had for the first time accrued in favour of plaintiff when she was revealed of carrying a pregnancy of 1214 weeks in the first half of 2002. Filing of suit in January, 2004 is well within the normal limitation period of 3 years. Ld. counsel for the defendants has not pin pointed any of the article of Part VII of the Schedule to the Limitation Act prescribing shorter period of limitation for the present suit. The issue therefore, is decided in negative.
Suit no. 160 of 2005 Page no. 5 of 10 10. Issue no. 2:
Two fold arguments have basically been raised by the defendants to negate the claim of plaintiff. Firstly that the plaintiff should have contacted the defendants for termination of unwanted pregnancy immediately on being informed of conception. She having consciously carried the pregnancy cannot blame the defendants for being responsible for the unwanted baby girl and to seek damages for being made to nurture the child out of her already stretched means at the cost of care and attention needed by her mentally retarded children. Secondly it is argued that the plaintiff was explained and clarified about the accepted failure rate of Tubectomy beforehand by permission letter Ex. PW1/D1 whereby the family had accepted that no one will be held responsible on failure of the operation. Ld. counsel for the defendants has cited State of Punjab Vs. Shiv Ram, AIR 2005 SC 3280 in support of his contentions wherein it was held that compensation can be awarded only if failure of sterilization operation is attributable to negligence of the doctors. Failure due to natural causes do not provide ground for claim. If the claimant opts for bearing the child despite failure of operation, he cannot claim compensation for its upbringing.
11. Ld. counsel for the plaintiff on the other hand argued that although the signatures of husband of plaintiff may have been obtained Suit no. 160 of 2005 Page no. 6 of 10 by the defendants on the letter Ex. PW1/D1 but neither its contents were disclosed and explained to her nor copy was provided. The plaintiff had visited Safdarjung Hospital on being informed of the conception but there was none to pay heed to her problem. She was treated callously rather than administered proper consultation. By the time she consulted the doctors elsewhere, it had become too late to terminate the unwanted pregnancy. It is also rued that the defendants have consciously concealed the name of Surgeon who had performed the sterilization operation on the plaintiff nor has she been examined in this case to allay negligence on her part.
12. It is apparent from her standing that the plaintiff belongs to lower strata of society. Her husband was working as a Khalasi in Railway. While the plaintiff had studied upto 5th Standard, her husband has done Inter. The permission letter Ex. PW1/D1 is not claimed to have been filled up by the plaintiff or any of her relative. There is further nothing to perceive that the husband of plaintiff had gone through the printed contents prior to putting his signatures on it. There is no suggestion of copy of Ex. PW1/D1 having been provided to him. It cannot therefore, be claimed that the plaintiff and for that matter her family members had understood the effect and consequences of the disclaimer of defendants contained in permission letter.
Suit no. 160 of 2005 Page no. 7 of 10
13. Moreover as per DW1 it is internationally accepted that Laparoscopic Legation has varying failure rates shown in Ex. DW1/2. The defendants however chose not to disclose the data of failure rate of sterilizations in Safdarjung Hospital and whether the same is anywhere near the said accepted rate. The plaintiff cannot be accepted to adduce evidence in this behalf. Such data was within exclusive domain of the defendants. Having withheld the same for no apparent reason, the adverse inference is liable to be taken against them.
14. By scrupulously withholding the name of surgeon who had performed sterilization on the plaintiff and from the witness box the defendants have shielded the best evidence. The logical inference that had she been produced, her negligence in performing the surgery as a competent professional would have spilled, can legitimately be drawn.
15. Under normal circumstances on a woman missing a menstrual cycle, after sterilization, she is expected to visit the doctor for medical advise. As per Section 3(2) of Medical Termination of Pregnancy Act, 1971 if the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible. The plaintiff in this case has deposed that she felt pain in her abdomen and on contacting the Central Hospital, Northern Railway, she was advised Suit no. 160 of 2005 Page no. 8 of 10 that the pregnancy cannot be aborted. It is quite natural that on learning about pregnancy, she must have contacted Safdarjung Hospital atleast to complain to the doctor about the mishap and for necessary treatment. She claims not to have been allowed to enter the hospital therefore, she consulted AIIMS in OPD as the medical record produced by her reveals.
16. Neither the OPD Card nor discharge slip of plaintiff after sterilization indicate that she had been advised to meet the doctor for periodical check up after removal of the stitches on 29.09.1999. Apart from the medical advise written on these two documents, no further precautions have been specified by the defendants which may have been suggested to the plaintiff to perceive her negligence in getting conceived even after sterilization.
17. It has to be appreciated that the plaintiff belongs to downtrodden part of the society. She may not have remained quite vigilant about missing her menstrual cycles as she had onerous responsibility of looking after five small children of various ages of whom three are mentally retarded. In her circumstances it cannot be said that she has deliberately carried the unwanted pregnancy. The case therefore, does not completely fall within the four corners of the judgment cited on behalf of the defendants.
Suit no. 160 of 2005 Page no. 9 of 10
18. Plaintiff could not make out the case against defendant no. 3 who had just issued a certificate Ex. PW1/3 to her. The claim for damages cannot be fastened on her.
19. The plaintiff has not given the details of damages to arrive at a fanciful figure of Rs. 10,00,000/ (Rupees Ten Lakhs). Since she also has to share part of the blame, the interest of justice in the peculiar facts of this case will meet on awarding damages of Rs. 1,00,000/ with interest @ 9% p.a. from the date of filing of suit till realization and proportionate costs in favour of the plaintiff and against defendants no. 1 and 2.
20. Since the plaintiff was allowed to sue as an indigent person, the court fee on the awarded amount shall be the first charge on realization of amount, if any from the defendants.
Decree sheet be prepared. File be consigned to Record room.
Announced in the open court on 22nd August, 2012.
(Sunil Kr. Aggarwal)
Addl. District Judge (Central)10
Delhi
Suit no. 160 of 2005 Page no. 10 of 10
Suit no: 160/05
22.08.2012
Present: Representative of the plaintiff.
Proxy counsels for the defendants.
Vide separate judgment, suit has partly been decreed in favour of the plaintiff and against defendants no. 1 and 2 with proportionate costs. It has been dismissed against defendant no. 3. The amount of court fee payable on the plaint as per awarded amount shall first be realized out of the decreetal amount.
Decree sheet be prepared. File be consigned to Record Room.
(Sunil Kr. Aggarwal)
Addl. District Judge (Central)10
Delhi: 22.08.2012
Suit no. 160 of 2005 Page no. 11 of 10