Delhi District Court
Ms. Anita vs Principal Secretary on 3 November, 2012
1
IN THE COURT OF SHRI KAPIL KUMAR, CIVIL JUDGE (WEST),
TIS HAZARI COURTS, DELHI
SUIT NO. 177/09
Date of Institution : 04.06.2009
Date of reservation of judgment : 03.11.2012
Date of pronouncement of Judgment : 03.11.2012
IN THE MATTER OF :
Ms. Anita
W/o Sh. Raj Kumar
R/o A2/33C, Hastsal Road
Uttam Nagar, New Delhi57.
....Plaintiff
Vs
1. Principal Secretary
Secretary ( Health)
Govt. of NCT of Delhi
New Secretariat, 9th Floor
I.G. Stadium, New Delhi.
2. The Chief Medical officer
Smt. Sucheta Kriplani Hospital
Panchkuian Road, New Delhi
......Defendants
SUIT FOR COMPENSATION OF RS.3,00,000/
JUDGEMENT
1. Plaintiff states that she was already having three daughters Suit NO. 177/09 1/9 2 when one more male child born to the plaintiff on 21.4.1996 at 2.30 a.m. at Smt. Sucheta Kriplani Hospital vide registration no. 11047/96. Plaintiff further states that since there was no need of further child therefore on the same day I.e on 22.4.1996 the plaintiff was operated with sterlization operation and a certificate to this effect dated 08.6.1996 was issued to the plaintiff.
2. Plaintiff further states that she was duly assured by the concerned doctor to consume the matrimonial life freely and without any fear of further pregnancy. But to the surprise of the plaintiff she became pregnant in the month of January, 2006 and gave birth to a male child namely Daksh Kumar at home on 08.9.2006. During the period of this pregnancy she met the concerned doctors at Sucheta Kriplani hsoptial various times but no satisfactory answer was ever given to her in this respect.
3. Plaintiff states that on 24.3.2006 when the plaintiff came to know about her pregnancy first time she immediately rushed to defendant no.2 hospital for her check up and examination but till that the child in the womb had taken the shape and it was dangerous for the life of plaintiff to abort the said child. However the doctor were adamant to get the child aborted without caring for the life of the plaintiff. Plaintiff requested doctor to adopt some other way to find out the solution during this period but till then child in the womb grown up and it was totally impossible for the plaintiff to get the child aborted and finally she gave birth to male child on 08.9.2006.
4. Plaintiff further states that the husband of the plaintiff is a fourth class employee at Sports Authority of India, Tal Katora Stadium, New Delhi who has to look after a big family consisted of five children, wife, mother and himself thereby totalling to eight person in the meager salary of Suit NO. 177/09 2/9 3 16034/ only. Plaintiff further states that due to the birth of fifth unwanted child, plaintiff and her husband unnecessarily come under the burden to maintain a male child upto 21 years which is totally due to the carelessness and negligence on the part of concerned doctors of defendant no.2.
5. Plaintiff further states that if the concerned doctors had taken due care then the fifth unwanted child would not have born. Defendant no.2 hospital being run under the control and supervision of defendant no. 1 , therefore both the defendants are liable to compensate the plaintiff to the tune of Rs.3,00,000/ . Hence the present suit.
6. Written statement filed on behalf of defendants wherein by way of preliminary objections defendants stated that there is no cause of action in favour of plaintiff to file the present suit and the plaintiff not approached the courts with clean hands. The suit of the plaintiff is liable to be dismissed as there was no negligence on the part of doctors of defendant no.2. The doctors have performed the sterilization operation with utmost care and caution and the present suit is a tool to extract money from the defendants only.
7. While replying on merits defendants state that the plaintiff not contacted with the concerned doctors at Sucheta Kriplani Hospital during the relevant time. It is further stated that on 31.3.2006 one ultrasound was performed upon the plaintiff which shows the pregnancy of 10.5 weeks + one week. Further stated that the decision to go under MTP lies with the patient only and there was no pressure exercised by the doctors upon the patient. Further the contraceptive methods are not immuned from failure and this fact was conveyed to the plaintiff.
8. Defendant further states that the plaintiff could have chosen to Suit NO. 177/09 3/9 4 undergo MTP in the first and second month of pregnancy of fifth child but she chosen to give birth to the fifth child and further stated that cumulative ten years probability of pregnancy is 7.5/100 as in the case of plaintiff since she became pregnant after 10 years. It is further submitted that in this matter the failure is probably due to recanalisation of tubes which is known fact reported in medical literature. Defendants have the histopathology report of tubal segaments which states " two unremarkable tublets " which is proof that it was indeed the fallopian tubes which was cut and legated. Hence it is evident that the procedure was correctly performed.
9. Defendant further stated in their W.S that Government had started an insurance scheme under which any failure of sterilization operation is granted the compensation of Rs. 30,000/ so the plaintiff can report to the family welfare of Sucheta Kriplani Hospital and can collect the amount upon proper verification of the hospital.
10. Replication filed by the plaintiff in which he denied all the allegations made by the defendants in their written statement and reiterated her stand as taken by her in the plaint.
11. Vide order dated 24.2.2010 following issues were framed by the Ld. Predecessor of this court :
1.Whether the plaintiff is entitled to decree for compensation as prayed for ? OPP
2.Relief.
12. To prove her case plaintiff examined four witnesses The plaintiff examined herself as PW1, PW2 is the husband of plaintiff, PW3 Sh. Naresh Kumar, Medical Record Clerk from Sucheta Keriplani Hospital and Dr. Ritu, Senior Resident lady Harding Suit NO. 177/09 4/9 5 Hospital as Ex. PW4 in whose testimony following documents are exhibited :
Voter Icard of Anita Rani as Mark A, Discharge Slip as mark B, copy of sterilization operation as Mark C, copy of sterilization certificate as Mark D, medical paper of DDU hospital as mark E, OPD Card as Mark F, medical paper of DDU hospital as mark G, OPD Card as Mark H, copy of birth certificate as Mark I , copy of notice dated
13.2.2009 as Ex. PW 1/1, postal receipts are as Ex. PW 1/ 2, , Ex. PW 1/3, AD card as Ex. PW 1/ 4.
13. Defendants examined only one witness I.e Dr. Ratna Biswas Professor Departs of Obst and Bynecology as DW 1.
14. My issuewise findings are as under :
15. ISSUE No. 1 & 2.
Whether the plaintiff is entitled to decree for compensation as prayed for ? OPP Relief
16. The onus to prove this issue was upon the plaintiff. Admittedly a sterilization operation was performed upon the plaintiff on 22.4.1996 and on 08.9.2006 plaintiff delivered fifth child. Accordingly, it is more than after 10 years of sterilization operation plaintiff delivered a male child.
17. Ld. Counsel for plaintiff vehemently argued that things speak for itself as the fact of pregnancy of plaintiff after sterilization operation is a proof that doctors were negligent while performing sterilization operation due to which plaintiff suffered physically and mentally. Accordingly the defendants are liable to pay compensation to the plaintiff Suit NO. 177/09 5/9 6 for the birth of unwanted child. Ld. Counsel for plaintiff put his reliance upon a well established judgment of Hon'ble Supreme Court AIR 2000 SC Page No. 1888 titled as State of Haryana Vs Smt. Santra.
18. On the other hand, Ld. Counsel for defendant states that there was no negligence on the part of defendant no.2 hospital. Further sterilization operation is not a guarantee that pregnancy will not occur in future as there are always chances of failure of sterilization operation and accordingly the plaintiff is not entitled to any compensation as prayed for.
19. There is no evidence led on behalf of plaintiff that the doctor concerned was negligent in performing his or her duty or that she flipped or failed or fluttered in her duty. No medical report/record/opinion of an independent doctor placed on record which could suggest that doctor concerned was negligent in performance of his/her duties. Mere conception and delivery post sterilization operation is no indication of negligence. From the testimony of Pws or from the crossexamination of DW1 nothing is came out which could show that the doctors were negligent in performing their duty. Reliance could be placed upon in this regard upon the judgment of Hon'ble High Court of Delhi titled as Smt. Madhubala Vs Govt. of NCT of Delhi and Others (118) 2005 DLT 515 ( DB).
Further in State of Haryana Vs. Raj Rani VI (2005) SLT 527, it was held by Hon'ble Supreme Court that :
" Child birth inspite of a sterilization operation can occur due to the negligence of doctor in performance of operation or due to certain natural causes such as spontaneous recanlization. The doctor can be held liable only in cases where failure of operation is attributable to his negligence and not otherwise.Suit NO. 177/09 6/9 7
Several textbooks on medical negligence have recognized the percentage of failure of sterilization operation due to natural causes to be varying between 0.3 % to 7% depending upon the technique for method chosen for performing the surgery out of several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was profound by a proficient doctor successfully by adopting a technique recognized by medical science. Thus, the pregnancy can be for reasons dehors any negligence of the surgeon. In the absence of proof of negligence. The surgeon cannot be held liable to pay compensation. Then the question of state being vicarious liable also would not arise. "
20. As above mentioned there is no evidence that the doctor concerned was negligence, hence the judgment titled as State of Haryana Vs. Smt. Santra (supra) is not applicable because in that case operation was not complete as only the right fallopian tube was operated and the left tube was left untouched. There is no such allegation in the present case. Moreover in that case before the Hon'ble Supreme Court, doctor appearing as a witness had admitted the negligence in performing the surgery. The plaintiff failed to prove negligence on the part of hospital or doctor concerned and in view of this it is surely not a case of res ipsa loquitur.
21. The plaintiff is asking for damages yet she was herself negligent enough. It is evident from the testimony of PWs that the plaintiff and her husband came to know about the pregnancy of plaintiff in Suit NO. 177/09 7/9 8 the month of January, 2006 and as stated by PW1 in her cross examination she went to defendant's hospital after the expiry of three months. She further stated that it is correct that I have not contacted and consulted defendant hospital regarding the irregularity of menstrual cycles. PW2 in her crossexamination stated that he consulted regarding the problem ( fifth pregnancy) with private doctors in the month of February, 2006 but did not contact with defendants regarding the irregular periods of his wife. Had the plaintiff taken some appropriate steps at the proper time some remedial measures could have been taken. In these circumstances fifth child of the plaintiff could not said to be an unwanted child.
22. In view of the above discussion the plaintiff is not entitled to compensation as prayed by her. But the defendants in their written statement admitted that at the time of sterilization operation they assured the plaintiff that in case of failure of sterilization operation, she will be entitled to Rs.30,000/ as compensation. This suggestion is also put by Ld. Counsel for defendant to PW1. It is an admission on the part of defendants regarding their liability qua plaintiff to the amount of Rs. 30,000/ Ld. Counsel for defendants submitted during final arguments that this scheme of Rs.30,000/ is not prevalent now and the plaintiff at present is not entitled to anything. The court is of the view that if an assurance was given to the plaintiff while she was operated the same assurance could not be taken away from her afterwards. Government can change the policies but these welfare policies could not be changed retrospectively. Here the principle of estoppel also applies against defendants. In view of this the plaintiff is hereby granted compensation to the amount of Rs. 30,000/ Suit NO. 177/09 8/9 9 alongwith interest @ 6 % per annum from the date of this order till the realization of decretal amount.
No order as to cost.
Decree Sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court ( KAPIL KUMAR ) on 02.11.2012 Civil Judge01( West)/Delhi Suit NO. 177/09 9/9 10 C.S 177/09 03.11.2012 Present : Husband of plaintiff in person alongwith counsel. Ms. Kusum lata , Ld. Counsel for defendants. Final arguments heard. Put up for Judgment at 4.00 p.m. \ ( KAPIL KUMAR ) Civil Judge01( West)/Delhi At 4.00 p.m. Present : None.
Vide separate judgment of the even date the suit of the plaintiff is partly decreed. Plaintiff is granted compensation to the amount of Rs. 30,000/ alongwith interest @ 6 % per annum from the date of the order till the realization of decretal amount.
No order as to cost.
Decree Sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
( KAPIL KUMAR ) Civil Judge01( West)/Delhi 03.11.2012 Suit NO. 177/09 10/9