Madhya Pradesh High Court
The State Of M.P. vs Pavitra Bai on 21 September, 2022
Author: Virender Singh
Bench: Virender Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIRENDER SINGH
ON THE 21st OF SEPTEMBER, 2022
FIRST APPEAL No. 345 of 2002
BETWEEN:-
1. THE STATE OF M.P. THROUGH COLLECTOR,
SHAJAPUR.
2. DR. R.K. NEMA, PRIMARY HEALTH CENTRE,
MAKODI, TAHSIL DISTRICT SHAJAPUR.
3. CHIEF MEDICAL OFFICER, DISTRICT
SHAJAPUR.
.....APPELLANT
(BY SHRI HITENDRA TRIPATHI, GOVT. ADVOCATE WITH MS.
PRANJALI YAJURVEDI, PANEL LAWYER)
AND
PAVITRABAI W/O RAMDAYAL, AGED ABOUT 35
YEARS, CASTE DHOLI, OCCU. HOUSE WIFE R/O
GOPIPUR LOHARWAL, PARGANA, DISTT.
SHAJAPUR.
.....RESPONDENT
(BY SHRI VINAY SARAF, SENIOR ADVOCATE WITH SHRI RIZWAN
KHAN,ADV.)
This appeal coming on for final hearing this day, the court passed the
following:
ORDER
The State has preferred this appeal against the judgment and decree dated 26.4.2002 passed by District Judge, Shajapur in Civil Suit No. 1-B/2000; whereby, the State has been directed to pay compensation of Rs.1,00,000/- with interest @ 9% per annum if not paid within a month to the respondent for the failure of her Tubectomy due to alleged negligence of appellant No. 2 Dr. R.K. Nema who operated the respondent.
Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHALSigning time: 9/24/2022 5:30:00 PM 2
2. The brief fact of the case are that respondent was operated by Dr. R.K. Nema in Sterlization Camp Gopipur,Tahsil Loharwas, tahsil and district Shajapur on 8.12.1994. It was alleged that requisite precautions were not taken during the said Tubectomy due to which the operation failed. The respondent conceived and delivered a baby boy on 29.4.1998 in District Hospital Shajapur.
She was already having two daughters and one son. Due to this 4th child, she was forced to bear additional expenses necessary to grow-up the child. In addition, she also suffered physical and mental agony. Therefore, she sued the State demanding compensation of Rs.5,00,000/-. Her suit was partly allowed and a decree was granted in her favour as stated in preceding paragraph.
3. The suit was contested on the grounds that the said operation was performed taking all necessary precautions and due diligence. During this period besides medical advice she was provided all types of medicines and food. Even after operation she was kept under observation for a week as indoor patient and only thereafter finding the operation successful and the respondent hale and hearty, she was discharged after explaining her about the precautions to be undertaken in future, and with a specific advice to visit the doctor for regular check-up. It was further contended that the respondent herself was either negligent or was interestd in the child because if even after conceived by failure of operation, she was to immediately go to the doctor who operated her or before any other doctor to seek advice, if she wanted to terminate the unwanted pregnancy. As per the Medical Termination of Pregnancy Rules, 1995, she was free to get it terminated up to 20 weeks but she never visited the hospital seeking advice or preferred to terminate the pregnancy. Therefore, she herself was negligent and only in the greed of money Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 9/24/2022 5:30:00 PM 3 she had filed the civil suit. Since the doctor was never negligent and the entire operation was successful; therefore, State cannot be held responsible for the pregnancy of the respondent and saddled with the compensation.
4. The State has further averred that it was only the respondent who allowed to continue the pregnancy which caused after three years and four months. Further, after the sterilization the same can be re-opened if some one wants a child. In this case also possibility of respondent opened the Sterilization cannot be ignored. The State has also drawn attention of this Court to the possibility of failure of Tubectomy due to the natural reasons.
5. In her turn the respondent has supported the order passed by the Trial Court and prayed for dismissal of the appeal.
6. I have gone through the order passed by the Trial Court.
7. Trial Court has framed following issues:
(i) Whether the Sterilization conducted for family planing of plaintiff was failed due to negligence of the doctor who is in subordination of respondent State and she delivered an unwanted child?
(ii) Whether the plaintiff is entitled to get Rs.5,00,000/- towards compensation?
(iii) Cost and litigation expenses.
8. There is no dispute that respondent underwent tubectomy operation on 8.12.1994 and even after operation she conceived twice and delivered babies which shows that her operation failed. However, the core question here is not of failure of the operation but is, whether this failure was due to negligence of the doctor which renders respondent entitled to get compensation. It is settled principle that if the failure was not due to negligence of the doctor, the affected person is not entitled for compensation.
Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHALSigning time: 9/24/2022 5:30:00 PM 4
9. In this regard we may usefully refer to the order of apex court in the case of Jacob Mathew Vs. State of Punjab reported in (2005) 6 SCC 1 and State of Punjab Vs. Shivram reported in (2005) 7 SCC 1 and also the order passed by this Court dated 16th July 2007 in the case of Smt. Chamanbai v. State of Madhya Pradesh reported in [2007 3 MPHC 541].
10. In Chamanbai case (supra) this Court considered:
6. Aforesaid paragraph shall not detain this Court any more for the reason that the question involved herein came up before the Apex Court twice in the case of State of Haryana and Ors. v. Santra and State of Punjab v. Shiv Ram and Ors. . In the case of Santra (supra), the plaintiff after undergoing the sterilization operation in a Government Hospital under the Sterilization Scheme, was issued a certificate of total sterilization operation and assured that she would not conceive a child in future. Due to the negligence on the part of the doctor conducting the operation the sterilization was not complete as only the right fallopian tube was operated upon and the left fallopian tube was left untouched. As a result the plaintiff conceived and gave birth to a female child in spite of the operation. The Supreme Court accepted the plaintiff's claim both against the doctor and Government for damages with the following observations:
19. Family planning is a national programme. It is being implemented through the agency of various Government hospitals and health centres and at some places through the agency of the Red Cross. In order that the national programme may be successfully completed and the purpose sought may bear fruit, everybody involved in the implementation of the programme has to perform his duty in all earnestness and dedication. The Government at the Centre as also at the State level is aware that India is the second most populous country in the world and in order that it enters into an era of prosperity, progress and complete self-dependence, it is necessary that the growth of population is arrested. It is with this end in view that the family planning programme has been launched by the Government which has not only endeavoured to bring about an awakening about the utility of family planning among the masses but has also attempted to motivate people to take recourse to family planning through any of the known devices or sterilisation operation. The programme is being implemented through its own agency by adopting various measures, including the popularisation of contraceptives and operation for sterilizing the male or female. The implementation of the programme is thus directly in the hands of the Government officers, including Medical Officers involved in the Family Planning Programmes. The Medical Officers entrusted with the implementation of the Family Planning Programme cannot, by their negligent acts in not performing Signature Not Verified the complete sterilisation operation, sabotage a scheme of national Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 9/24/2022 5:30:00 PM 5 importance. The people of the country who co-operate by offering themselves voluntarily for sterilisation reasonably expect that after undergoing the operation they would be able to avoid further pregnancy and consequent birth of an additional child.
37. Ours is a developing country where the majority of the people live below the poverty line. On account of the ever increasing population, the country is almost at the saturation point so far as its resources are concerned. The principles on the basis of which damages have not been allowed on account of failed sterilisation operation in other countries either on account public policy or on account of pleasure in having a child being offset against the claim for damages cannot be strictly applied to Indian conditions so far as poor families are concerned. The public policy here professed by the Government is to control the population and that is why various programmes have been launched to implement the State-
sponsored Family Planning Programmes and policies. Damages for the birth of an unwanted child may not be of any value for those who are already living in affluent conditions but those who live below the poverty line or who belong to the labour class, who earn their livelihood on a daily basis by taking up the job of an ordinary labour, cannot be denied the claim for damages on account of medical negligence.
42. Having regard to the above discussion, we are positively of the view that in a country where the population is increasing by the tick of every second on the clock and the Government had taken up family planning as an important programme for the implementation of which it had created mass awakening for the use of various devices including sterilisation operation, the doctor as also the State must be held responsible in damages if the sterilisation operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who had chosen to be operated upon for sterilisation.
7. Case of Santra (supra), came up for consideration before the Supreme Court in Shiv Ram's case (supra). While distinguishing the earlier case, the Apex Court discussed in depth the various techniques adopted for female sterilisation and observed as follows:
2 5 . We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilisation 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 Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 9/24/2022 5:30:00 PM 6 hereinabove, ordinarily a surgeon does not offer such guarantee.
28. The methods of sterilisation so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilised woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy.
8. On the aforesaid parameters, it may be seen that the petitioner had undergone sterilisation operation and a certificate to this effect was issued vide Annexure P-2. However, she was not assured by the operating doctor or by the State Government that she would not conceive in future. No such document/certificate has been placed on record by the petitioner. The Medical Termination of Pregnancy Act, 1971 makes a provision for termination of pregnancy in certain cases. Relevant portion of Section 3 is reproduced below:
3. When pregnancies may be terminated by registered medical practitioners.-
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of Sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-
(a) *** *** *** *** ***
(b) *** *** *** *** *** Explanation 1. *** *** *** *** *** Explanation 2. Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
9. Since the pregnancy of the petitioner was on account of failure of sterilisation operation, she could have got the pregnancy terminated by registered medical practitioner under Explanation (II). There is no iota on record to establish negligence on the part of the operating doctor. In these circumstances, the petitioner having not opted for the termination of pregnancy in accordance with the aforesaid provision, cannot be allowed to claim damages on account of birth of 5th child.
10. In the result, the petition being devoid of merits is hereby dismissed summarily, however, without order as to costs.
Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHALSigning time: 9/24/2022 5:30:00 PM 7
11. Coming back to the present case, the respondent only examined herself before the Trial Court to establish his case and in her statement she had only narrated the facts that she underwent tubectomy operation which later failed. Not a single word has been uttered why her operation was failed or that it was failed due to some negligence of the surgeon/doctor.
12. Otherwise also there is no evidence that at the time of operation the doctor assured or guaranteed that her operation will be 100% successful or that there will be no failure of the operation. Researches in the field suggest that for several reasons there remains chances of failure of operation and one out of 55 operations may fail for several natural or other reasons. The reasons may vary from person to person or case to case. The doctor cannot be held liable for such a failure for one or the other natural causes. When there is no evidence of negligence of operating surgeon, certainly the respondent is not entitled for any compensation.
13. The Trial Court has not considered the law on the subject and has also not appreciated the facts and the evidence placed on record in right perspective. Only on the basis of assumption and presumptions, the suit has been decreed even when there is no evidence of negligence of the doctor. Therefore, neither the doctor nor his employer can be held responsible for the compensation. The findings of the learned trial court are certainly erroneous and deserves to be set aside.
14. No other ground has been agitated before this Court. Therefore, this Court is not inclined to appreciate the evidence on other issues.
15. Fact situation of the case in hand is almost identical to the fact situation in Chaman Bai (supra). In this case also she conceived after more than 4 years of sterlisation. She never consulted or visited the doctor, never came Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 9/24/2022 5:30:00 PM 8 forward for termination of her pregnancy, even after delivery of a child after failure of the operation she again conceived and delivered a child, and all this shows that for the reasons best known to her, even when she was willing to limit her family according to her financial resources, she never attempted to limit her family knowingly and consciously. Therefore, now she cannot ask for any damages or compensation for the said to be unwanted children.
16. In the considered opinion of this Court the Trial Court has erred in holding the State and its functionaries liable to pay the compensation to the respondent/plaintiff and erroneously granted decree in her favour. The same cannot be sustained in the eyes of law.
17. For the aforesaid reasons the judgment and decree dated 26.4.2002 passed in Civil Suit No. 1-B/2000 is set aside and the suit of the respondent/plaintiff is dismissed.
18. The appeal stands allowed. A decree be drawn up accordingly.
(VIRENDER SINGH) JUDGE vivek/mk Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 9/24/2022 5:30:00 PM