Madras High Court
Joint Director Of Health Services vs Palaniammal on 11 August, 2018
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 24.07.2018
PRONOUNCED ON : 11.08 .2018
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S. A.No.751 of 2005
1. Joint Director of Health Services,
Dharmapuri.
2. State of Tamilnadu rep. By
The District Collector,
Dharmapuri ...Appellants
Vs.
Palaniammal ...Respondent
Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 29.08.2003 passed in A.S.No.23 of 2002 on the file of the Principal District Court at Krishnagiri, confirming the judgment and decree dated 27.02.2002 passed in O.S. No.5 of 1997, on the file of the Subordinate Court, Dharmapuri.
For Appellants : Mrs. A. Madhumathi
Additional Government Pleader (CS)
For Respondent: Ms. V. Srimathi
JUDGMENT
In this second appeal, challenge is made to the judgment and decree dated 29.08.2003 passed in A.S.No.23 of 2002 on the file of the Principal District Court at Krishnagiri, confirming the judgment and decree dated 27.02.2002 passed in O.S. No.5 of 1997, on the file of the Subordinate Court, Dharmapuri.
2. Parties are referred to as per their rankings in the trial Court.
3. Suit for Compensation.
4. The case of the plaintiff, in brief, is that she was married to Madhu in the year 1987 and gave birth to the second child on 04.05.1993 and thereafter, the plaintiff and her husband decided to undergo family planning operation and accordingly, the plaintiff got admitted in the Government headquarters hospital, Dharmapuri, under the direct control of the first defendant, for the purpose of undergoing permanent sterilisation operation and the plaintiff was operated on 03.06.1993 by Dr.K.Saraswathi, then employed as Civil assistant surgeon by the second defendant and after the operation, the plaintiff was discharged on 09.06.1993 and she was assured by Dr.K.Saraswathi and the staff of the hospital that if permanent sterilisation operation was done, no child would be born to her in future and the plaintiff accordingly, on the fond hope that she would not give birth to any new child and also accordingly followed the instructions given by the doctor while discharging her and also abstained from having sexual intercourse about an year after the operation. However, the plaintiff got pregnant in the year 1994, and on being tested by Dr. Renuka, M.D., private medical practitioner at Paparapatti, the doctor confirmed the pregnancy of the plaintiff and thereafter, the plaintiff took treatment for the same, thereupon, the plaintiff and her husband issued a notice on 07.06.1995 to the defendants seeking compensation of Rs.1,50,000/- for the pregnancy caused to the plaintiff despite the family planning operation and the defendants, after receiving the notice, the reply has been sent contending that the allegations are false and the same are denied. The plaintiff gave birth to a female child on 07.06.1995 in the Government hospital, Pennagaram, and the plaintiff was forced to have the child on account of the negligent acts of the defendants in performing the family planning operation and due to the same, the plaintiff became pregnant again and delivered a female child and accordingly, it is stated by the plaintiff that she has been necessitated to lay the suit for seeking compensation of a sum of Rs.75,000/- from the defendants.
5. The case of the defendants, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts. It is true that the plaintiff was operated under Family Welfare Programme in Government Headquarters Hospital, Dharmapuri on 03.06.1993 by one Dr.K.Saraswathi and sent back to home in a good condition. However, the allegation that the concerned doctor and the staff of the hospital gave assurance to the plaintiff that she would not again get conceived after the family planning operation, is false. The defendants' department had given clear instructions to all the persons, who had volunteered to undergo Tubectomy operation, about the fact of the failure of the operation and the same would not render the medical department or the doctor or anyone else responsible and in fact, the plaintiff had also been informed of the chances of failure of the operation before the operation and understanding the same, the plaintiff had signed in the necessary forms and hence, the contention that the plaintiff had been assured that she would not again get conceived after the family planning operation is false. The defendants are not aware of the treatment undergone by the plaintiff by the private medical practitioner after getting conceived again and the family welfare operation was done on the plaintiff by an experienced and well trained medical officer and accordingly post operative treatment and instructions were also given to the plaintiff after the operation and the medical officer Dr.K.Saraswathi is not responsible for any failure arising due to the non adherence of the instructions by the plaintiff. The plaintiff, after noting the fact that she had conceived again, had failed to approach the doctor who had conducted the family welfare operation on her and the above conduct of the plaintiff would go to show that the plaintiff had decided to have a child again and accordingly, did not come forward to have consultation with the Government hospital thereafter and the plaintiff has no cause of action to lay the suit and the suit laid by the plaintiff is liable to be dismissed.
6. In support of the plaintiff's case PW1 was examined, Exs.A1 and A7 were marked. On the side of the defendants DW1 was examined, Ex.B1 was marked.
7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to accept the plaintiff's case and granted the relief in favour of the plaintiff appropriately. Impugning the same, the present second appeal has been laid.
8. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration:
a) Whether the Courts below failed to appreciate the rarest possibility as a result of medical miracle while imposing compensation to the plaintiff?
b) Whether the plaintiff is entitled for the compensation when she voluntarily participated the medical camp for the purpose of Family Planning Operation?
c) whether the compensation awarded to the plaintiff is not disproportionate to the actual injury especially when the operation was performed at free of cost?
d) whether the suit is not barred under Section 9 of code of Civil procedure as the effective remedy is available to the plaintiff under the Consumer Protection Act?
9. It is not in dispute that the plaintiff underwent family planning operation at the Government headquarters hospital, Dharmapuri on 03.06.1993 and it is also not in dispute that the abovesaid family planning operation was done on the plaintiff by Dr.K.Saraswathi, then employed as Civil Assistant Surgeon under the second defendant. Thereafter, it is found, according to the plaintiff, though she had been assured that she would not get conceived, got pregnant and the same had been confirmed by the private medical practitioner with whom the plaintiff had consultation and accordingly, it is the case of the plaintiff that inasmuch as she had become pregnant again and gave delivery to a female child despite the family planning operation conducted on her by the doctor of the defendants, and despite the assurance given by the defendants that she would not get conceived and on account of the negligent manner in which the defendants had conducted the operation on her, there by, she had got conceived and gave birth to a female child once again. It is thus the case of the plaintiff that she had been put to irreparable loss and hardship and accordingly for seeking suitable compensation, she has laid the suit against the defendants.
10. Per contra, it is the case of the defendants that, even though the plaintiff had undergone sterilisation operation under the defendants, it is the case of the defendants that no assurance had been given to the plaintiff that she would not get conceived again after the said operation and on the other hand, it is the specific case of the defendants that the plaintiff had been informed the possibilities of failure of such operations and after having knowledge of the same and signing the necessary forms pertaining to the same, it is stated that the plaintiff underwent the family planning operation by a well trained doctor and thereafter, she got discharged after given due instructions and therefore, it is contended that the plaintiff had not got conceived again due to the negligent act of the doctor who had performed the operation and hence it is stated that the plaintiff is not entitled to seek any compensation from the defendants and the suit is liable to be dismissed.
11.The plaintiff has examined herself in support of her case and on a perusal of the evidence of the plaintiff, examined as PW1, during the course of cross examination, it is seen that the plaintiff has clearly admitted that only after accepting the condition as regards the failure of the family planning operation and signing the necessary form, marked as Ex.B1, she had underwent the operation and accordingly, it is seen that the case of the plaintiff that she had been assured that she would not get conceived again after the family planning operation as such cannot be countenance in any manner. From the evidence of DW1, the doctor, who had performed the family planning operation on the plaintiff and the document marked as Ex.B1, it is found that the plaintiff has given her consent for undergoing the sterilisation operation in necessary form and a reading of the contents of the abovesaid form would go to show that the plaintiff had been duly warned of the chances of failure of the operation to be done on her, for which, the Government hospital / operating surgeon could not be held responsible by the plaintiff or by anyone claiming under her and accordingly, it is found that the plaintiff had also admitted that only after giving consent and knowing the chances of failure of the family planning operation, she had undergone the operation by the defendants. Therefore, when the plaintiff, having understood the criteria of the abovesaid operation and accordingly, the operation had been done on the plaintiff by DW1 and when the plaintiff during the course of evidence has not disputed the capability of DW1 in performing the abovesaid operation on her and all that she would state that she does not know whether DW1 is an experienced medical practitioner and in such view of the matter, it is found that the plaintiff after having fully understood the consequences of the failure of the sterilisation operation, is found to have undergone the said operation.
12. No doubt, the plaintiff had again got conceived and it is further found that the plaintiff gave birth to a female child thereafter,and thereby attributed negligence on the part of the defendant by contending that the defendants' doctor who had performed the sterilisation operation on her, has not performed the same in a proper manner, which resulted in the plaintiff again getting conceived. It is found that on the above basis the plaintiff had come forward with the suit seeking necessary compensation from the defendants.
13. In this connection, from the decision of the Apex Court reported in AIR2005 SC 3280 (State of Punjab Vs. Shiv Ram and Others), it is found that, merely because the woman, having undergone sterilisation operation, had become pregnant and delivered a child, on that footing, the operating surgeon or his employer cannot be held liable for the compensation on account of the unwanted pregnancy or unwanted child and it is held that the claim in tort in such circumstances can be sustained only if there was negligence on the part of the surgeon in performing the surgery. It is also seen that the proof of negligence shall have to satisfy Bolam's test and the position of law as regards the above field has been adumbrated by the Apex Court in the abovesaid decision in the following manner:-
Civil Sterilisation appeal challenging decree of damages passed by High Court in favour of respondents on ground that respondents having undergone sterilisation operation became pregnant cause of action for claiming compensation in cases of failed sterilisation operation arises on account of negligence of surgeon and not on account of child birth failure due to natural causes would not provide any ground for claim no finding arrived to hold operating surgeon or its employer liable for damages either in contract or in tort there are several alternative methods of female sterilisation operation recognised by medical science of today none is foolproof and no prevalent method of sterilisation guarantees 100% success causes for failure can well be attributed to any failure on part of surgeon judgements and decrees passed by High Court and Courts below cannot be sustained appeal allowed.
17. 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 Bolams 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.
20.The methods of sterilization 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 sterilized 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 Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to subsection (2) of Section 3 provides "Explanation II.
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."
And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971.
21. 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.
22. For the foregoing reasons, we are of the opinion that the judgments and the decrees passed by the High Court and courts below cannot be sustained. The trial court has proceeded to pass a decree of damages in favour of the plaintiffs-respondents solely on the ground that in spite of the plaintiff-respondent No.2 having undergone a sterilization operation, she became pregnant. No finding has been arrived at that will hold the operating surgeon or its employer - the State, liable for damages either in contract or in tort. The error committed by the trial court, though pointed out to the first appellate court and the High Court, has been overlooked. The appeal has, therefore, to be allowed and the judgment and decree under appeal have to be set aside.
23.We have decided the question of law and held that the decree awarding the damages was totally uncalled for and had no foundation in law, and therefore, has to be set aside. The present case is an occasion, which we would like to utilize for the purpose of making certain observations on three related topics noted hereunder.
14. Applying the above principles of law enunciated by the Apex Court, it is found that the cause of action for the plaintiff for claiming the compensation in case of failure in the sterilisation operation would arise only on account of the negligence of the surgeon and not on the account of child birth to the plaintiff again. When it is noted that despite the sterilisation operation, there are natural causes which would again give rise to the conceivement of a child by a woman who had undergone the said operation and when it is further noted that the woman who had again got conceived did not opt to go for the medical termination of the same after gathering knowledge of the said conception, it is seen that the woman cannot be allowed to complain that she had been forced to give birth to another child and that the said child is an unwanted child and accordingly, it is found that the woman or anyone claiming under her cannot be allowed to maintain a suit for compensation by merely alleging that she had become conceived and gave birth to a child despite the sterilisation operation conducted on her.
15. Insofar as this case is concerned, other than alleging that the doctor who had performed the operation had not done the operation in a proper manner, the plaintiff had failed to place any other material to hold that the doctor, namely, DW1, had conducted the family planning operation in a negligent manner. If that be so, the plaintiff should have furnished the necessary materials with reference to the same and particularly, as outlined by the Apex Court in the abovesaid decision, the plaintiff has to establish the proof of negligence on the part of the concerned doctor i.e. the same had failed to satisfy Bolam's Test and further when it is noted that other than mere allegation, the plaintiff had not placed any material worth acceptance to conclude that the concerned doctor had performed the operation in a negligent manner and on the other hand, as above seen, when the credentials of the concerned doctor had not been found to be disputed by the plaintiff other than stating that she does not know about the same and when it is seen from the evidence of DW1, she is an experienced doctor and performed several operations of similar nature and when it is further also noted that the chances of failure of such sterilisation operations are also bound to occur due to varying factors as detailed by the Apex Court in the abovesaid decision and when it is also noted that even on account of the natural causes, after the operation, there is a chance of a woman getting again conceived, in such view of the matter, it is found that the plaintiff cannot be allowed to maintain the present suit against the defendants on the bare allegation that she had again got conceived despite the sterilisation operation performed on her in the absence of any material produced by the plaintiff attributing any negligence on the part of the concerned doctor in performing the operation.
1.The position of law as above determined by the Apex Court is also found to have been followed by our Courts in the decision reported in (2013)7MLJ227 (N. Sumathi Vs. The state of Tamil Nadu, The Joint Director, The Chief Medical Officer and Mariammal) and also in the decision of the High Court dated 23.07.2010 passed in Second Appeal No.673 of 2007 (Senior Medical Officer, Government Hospital, Joint Director, Health and Medical Sciences, Government Hospital, District Collector and Dr.A.N.Natharsha, Government Hospital Vs. Ayammal).
2.
17. In the light of the above position of law, considering the materials placed on record in the present case, when there is no evidence worth acceptance placed by the plaintiff to show that there was any negligence on the part of the concerned doctor who had conducted the operation on her and when it is further noted that the plaintiff had been duly informed by the concerned doctor about the failure of such operation and when it is already noted that the plaintiff thereafter, on getting again conceived, did not approach the Government hospital for consultation and take further steps to get the child aborted and on the other hand, it is found that the plaintiff had proceeded to give birth to a child after taking private consultation, in such view of the matter, it is seen that as rightly put forth by the Additional Government pleader appearing for the defendants that the defendants cannot be fastened with any liability in paying the compensation to the plaintiff on account of the alleged failure of the sterilisation operation done on the plaintiff.
18. The plaintiff's counsel in support of her case, placed reliance upon the decisions of our High Court dated 08.12.2006 passed in Second Appeal No.1819 of 2002 and CMP No.15372 of 2002 (Dr.Alice George and another Vs. Lakshmi), dated 26.07.2011 passed in Second Appeal (MD) No.129 of 2006 and CMP (MD) No.932 of 2006 (The District Collector, Thanjavur District and 2 others Vs. Saraswathi) and dated 30.10.2014 passed in Second Appeal No.683 of 2006 (Sumathi Vs. Dr. Suganthi, Government hospital, Namakkal District and 2 others). However, in the abovesaid cases, it is found that the Courts had held that the burden is heavy upon the medical officer to prove that there was no negligence in performing the sterilisation surgery. However, when as per the decision of the Apex Court above referred to, the burden is only upon the plaintiff to establish the negligence on the part of the surgeon in performing the said surgery and further, the proof of negligence shall also have to satisfy Bolam's test and in such view of the matter, when, insofar as the present case is concerned, the plaintiff having failed to establish any negligence as such on the part of the doctor in performing the sterilisation operation and when there is also no material placed on record to show that the plaintiff had adhered to the instructions given by the concerned doctor to be followed during the post operative period and there is also no proof that the plaintiff had not undergone any sexual intercourse within the period of one year from the date of operation as such and when also it is noted that there are possibilities of the plaintiff getting again conceived despite the sterilisation operation even on account of natural causes as held by the Apex Court in the decision referred to above and when the conduct of the plaintiff further goes to show that the plaintiff had not taken effective steps to get the child aborted on coming to know of the conceivement, all the facts put together would only go to show that the plaintiff cannot be allowed to seek compensation from the defendants as such and accordingly, it has to be held that the Courts below had erroneously held that the plaintiff is entitled to seek compensation from the defendants by shifting the burden upon the defendants by holding that they had failed to establish that the operation had been conducted by the concerned doctor in a proper manner. The first appellate court is found to have held that inasmuch as the defendants had not endeavoured to submit the plaintiff for further medical examination, on that basis appears to have upheld the plaintiff's case. However, when as above noted, the plaintiff had not endeavoured to consult the Government hospital as regards the conception she had again attained, in such view of the matter, there is no need on the part of the defendants to have subjected the plaintiff to medical examination as such when the plaintiff had proceeded to give birth to a child after getting private consultation and accordingly, it is seen that the Courts below, by erroneously shifting the burden on the defendants, had granted relief in favour of the plaintiff, which cannot be sustained in the eyes of law.
19. In the light of the above discussion, the Courts below had failed to appreciate that there is also the possibility of failure of the sterilisation operation and again failed to note that the plaintiff, only after gaining knowledge about such failures, had given the consent and volunteered to undergo the sterilisation operation and when the plaintiff had not taken steps to consult the Government hospital on coming to know of the conceivement again after the operation and when the plaintiff had failed to establish any negligence on the part of the doctor in performing the operation, the substantial questions of law 1 to 3 formulated in this second appeal are accordingly answered against the plaintiff. The fourth substantial question of law as regards the maintainability of suit under civil code for compensation, it has not been shown that the civil action would be barred in seeking the compensation and accordingly, it is held that the civil action is maintainable and the fourth substantial question of law is answered accordingly.
20. For the reasons aforestated, the judgment and decree dated 29.08.2003 passed in A.S.No.23 of 2002 on the file of the Principal District Court at Krishnagiri, confirming the judgment and decree dated 27.02.2002 passed in O.S. No.5 of 1997, on the file of the Subordinate Court, Dharmapuri are set aside and resultantly, the suit laid by the plaintiff in O.S. No.5 of 1997 is dismissed without costs. Accordingly, the second appeal is allowed. No costs. Consequently, connected miscellaneous petition, if any, is closed.
11.08.2018 Index : Yes/No Internet:Yes/No bga To
1. The Principal District Court, Krishnagiri
2. Subordinate Court, Dharmapuri.
3. Joint Director of Health Services, Dharmapuri.
4. State of Tamilnadu rep. By The District Collector, Dharmapuri.
5. The Section Officer, V.R.Section, High Court, Madras.
T.RAVINDRAN,J.
bga Pre-delivery Judgment in S. A.No.751 of 2005 11.08.2018