Madhya Pradesh High Court
Smt. Uma Pal vs The State Of Madhya Pradesh on 3 April, 2018
THE HIGH COURT OF MADHYA PRADESH
WP-7188-2018
(SMT. UMA PAL Vs THE STATE OF MADHYA PRADESH)
Gwalior, Dated : 03-04-2018
Shri Purushottam Rai, learned counsel for the petitioner.
Shri Praveen Newaskar, learned Govt. Advocate for the
respondents/State.
Petitioner has filed this petition claiming compensation on account of failure of Tubectomy operation undergone by the petitioner on 16.05.2016.
sh It is petitioner's that she was already mother of two children born on e 29.09.2010 and 09.07.2013. On 16.05.2016 she had undergone Tubectomy ad operation but on 27.05.2017 she discovered that she was again pregnant and Pr thereafter gave birth to third child on 06.11.2017. On account of failure of Tubectomy operation, she has prayed for directions to be issued to the a respondents to pay compensation to the tune of Rs. 23,95,500/- and also hy directions to the respondents to issue a certificate of exemption from ad condition of three children for availing benefits under any Central/State Government policy in favour of petitioner and her husband.
M Learned Govt. Advocate Shri Praveen Newasakar has placed reliance of on the judgment of Division Bench of this Court in case of Smt. Radha Ujjainkar Vs. State of M.P. as reported in 2008(4) MPHT 223, wherein rt Hon'ble Division Bench held that there was no evidence of negligence on ou the part of doctor and after operation petitioner was not vigilant and careful. There was no evidence that doctor had not performed the operation and had C not taken reasonable degree of care and skill. It has also come on record h that as per medical science, though sterilization operation is effective ig method of contraception, yet there cannot be any guarantee of success in H every case. Since, the doctor was not found negligent, the liability cannot be fastened to pay damages.
Learned Govt. Advocate has also placed reliance on the judgment of Division Bench of this Court in case of Jacob Methew Vs. State of Punjab and others as reported in (2005)6 SCC 1 in this regard wherein Hon'ble Division Bench of this Court has held that for claiming compensation a burden always raise on the claimant to prove that the Doctors were negligent in performing the operation.
Similarly reliance has been placed on the judgment of Hon'ble Supreme Court in case of State of Punjab Vs. Shiv Ram and others as reported in (2005)7 SCC 1, wherein three judge Bench of Hon'ble Supreme Court has considered the case of failure of sterilization operation and the question that when such claim is actionable. Hon'ble Supreme Court held that the claim in tort in such cases can be sustained only if there was negligence on the part of surgeon in performing surgery and not on account of birth. The proof of negligence shall have to satisfy Bolam's test. Merely because the women having undergone a sterilization operation became pregnant thereafter and delivered a child, the operating surgeon or his employer cannot be held liable on account of the unwanted pregnancy or unwanted child. Failure of operation due to natural causes, no method of sterilization being foolproof or providing 100% guaranty of success.
sh Hon'ble Supreme Court also considered the provisions of Section 3(2) read e with Explanation (II) of Medical Termination of Pregnancy Act, 1971, ad according to which medical termination of pregnancy in such cases is Pr permissible. In this regard number of textbook of gynecology is referred.
In the present case such aspect cannot be examined in summary a jurisdiction of writ petition, and it appears that this petition has been hy cleverly worded so to in fact seek second direction of not to act on the ad disqualification erred by the petitioner and her husband on account of birth of third child. This petition in the opinion of this Court is not maintainable M and, hence it fails and is dismissed inasmuch as admittedly petitioner had of discovered the fact of third pregnancy on 27.05.2017, birth of third child had taken place on 06.11.2017, therefore it was open to the petitioner to rt have sought termination of pregnancy.
ou (VIVEK AGARWAL) C JUDGE h ig H shanu SHANU RAIKWAR 2018.04.03 18:58:46 +05'30' 11.0.8