Kerala High Court
Thaikkandy Chandri vs The District Medical Officer Of Health on 30 June, 2000
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938
AFA.No. 2 of 2006
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AGAINST THE JUDGMENT IN AS 145/1992 DATED 30-06-2000
AGAINST THE JUDGMENT IN OS 174/1988 of PRL.S.C.,THALASSERY
APPELLANT/PLAINTIFF:
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THAIKKANDY CHANDRI,
W/O.PARAKKANDY NANU, MAMAGOTTIDAM,, THALASSERY.
BY ADV. SRI.T.A.SHAJI
RESPONDENTS:
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1. THE DISTRICT MEDICAL OFFICER OF HEALTH
KANNUR, P.O.KANNUR.
2. THE SUPERINTENDENT, GOVERNMENT HOSPITAL,
THALASSERY.
3. THE SUPERINTENDENT,
DISTRICT GOVERNMENT, HEAD QUARTERS HOSPITAL,, KANNUR.
* 4. DR.M.B.JUBILEE, ASSOCIATE PROFESSOR (deleted)
OF OBSTETRICS AND GYNECOLOGY MEDICAL COLLEGE,, CALICUT.
5. THE SUPERINTENDENT, GOVERNMENT MEDICAL
COLLEGE HOSPITAL, CALICUT.
6. THE STATE OF KERALA, REPRESENTED BY
THE DISTRICT COLLECTOR, KANNUR.
7. THE UNION OF INDIA,
NEW DELHI REPRESENTED BY THE SECRETARY TO THE,
GOVERNMENT OF INDIA, DEPARTMENT OF HEALTH AND, FAMILY
WELFARE NIRMAL BHAVAN, NEW DELHI-110 011.
*R4 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS
PER ORDER DATED 14-7-2006 IN IA 1146/2006
BY SENIOR GOVERNMENT PLEADER SRI.N.C.THANKACHAN
THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON
27-08-2016, THE COURT ON 27-09-2016 DELIVERED THE FOLLOWING:
THOTTATHIL B.RADHAKRISHNAN
ANU SIVARAMAN, JJ.
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A.F.A.No.2 of 2006
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Dated this the 27th day of September, 2016
JUDGMENT
Anu Sivaraman, J.
1.This is an appeal filed by the appellant as an indigent person against judgment in A.S.No.145 of 1992 of this Court confirming the judgment of the Sub Court, Thalassery in O.S.No.174 of 1988.
2.The plaint contentions were as follows:-
The appellant/plaintiff who was a manual labourer was supporting her family consisting of an ailing husband and three minor children. She was induced to undergo sterilisation operation to stop further gestation in order to improve her health as also the welfare of her family by the officers of the Family Welfare Department of the Government. Due to the inducement, she subjected herself to sterilisation operation on 02.10.1982 at Government Hospital, Thalassery, after her third confinement. Later, on seeing symptoms of pregnancy, she went to the Government Hospital, Thalassery from where she A.F.A.No.2/06 2 was directed to the Government Head Quarters Hospital, Kannur for necessary medical attendance. There, evacuation and second sterilisation operation were conducted. The second operation caused her much discomfort and she could not attend to her normal avocation of life due to severe pain.
Later in November, 1985, she was again taken to the Government Hospital, Thalassery on account of bleeding. She was then referred to the Medical College Hospital,Kozhikode, where she was found to be pregnant again. It was found to be a case of ectopic or tubular pregnancy in a ruptured condition necessitating an emergency surgery. After treatment, she was discharged from the hospital. According to her, after the operations, she became permanently disabled and was not in a position to earn her livelihood or lead a normal life. Alleging that her incapacitation was due to the negligence in conducting the post-partum sterilisation operation in the Thalassery Government Hospital in 1982 and again in the Kannur Hospital in 1985 and also in the Medical College Hospital, Kozhikode, she filed the suit before the Sub Court, Thalassery claiming Rs.1 lakh as damages.
A.F.A.No.2/06 3
3.In the written statement, the 4th defendant, who was the Associate Professor of Obstetrics and Gynaecology, Medical College Calicut, contended that she had not performed any surgery on the plaintiff and that she had been treated for ruptured ectopic pregnancy in November, 1985 at Medical College Hospital and there was no negligence or carelessness in her treatment.
4. Respondents 1 to 3, 5 and 6 filed written statements admitting that the plaintiff had undergone post partum sterilisation after her third delivery at the Government Hospital, Thalassery and had been discharged on 08.10.1982. Partial salpingectomy was done on the left side. The right tube was adherent to the pelvic wall and the fimbrical ends could not be released. So modified Pomeroy's method was done on the right side. In such cases, there are chances of failure of sterilisation even when the operation is done with utmost care and caution. The plaintiff was again admitted in the Kannur Headquarters Hospital on 05.05.1985. She had bleeding on account of an abortion and A.F.A.No.2/06 4 mini-laparotomy was done after treating for wound infection. She was discharged on 24.05.1985 in normal condition. In November, 1985 the plaintiff again developed bleeding with dyspnea and abdnomial pain and was admitted in the Government Hospital, Thalassery on 05.11.1985. On 7.11.1985 she was referred to the Medical College Hospital. As she had ruptured ectopic, she underwent treatment in the Medical College Hospital upto 15.11.1985 and was discharged in normal condition. The allegations about negligence on the part of the doctors was denied. It was contended that failure of sterilisation was possible even if there was no negligence. The plaintiff's case that she had become an invalid due to the surgical operations was also denied and the claim for compensation was resisted as highly excessive.
5.As many as eight issues were framed by the trial court. PWs.1 to 4 were examined and Exts.A1 to A14 were marked by the plaintiff. The defendants marked Exts.B1 to B5 and examined DW1 to DW3. Considering the pleadings and the materials on record, the trial court held that the failure of the sterilisation A.F.A.No.2/06 5 procedure was a fact which could not be denied. Considering the evidence regarding the procedures carried out in great detail, it was found that there is no evidence to show that any other doctor of normal skill would have given a different treatment to the appellant. Though it was contended on behalf of the appellant that the Doctrine of res ipsa loquitor was applicable, relying on the observations by Lord Denning on 'The Discipline of Law' as well as a decision of a Division Bench of this Court reported in Usha v. G.P.Namboothiri [1985 KLT 970], it was held that there was no scope for importing the Doctrine of res ipsa loquitor to the situation. Though it was found that the deterioration of the health of the plaintiff was on account of the repeated surgeries undergone by her, no compensation was awarded and the suit was dismissed without costs.
6. In appeal, a learned single Judge of this Court held that there was no evidence of any negligence on the part of the doctors in the Medical College Hospital, where the third procedure was performed. However, with regard to procedures performed at A.F.A.No.2/06 6 Thalassery and Kannur Government Hospitals, it was found that the failure of sterilisation procedure had resulted in one abortion and a second ectopic pregnancy and the long hospitalisation to recover from emergency surgery for removal of the ruptured tubular pregnancy. This having resulted in her incapacitation at least for some period, as also taking into account the pain and suffering and trauma undergone, the first appellate court awarded an amount of Rs.5,000/- as compensation for pain and suffering, another Rs.5000/- for temporary incapacitation and Rs.2500/- for hospitalisation with 6% interest from the date of suit till realisation. Aggrieved by the limiting of the compensation, the plaintiff is in appeal.
7.Heard Sri.Gracious Kuriakose, learned Senior Counsel for the appellant and Sri.N.K.Thankachan, the learned Government Pleader appearing for the respondents.
8.It is an admitted case that the appellant was admitted in the Thalassery Government Hospital for delivery. After the delivery, she underwent post-partum sterilisation on A.F.A.No.2/06 7 02.10.1982 and was discharged on 08.10.1982. She was again admitted in the Kannur Head Quarters Hospital on 05.05.1985 with severe bleeding on account of an abortion. It has come out in evidence that mini laparotomy was done after treating for wound infection and she was discharged on 24.05.1985. On 05.11.1985 she was again admitted in the Government Hospital, Thalassery with bleeding with dyspnea and abdominal pain. She was referred to the Medical College Hospital on 07.11.85 where she was diagnosed as having a ruptured ectopic pregnancy. She underwent treatment including surgery and was discharged on 15.11.85.
9.The learned single Judge found that the case of the appellant would clearly come under the category of failed sterilisation procedure. Relying on a decision of the Apex Court in State of Haryana v. Santra [(2000) 5 SCC 182], where it was held that the State was liable to maintain the unwanted child in a case of a failed sterilisation where the procedure was undergone by the women concerned at the instigation of the State and on its assurance of the safety and reliability of the A.F.A.No.2/06 8 procedure, the learned single Judge held that there was an element of negligence involved and awarded compensation of Rs.12,500/-.
10.We have considered the contentions and the evidence on record. It is clear that the appellant had undergone a sterilisation procedure with an intention to prevent further pregnancy. The procedure was undergone as early as on 02.10.1982. It has come out in evidence that while salpingectomy was done on her left fallopian tube, the right tube was found adhering to the pelvic wall and the fimbrical ends could not be released and therefore modified Pomoroy's method was done on the right side. It is stated that there are chances of failure of sterilisation in such cases even where the procedure is done with utmost care and caution. This is stated as the reason for her further pregnancy and spontaneous abortion on 05.05.1985. It is stated that she was admitted in Kannur Head Quarters Hospial on 05.05.1985 and mini- laparotomy was done after treating her for wound infection. Thereafter, she was discharged from hospital on 24.05.1985. A.F.A.No.2/06 9 On 05.11.85 she was again admitted to the Government Hospital, Thalassery with suspected ectopic pregnancy and was referred to the Medical College, Hospital, Kozhikdoe on 07.11.1985. There she was treated for ruptured ectopic pregnancy and was discharged on 15.11.1985.
11. It is clear that the sterilisation procedure repeatedly performed on the appellant were unsuccessful. From the evidence on record, it is also evident that the real chance of a failure of the procedure had never been made known to the appellant. In State of Kerala v. Santa [2015(1) KLJ 509], a Division Bench of this Court, of which one of us [Thottathil B.Radhakrishnan (Judge)] was a party, has held that where a woman underwent sterilisation surgery in a Government Hospital and conceived again due to the failure of the surgery, the Doctrine of res ipsa loquitor would clearly apply. It was further held that in a case of failed sterilisation surgery conducted in Government Hospital or under Government programs, the failure of such a procedure, even one not amounting to medical negligence, would also fall under State A.F.A.No.2/06 10 liability and would give rise to rights in favour of such victims to sue for enforcement of such liability against the State. This Court had held as follows:
"Though it would have been natural for the economically and therefore socially marginalised couple which led the plaintiff to offer herself for the sterilisation process, it cannot be ignored that she was induced by the Government through its propaganda, as part of the national need for population control and thereby to empower the wholesome growth of this Nation. Therefore, where the person involved undergoes the procedure of sterilization on the advice in public domain that it is a foolproof method, natural failure of a sterilization procedure; even one not amounting to medical negligence; would also fall under State liability in the context of balancing the equations between Fundamental Duties, Directive Principles of State Policy and Fundamental Rights, when the societal interest also gets involved while ensuring the sterilization of a person in cases of this nature. In this constitutional conspectus, in cases like the one in hand, there is a constitutional responsibility for the Nation to support the victims of such a situation. This responsibility arises out of the sufferance of the individual citizen for the common good. This is the constitutional responsibility of a socialist democratic republic where common good and welfare guides. It, therefore, is a constitutional responsibility of the Nation. It gives rise to rights in favour of such victims. When such constitutional responsibility remains undischarged, it amounts to breach of legal duty to A.F.A.No.2/06 11 compensate. As a corollary, it results in a legal liability, which is absolute in nature. The liability in this regard will rest absolutely on the State, in the legal perspective, in accordance with the Constitution of India and the laws. The liability to make good the damage in such a situation would, therefore, fall as liability on the State, notwithstanding that no element of negligence by the doctor who performed the surgical procedure is established. The citizen in sufferance, the victim, would thus be entitled to sue for enforcement of such liability of the State."
12.Considering the evidence adduced in the instant case, we are of the firm view that the failure of the sterilisation procedure repeatedly would give rise to the applicability of the Doctrine of res ipsa loquitor in the instant case. In the absence of evidence to prove that the failure of the procedure was not attributable to any negligence on the part of the doctors who performed the surgery, the State has the primary responsibility, on account of the vicarious liability attributable through the negligence of the doctor who performed the surgery. Viewed from the angle of the constitutional liability of the State as held in Santra's case (supra) and Santa's case (supra) the State would be liable to A.F.A.No.2/06 12 compensate the appellant for the pain and suffering as well as the temporary incapacity undergone by her as also for the loss of a foetus, albiet unwanted. We are therefore of the view that an amount of Rs.12,500/- granted as compensation by the learned single Judge is inadequate. Taking note of the liability of the State to compensate the appellant for an unwanted pregnancy as well as the pain and suffering and the incapacity undergone by her, we fix a sum of Rs.80,000/- as compensation to be paid by the State to the appellant. The said amount should carry interest @ 6% per annum from the date of the suit till realisation. Any amounts, already paid, pursuant to the appellate decree shall be given credit to.
13.Insofar as payment of court fee is concerned, we are of the view that, having regard to the nature and quality of the litigation and the appellant/plaintiff being an economically marginalised woman, she is entitled to an order exempting her from paying any court fee in the suit, in the first appeal and in this AFA. We, therefore, in exercise of jurisdiction under A.F.A.No.2/06 13 Order XLI Rule 33 read with Order XXXIII Rule 11(b) C.P.C, grant exemption to the appellant/plaintiff from payment of court fee in the suit, in the first appeal and in this AFA before this Court.
In the result, the impugned decree is modified as follows:-
i. The appellant/plaintiff is allowed to recover an amount of Rs.80,000/- (Rupees eighty thousand only) as compensation from the sixth respondent/sixth defendant State of Kerala with interest @ 6% per annum from the date of the suit till realisation. Any amount already paid pursuant to the impugned judgments/decree shall be given credit to, in accordance with law.
ii.The appellant/plaintiff is exempted from paying any court fee in the suit, in the first appeal and in this appeal, and no amount shall be recovered from her towards court fee. This direction is issued in supersession of any direction to the contrary as may be contained in the impugned decree and judgments.A.F.A.No.2/06 14
iii.The appellant/plaintiff is entitled to recover costs, which we quantify at Rs.8,000/-(Rupees eight thousand only) inclusive of advocates' fee, from the sixth respondent/sixth defendant State of Kerala.
sd/-
Thottathil B. Radhakrishnan, Judge sd/-
Anu Sivaraman,Judge sj /True Copy/ P.A. to Judge