Madhya Pradesh High Court
The State Of M.P. vs Smt.Farookh Naaj on 8 August, 2017
F.A. No.9/2000 1
HIGH COURT OF MADHYA PRADESH :
BENCH AT INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VED
PRAKASH SHARMA)
F.A. No.09/2000
State of M.P. & Anr. ... Appellants.
Vs.
Smt. Farookh Naaz ... Respondent.
-x-x-x-x-x-x-x-x-x-x-x-
Shri Swapnil Sharma, learned Public Prosecutor for the
appellants-State.
None for the respondent.
-x-x-x-x-x-x-x-x-x-x-x-
ORDER
(Passed on 8th August, 2017) This appeal is directed against judgment and decree dated 26.10.1999 passed by District Judge, Shajapur in Civil Suit No.5A/1998, whereby compensation to the tune of Rs.1,13,000/- has been granted in favour of respondent No.1 along with interest and cost.
02. Respondent/plaintiff filed a suit for recovery of Rs.2,51,000/- as damages claiming herself to be an indigent person under Order 33 CPC on the basis of averments that on 07th November, 1994, around 25 days after the birth of her fourth child, she was operated upon at Civil Hospital, Agar by Dr. G.L. Gupta/appellant No.2 for tubectomy operation. It was averred that F.A. No.9/2000 2 the respondent agreed for tubectomy operation for the purpose of family planning as already having four children, she was not interested in any other child. After operation, certificate (Ex.P/1- C) was issued with regard to tubectomy operation by Primary Health Center, Agar. Allegedly, the respondent was assured by appellant No.2 that operation was successful and she will not conceive in future, however, after the operation, she developed a number of complications and ailments like blood pressure, fever and pain in the abdomen. However, sometimes in 1997, she again conceived and gave birth to a female child on 11.09.1997, thereby indicating that Dr. GL Gupta had committed serious negligence in carrying out the tubectomy operation and that the operation so performed by him because of fault on his part was unsuccessful. The respondent averred that considering the family condition and pecuniary resources, she did not want to have any child, therefore, she had opted for tubectomy operation, but because of failure of operation and consequent birth of the girl child, she has suffered mental and physical agony of having birth of an unwanted child which is bound to put extra financial burden upon her and the family. Accordingly, a sum of Rs.2,01,000/- as future expenses for care and upbringing of the girl child and Rs.50,000/- for pain and suffering was claimed by way of damages.
03. Appellants in their joint written statement did not dispute that on 07.11.1994 the appellant was operated upon by Dr. GL Gupta at Civil Hospital, Agar for tubectomy operation, however, it was denied that there was any negligence/carelessness on the part of Dr. GL Gupta in performing the operation. It was F.A. No.9/2000 3 further submitted that every precaution was taken, while operating upon the plaintiff and while taking her consent for operation the plaintiff/respondent was made aware of the fact that the operation may be unsuccessful also because of variety of reasons and that having pregnancy does not necessarily denote failure of operation. It was averred that the plaintiff/respondent was well aware of the alternative consequences with regard to operation and had willingly signed the consent letter. It was also averred that the respondent/plaintiff never disclosed the factum of her post- operation pregnancy to any doctor in the government dispensary and that if she did not want to have further any child, she ought to have immediately brought the fact of conception immediately to the notice of the doctors, who could have adviced her for going for MTP (Medical Termination of Pregnancy) as per law. Accordingly, a prayer was made for dismissal of the suit.
04. The learned trial Judge framed as many as four issues on the basis of the pleadings of the parties and vide the impugned judgment came to the conclusion that due to negligence/carelessness on the part of the respondent No.2, the tubectomy operation of respondent/plaintiff was unsuccessful and she had given birth to a girl child, therefore, she is entitled to damages to the tune of Rs.1,13,000/-. Accordingly, suit was partly decreed.
05. Challenging the impugned judgment and decree, it is submitted by the appellant/defendants that the same is contrary to law and facts of the case and that the learned trial Court while F.A. No.9/2000 4 passing the judgment has not properly appreciated the evidence on record and failed to consider that plaintiff herself with all the willingness on her part got operated after properly understanding consequences thereof. It is further submitted that while giving her consent for the operation, the respondent/plaintiff was made aware that for certain reasons the operation may turn to be unsuccessful also, however, for that the hospital or the concerned doctor shall not in any manner be liable. The contention is that the respondent delivered a child after about 3 years of the operation, therefore, it cannot be said that the operation was unsuccessful. It is further contended that the respondent after having conceived after operation did not reveal this factum to any of the doctors at the government hospital and her failure in this regard shows that she was interested for the next child, else, if she had informed about the conception then she could easily have been adviced for MTP operation. Accordingly, a prayer is made for setting aside of judgment and decree.
06. None has appeared on behalf of the respondent/plaintiff though duly served.
07. Heard the learned counsel for the appellants and perused the record.
08. It is not a matter of dispute that on 07.11.1994 respondent plaintiff was operated upon at Civil Hospital Agar for tubectomy and that the operation was performed by Dr. GL Gupta (appellant No.2). It is further not seriously disputed that on F.A. No.9/2000 5 11.09.1997, meaning thereby, after around 2 years and 10 months of the tubectomy operation, the respondent/plaintiff gave birth to a child.
09. The plea on behalf of the respondent/plaintiff has been that the birth of the child was result of failure of tubectomy operation performed by Dr. GL Gupta and that the operation failed because of negligence or carelessness on the part of Dr. GL Gupta, however, respondent/plaintiff has neither averred nor brought any evidence before the Court to specifically indicate as to what negligence/lapse was committed by Dr. GL Gupta while performing operation. Learned trial Court on the basis of post operational birth of the child has held that there was negligence on the part of Dr. GL Gupta, however, learned trial Court has not adverted to the application/consent letter Ex.D/1, whereby the respondent/plaintiff was informed that there may be some chances of failure of the operation and in such a situation the government hospital or the surgeon conducting the operation or any other person shall not in any manner be held liable.
10. The legal position with regard to failure of tubectomy operation and sustainability of plea with regard to negligence on the part of surgeon, who conducted tubectomy operation has been considered at length by the apex Court in State of Punjab vs. Shiv Ram & Ors., 2005 SC 3280. Relevant part of the report runs as under:-
"Merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot F.A. No.9/2000 6 be held liable for compensation on account of unwanted pregnancy or unwanted child. The cliam in tort in such cases can be sustained only if there was negligence on the part of the surgeon in performing the surgery and not on account of childbirth. The proof of negligence shall have to satisfy Bolam's test, (1957) 2 AII ER 118, 121 D-F, set out in Jacob Mathew case, (2005) 6 SCC 1, at p.19, para 19. Failure due to natural cases would not provide any ground for a 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 the 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. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. Section 3(2) read with Explanation II thereto, of the Medical Termination of Pregnancy Act, 1971 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.
.......There are several alternative methods of female sterilization operations which are recognized by medical science of today. Some of them are more popular because of being less complicated, requiring minimal body invasion and least confinement in the hospital. However, none is foolproof and no prevalent method of sterilization guarantees 100% success. The causes for failure can well be attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon. Authoritative textbooks on gynaecology and empirical researches which have been carried out recognize the failure rate of 0.3% to 7% depending on the technique chosen out of the several recognized and accepted ones. The technique which may be foolproof is the removal of the uterus itself but that is not considered advisable. It may be resorted to only when such F.A. No.9/2000 7 procedure is considered necessary to be performed for purposes other than merely family planning."
11. From the aforesaid, it becomes clear that birth of a child after sterilization operation by itself is not indicative or cannot be a sole basis to hold that there was negligence on the part of surgeon and unless negligence is pleaded and proved a claim for damages under the law of torts cannot be maintained. The proof of negligence shall have to satisfy Bolam's test (supra). Further where a woman having undergone sterilization operation despite knowledge of conception opts for bearing the child then the child cannot be said to be an unwanted child. Hence, compensation for maintenance and upbringing of such a child cannot be claimed. It has been held that once the woman misses the menstrual cycle, the couple is expected to visit the doctor and seek medical advice. In the instant case, there is neither any pleading nor any evidence that the plaintiff after missing the menstrual cycle visited Dr. GL Gupta or any other doctor of the government dispensary to consult with regard to medical termination of unwanted pregnancy, therefore, it cannot be said that the child born after the operation was unwanted child.
12. The learned trial Court while considering the case has not adverted to the aforesaid factual and legal aspects of the case which have a close bearing on the determination of lis. The finding arrived at by the learned trial Court solely on the basis of the birth of the child that there was negligence on the part of the concerned surgeon in performing tubectomy operation cannot be upheld nor in these premises, it can be said that the respondent/plaintiff is F.A. No.9/2000 8 entitled to damages with regard to birth of the child.
13. In view of the aforesaid, this appeal is hereby allowed and the judgment and decree passed by the learned trial Court are hereby set aside. Parties to bear their own costs.
( VED PRAKASH SHARMA ) JUDGE Soumya/-