Delhi District Court
Smt. Nirmala vs Girdhari Lal Maternity Hospital on 16 May, 2008
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE: DELHI
RCA No. 49/2005
Smt. Nirmala
W/o Shri Mahabir
R/o Village Vidla,
P.O. Vidlan,
Distt. Sonepat (Haryana) ...Appellant
Versus
1. Girdhari Lal Maternity Hospital
Ajmeri Gate, Delhi,
Through its Medical Supdt.
2. Municipal Corporation of Delhi
through its Commissioner,
Town Hall, Chandni Chowk,
Delhi110 006 ...
Respondents
Date of Institution :20.04.2005
Date of reserving the Order :03.05.2008
Date of Decision :16.05.2008
: J U D G M E N T :
: 1 :
Vide this common order I propose to dispose off the appeals bearing No. 49/2005 and 59/2005 filed by Smt. Nirmala Devi and by Girdhari Lal Maternity Hospital respectively, against the judgment and decree dated 10.1.2005 awarding a sum of Rs.10,000/ to the plaintiff Nirmala Devi against the defendant Girdhari Lal Maternity Hospital alongwith interest @ 18% per annum from the date of institution of the suit till the date of its realization on account of medical negligence. The brief facts of the case are as under:
Smt. Nirmala Devi is stated to be a housewife residing alongwith her husband Sh. Mahavir and three children at village Vidlan, District Sonepat, Haryana and coming from lower middle class family. Pursuant to a massive advertisement issued by the Government of India for a need of smaller family since Nirmala and her husband could not afford the third child they approached : 2 : the defendant Girdhari Lal Maternity Hospital for undergoing sterilization to prevent the birth of any more child. Girdhari Lal Maternity Hospital is stated to be getting an appropriate grant for furtherance of government policy for sterilization. Nirmala aborted 3 ½ month pregnancy and thereafter got sterilized in the hospital on 4.3.1985 where she was also issued a certificate on 5.3.1985 an aspect on which there is no dispute. According to Nirmala, she learnt that she has conceived with third child despite sterilization on which she went to the Girdhari Lal Maternity Hospital where no medical examination was conducted on her earlier and later when she was examined the doctors are alleged to have taken an indifferent, negligent and callous attitude and failed to take remedial action due to which negligence on the part of the doctors she delivered the third male child on 28.8.1987. She, therefore, approached the court : 3 : for damages for a sum of Rs.1,05,000/ in April 1989 and in support of her case examined one Smt. Bharto the Nurse who had removed her stitches given to her at the time of sterilization and has also produced her Identity Card which is Ex.PW1/1 issued to her from the hospital at Vidlan Sonepat and herself as PW2. The defendant before the Trial Court Girdhari Lal Maternity Hospital has examined Dr. Saroj Chugh and Dr. Mamta Gupta, the Gynecologists who had conducted the Laptroscopic Sterilization operation upon Nirmala on 4.3.1985 as their witnesses. Vide judgment and decree dated 10.1.2005 the Ld. Trial Court after deciding the issue nos. 1, 2 and 3 in favour of the plaintiff awarded token damages of Rs.10,000/ to Nirmala by holding that despite having came to know about the pregnancy after sterilization the plaintiff did not take steps for termination of pregnancy and gave birth to the male child while she was already : 4 : having two male children and hence, despite the fact that the defendant might be held for the negligence yet the plaintiff Nirmala is only entitled to token damages of Rs.10,000/ alongwith interest @ 18% per annum from the date of institution till the realization of damages. Now the plaintiff before the Trial Court Smt. Nirmala and the defendant no. 1 Girdhari Lal Maternity Hospital have both approached this court by way of appeals wherein on one hand Nirmala is seeking an enhancement of the damages awarded to her whereas on the other hand the defendant no. 1 before the trial court i.e Girdhari Lal Maternity Hospital is seeking setting aside the order of the Ld. Trial Court awarding such damages on the grounds stated in the appeals.
It is an admitted case that Nirmala Devi is a housewife coming from a lower middle class family and there is nothing on record to show the extent of her : 5 : qualification or literacy level. The case of the plaintiff Nirmala is that she had suffered immense mental agony and physical pain on account of negligence of the defendant hospital since despite being operated upon and taking necessary precautions she gave birth to a third male child which was due to sheer callousness and negligence of the hospital which negligence completely defeat the high priority scheme of family planning in India. According to Nirmala she had undergone the sterilization operation so that she is able to bring up her two children in a satisfactory manner by giving them necessary comforts and decent education which her financial position would permit and it was beyond her means to bring up a third child which they could not afford to do, despite which the defendant showed total indifference and negligence.
The case of the hospital i.e defendant before the : 6 : trial court is that the plaintiff Nirmala was herself guilty of contributory negligence. An alternative argument has also been advanced that despite having taken necessary care and precautions the case of Nirmala was one of the rare cases of failure of the operation of which there are always some chances and for which the defendant hospital cannot be made liable.
On the other hand the counsel for Nirmala has argued that the doctors of the hospital have failed to exercise reasonable degree of care and even when Nirmala had gone to the Girdhari Lal Maternity Hospital when she felt that she had become pregnant despite the sterilization conducted on her, no doctor attended to her. It is argued that when she went again to the hospital she was given the tables to develop blood saying that she was very week which was done even without checking her. Thereafter when she found that she was pregnant the : 7 : doctors had scared her away by stating that abortion could be dangerous which according to the Ld. Counsel for Nirmala is a clear case of negligence of the doctors of the hospital. It is pointed out by the Ld. counsel for Nirmala that the hospital has deliberately not placed on record the file nor proved the same to show that they had taken all necessary care while conducting the operation on Nirmala for which an adverse inference is liable to be drawn. It is also pointed out that on the one hand there is oral testimony of the doctors stating that they had issued instructions to the plaintiff Nirmala whereas on the other hand there is testimony of the plaintiff Nirmala wherein she has deposed that no instructions had been given to her. It is further argued that since the record of the hospital have not been placed before this court, the court is only required to draw the conclusion on the basis of the circumstantial evidence adduced by the plaintiff.
: 8 : The aspect of sterilization operation having been conducted upon Nirmala Devi has not been disputed. It is also not disputed that a male child was born to Nirmala even after the said operation on 28.8.1987 whose date of birth certificate is Ex.PW1/2. The entire medical record and the file of the plaintiff Nirmala was in the possession of Girdhari Lal Maternity Hospital which has not been produced before the trial court and the doctors who have been examined by the defendant have no given any reasons for non placing the said records before the court. The doctors have also not given sufficient explanation for failure of sterilization of both the fallopian tubes of the ovary of Nirmala though the Ld. counsel has in support of his contentions submitted that in some cases, despite all necessary care and caution the chances of failure of the laproscopic operation are possible. In her examination in chief Nirmala has specifically deposed that her husband : 9 : had been earning Rs.300400/ per month at the relevant time when they were already having two children before the operation and being in financially tight position she had gone by the recommendation of the doctors at Nangloi dispensary and a Nurse Ms. Sarla when she was operated and aborted and thereafter sterilized. According to the plaintiff Nirmala she had been advised to get her stitches detached from the nearby dispensary where she lives and accordingly the same was got removed by Ms. Bharto which fact has been duly proved by witness Bharto who has been examined as PW1. According to Nirmala, she had never been advised or warned about the after effects of the operation and the precautions after the sterilization operation nor she was called to the hospital and according to her when she asked the doctors they told that she need not to attend the hospital. It is further evident from the record that Ms. Sarla, the Nurse at : 10 : Nangloi dispensary could not be examined as she was reported to have expired. The plaintiff Nirmala has also in her testimony stated that the child, who was born to her after the sterilization operation namely Satish was at the time of her deposition, studying in class 7th in Senior Secondary School, Village Vidlan, Sonepat, Haryana for which she was paying Rs.23/ as his fees and proving two uniforms one for summer and other for winter which costs her Rs.500/. She has also deposed that though the child was healthy but he fell sick while he was in 4th class, his treatment slip and discharge card are Ex.PW2/5 and PW2/6 has also been placed on record for which she has spent Rs.6,000/ to Rs.7,000/. According to Nirmala she had spent Rs.400500/ per month on her third child and she could not teach him in a good school and is facing hardships. She has also stated that the said child had suffered a foot fracture about 23 years ago when he had : 11 : to be got treated.
Before proceeding with the facts of the present case, it is necessary to examine the law in respect of medical negligence and grant of damages in case, if the sterilization operation performed by the doctor is a failure. The opinion on the question as to whether the doctor would be liable to pay for all the expenses is divergent.
In the case of Udale V. Bloomsbury Area Health Authority, (1983) 2 All ER 522, where plaintiff had undergone an operation for laproscopic sterilization by the doctor of the defendant authority and owing to negligence of the defendant doctor, the operation was not successful and the plaintiff became pregnant and she claimed damages on the following grounds:
i) pain and suffering;
: 12 :
ii) loss of earnings;
iii) cost of enlarging family home &
iv) cost of bringing up child up to the age of 16 years.
The Court granted the damages in respect of the head no's (i) & (ii), but however, which declined to grant any damages under the head no's (iii) & (iv) i.e for enlarging the family house and for bringing up the child holding that it was contrary to public policy that no damages could be recoverable arising from the cause of coming into world of a healthy normal child.
However, in the case of Thake V. Maurice, (1984) 2 All ER 513, the Court took a contrary view and after carefully considering the ruling in the case of Udale laid down that the Award of damages is not contrary to public policy inspite of the fact that the parents were absolutely delighted and were happy with the unwanted normal : 13 : healthy child.
Justice Peter Pain in the case of Emeh V. Kensington and Chelsea and Westminister Area Health Authority, (1984) 3 All ER 1044 awarded damages in the pain, suffering and loss of amenity which would have been given to the congenitally abnormal child over the years and observed as under :
If a woman, wishes to be sterilised and in legal way causes herself to be operated on for the purpose, I can, for my part, see no reason why, under public policy, she should not recover such financial damages as she can prove she has sustained by the surgeon's negligent failure to perform the operation properly, whether or not the child is healthy.
The Hon'ble Supreme Court in case of State of : 14 : Haryana V. Santra 2000 ACJ 1188 (SC) put their seal of approval on the principle that in case of medical negligence in performing the family planning operation, damages can be awarded by making the following observations :
Having regard to the above discussion, we are positively of the view that in a country where a population is increasing by tick of every second and the Government had taken up the family planning as an important programme for the implementation of which it had created mass awakening for the use of various devices including sterilization operation, the doctor as also the State must be held responsible in damages if the sterilization operation performed by him is a failure on account of his negligence, which is directly : 15 : responsible for another birth in the family, creating additional economic burden on the person who had chosen to be operated upon for sterilization.
In the case of Santra, the Hon'ble Supreme Court had observed that she was a poor lady, who was already having seven children and was under considerable monetary burden. The unwanted girl child born to her had created additional burden to her on account of the negligence of the doctor, who performed sterilization operation upon her and therefore, she is clearly entitled to claim damages from the State to enable her to bring up the child at least till she attains puberty.
In the case of Shobha V. Government of NCT of Delhi, in 2004 ACJ 1479, where the petitioner had undergone a tubectomy operation but became pregnant : 16 : after about eleven months and thereafter, when she visited the hospital, after in the early stages of pregnancy, she was informed that she was not pregnant, but after two months, the pregnancy became apparent, she requested the doctor for abortion but was advised against it as it was dangerous for her life. It was held by the Court that there was no contributory negligence on the part of the petitioner as there was no undue delay in approaching hospital authorities since no attempt has been made to see as to whether sterilization operation was conducted properly and why she became pregnant. Hence, under these circumstances, the State was held liable for the compensation as one can deduce that standard of reasonable care and expected of the doctor was not taken.
In the aforesaid case, the State was directed to pay a sum of Rs.3,25,000/ for maintenance, upbringing, higher education and marriage of child plus free school : 17 : education, books, stationery and uniform.
Similarly, in the case of Rukmani V. The State of Tamil Nadu & Anr. 2003 ACJ 1748, when the petitioner even after the sterilization operation in a Government hospital in October, 1988 and delivered her third child in 1992 and fourth in the year 1995. It was held that she is entitled to damages for unwanted pregnancies on the ground of the medical negligence on the part of the doctors.
It is evident from the aforesaid rulings that the Courts in different countries are not unanimous in allowing the claim for damages for rearing up the unwanted child born out of a failed sterilization operation. In some case, the Courts refused to allow this claim on the ground of public policy, while in many others, the claim was offset against the benefits derived from having a child and the pleasure in rearing up that child. However, : 18 : in other cases if the sterilization was undergone on account of social and economic reasons, particularly in a situation where the claimant had already had many children, the Court allowed the claim for rearing up of the child.
I have considered the relevant case law and the testimonies of the various witnesses and the material of record. It is settled preposition of law that the essential components of negligence are the existence of a legal obligation or a duty, breach of such a duty and the resultant damage. In case of alleged medical negligence it is necessary for the plaintiff to prove that the doctor did not exercise with reasonable care and caution in a given case the skill he did possess and the standard to be applied for judging whether the person is a negligent or not would be that of a reasonable man exercising ordinary skill in : 19 : the profession. As per the Medical Termination of Pregnancy Act 1971 the said termination of pregnancy would be legal and valid only if it is so covered under the grounds so provided under the Act and not otherwise. It is evident from the record that both the doctors who had operated upon Nirmala were professionally qualified though the medical record in respect of the plaintiff which was in possession of the defendant has not been placed before the court. Since the plaintiff had made certain allegations of negligence it was necessary for the defendant hospital to have duly rebutted the same by producing the medical records of Nirmala which were in their possession which they have not done and therefore an adverse inference is liable to be drawn against Girdhari Lal Maternity Hospital. It is an admitted case that Nirmala could not be operated after she had become pregnant since she was at the advance stage of pregnancy : 20 : as it could have been dangerous for her life. Even otherwise abortion is illegal unless it is covered under the grounds so provided under the Medical Termination of Pregnancy Act and there is nothing on record to show that the case of Nirmala was covered under the grounds so provided in the Act.
Ours is a developing country, where majority of the people live below the poverty line. Keeping in view the serious problem of population explosion, the public policy warrants and demands that adequate measures be taken by the people with the government playing a major role for checking the growth of this population which justifies the adoption and implementation of the family planning scheme successfully more so, because our country has almost reached the saturation point in so far the resources are concerned. The principles on the basis of which, the damages have not been allowed in other : 21 : countries either on account of public policy or on account of pleasure to the parents in having a child being offset against the claim of damages cannot be strictly applied to the 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 as in the present case to implement the State sponsored family planning programmes and policies. As held by the Delhi High Court in the case of Sobha vs. Government of NCT of Delhi (Supra) 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 like Nirmala in the present case whose husband had been earning about Rs.400 - Rs.500/ per month cannot be denied the claim for damages on account of medical negligence.
No doubt, the parents are under moral and : 22 : statutory obligation and liability to maintain their minor children but the statutory liability for maintaining their children would not operate as a bar in claiming damages on account of tort of medical negligence in not carrying out the sterilization operation with due care and responsibility. The statutory as well as personal liability of the parents to maintain their children arises on account of the principles that if a person has begotten a child, he is bound to maintain that child. The claim for damages on the contrary is based upon the principle of compensation by way of damages for a civil wrong.
So far as the case of medical negligence is concerned, in a case where a person is guilty of negligence perse, no further proof is required, but in a case where this negligence is not evident, then it is necessary to link the injury sustained with the medical treatment and established that the standard of care as required in undertaking the case, : 23 : deciding the treatment and administration of that treatment was not taken.
In the present case the plaintiff Nirmala Devi who came from the lower middle class family and had got her laproscopic operation done from the competent doctors of the government hospital i.e the Girdhari Lal Maternity Hospital because her husband who was earning Rs.400 500/ per month was not in a position to bear the expenses for additional child. Despite the same the child Satish was born. Whether the failure was on account of negligence of the hospital which is the instrumentality of the State or the case of Nirmala was one of rare cases of failure of the operation, has not been established only on account of the failure of the hospital to produce before the trial court the medical records of Nirmala which was in their possession for which an adverse inference is being drawn and the contributory negligence so attributed to Nirmala does not : 24 : stand established. Therefore, under these circumstances it becomes a bounded duty of the State to meet the expenses to bringing up of this child who even otherwise has a right of education as per the provisions of Article 41 of the Constitution of India and there being a corresponding constitutional obligation upon the government to provide free and compulsory education to the child (Article 41 of the Constitution of India) and a duty upon the State to raise the level of nutrition and standard of living to improve public life (Article 47 of Constitution of India) for which reason the state cannot evade its responsibility towards the said child.
No doubt, the public policy requires that the child Satish should not learn that the Court had declared its life to be a mistake, yet on the other hand, the pain and suffering caused due to discomfort associated with unwanted pregnancy as a result of failed sterilization operation and : 25 : with birth of the child and financial loss caused on account of the expenses for the unwanted child in order to feed, clothe, educate and care for the child till he becomes a major are the conditions which cannot be ignored for which damages can be awarded.
In the present case the child Satish was born on 28.8.1987 and according to the testimony of PW1 she is incurring the expenses @ Rs.400500/ per month on his books, stationery and other miscellaneous expenses which would include the loss of earning against enlarging the family which may include the cost of bringing up the child, educational expenses, food, health etc. Hence the liability from the date of birth of the child till the time of his attaining the 18 years of age @ Rs.400/ per month comes to Rs.86,400/. Further, the plaintiff Nirmala Devi has also claimed damages for the pain and suffering caused to her from the unwanted child despite the sterilization operation.
: 26 : Therefore, keeping in view the economic and social background of the plaintiff Nirmala and other circumstances as discussed herein above, in my considered opinion the interest of justice would be met by enhancing the damages so awarded to the plaintiff Nirmala from Rs.10,000/ to Rs.1,00,000/ of which Rs.13,600/ is being awarded to Nirmala on account of pain and suffering caused to her due to birth of unwanted child and Rs.86,400/ is being awarded as the expenses of the child born due to the failed sterilization operation alongwith the interest on the said amount @ 10% from the date of institution of suit till the realization of the said amount in terms of which the judgment and decree dated 10.1.2005 is accordingly modified. It is clarified that since the specific negligence attributed to the doctors who had operated Nirmala have not been proved, hence the damages so awarded shall not liable to be recovered from the doctors.
: 27 : Both the appeals bearing no. 49/2005 and 59/2005 are accordingly disposed off. Parties to bear their own costs. Decree sheet be prepared accordingly. Trial court record be sent back alongwith the copy of this order. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 16.5.2008 Addl. District Judge: Delhi : 28 : Nirmala vs. Girdhari Lal Maternity Hospital 16.5.2008 Present: Sh. Y.P. Laroya, counsel for the appellant.
None for the respondent.
Vide my separate detailed order dictated and announced in the open court, but not yet typed, the appeal is disposed off. Parties to bear their own costs. Decree sheet be prepared accordingly. Trial court record be sent back alongwith the copy of this order. File be consigned to Record Room.
ADJ: DELHI 16.5.2008 : 29 :