Punjab-Haryana High Court
State Of Haryana vs Meena on 3 December, 2014
Author: Hemant Gupta
Bench: Hemant Gupta
1
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
Date of Decision: 03.12.2014
RSA No.3089 of 2003
State of Haryana & others ...Appellants
Versus
Smt. Meena ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Mr. Lokesh Sinhal, Addl. AG, Haryana,
for the appellants.
Mr. N.K.Bibyan, Advocate, for
Mr. Ashwani Talwar, Advocate, for the respondent.
HEMANT GUPTA, J. (ORAL)
The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for recovery was decreed and the plaintiff was awarded a sum of Rs.2 lacs as compensation alongwith interest at the rate of 10% per annum on account of failure of tubectomy surgery.
The following substantial question of law arises for consideration of this Court:
"Whether the birth of a child after performing tubectomy surgery per say proves the medical negligence in surgery?"
The plaintiff filed the suit in forma paupris for recovery of Rs.3,00,000/- on the ground that she has undergone tubectomy surgery on 30.09.1993, but still she became pregnant and a female child born to her on 01.09.1996. The assertion of the plaintiff was that she and her husband could not maintain the newly born baby and that she is in acute depression having born a female child even after the said surgery, therefore, the defendants are liable to VIMAL KUMAR compensate her for negligence in performance of the surgery. 2014.12.09 16:17 I attest to the accuracy and integrity of this document Chandigarh 2
The defendants denied any negligence on the part of the doctor. It is also pointed out that no surety was given to her that she would never be pregnant. Sterilization is a method, but not a 100% guarantee to check conception. Even in the best hands, .5 to 2% sterilization cases failed. It is also alleged that the birth of 4th child has taken place due to the negligence of the plaintiff herself, as she did not disclose about the pregnancy to the medical authority. If the plaintiff had done so, she would have been advised for removing the unwanted pregnancy by using medical termination methods.
The trial Court after considering the evidence led by the plaintiff, which included the statement of plaintiff as PW-3 and tubectomy certificate Ex.PW-2/A and that of the defendants, who examined Dr. H.S.Randhawa, Medical Superintendent, decreed the suit awarding damages to the tune of Rs.2 lacs along with interest at the rate of 10% per annum from the date of filing of the suit. In appeal, the first Appellate Court affirmed the findings recorded by the trial Court.
Before this Court, learned counsel for the appellant relied upon a larger Bench judgment in State of Punjab Vs. Shiv Ram & others (2005) 7 SCC 1 as well as a judgment reported as State of Haryana & others Vs. Raj Rani (2005) 7 SCC 22 to contend that operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child.
On the other hand, learned counsel for the respondent contends that the failure of tubectomy surgery, which led to birth of a female child, is deemed to be a negligence conduct by the medical professionals. Therefore, both the Courts below have rightly decreed the suit.
After hearing learned counsel for the parties for some time, I find that the substantial question of law, as framed above, stands concluded in favour VIMAL KUMAR 2014.12.09 16:17 I attest to the accuracy and integrity of this document Chandigarh 3 of the appellant by the larger Bench in Shiv Ram's case (supra), wherein it has been held to the following effect:
"25. 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 Bolam's 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.
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27. Mrs. K. Sarada Devi, the learned counsel appearing for the plaintiffs- respondents placed reliance on a 2-Judge Bench decision of this Court in State of Haryana & Ors. v. Smt. Santra, JT 2000 (5) SC 34, wherein this Court has upheld the decree awarding damages for medical negligence on account of the lady having given birth to an unwanted child on account of failure of sterilization operation. The case is clearly distinguishable and cannot be said to be laying down any law of universal application. The finding of fact arrived at therein was that the lady had offered herself for complete sterilization and not for partial operation and, therefore, both her fallopian tubes should have been operated upon. It was found as a matter of fact that only the right fallopian tube was operated upon and the left fallopian tube was left untouched. She was issued a certificate that her operation was successful and she was assured that she would not conceive a child in future. It was in these circumstances, that a case of medical negligence was found and a decree for compensation in tort was held justified. The case thus proceeds on its own facts.
28. 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:VIMAL KUMAR 2014.12.09 16:17 I attest to the accuracy and integrity of this document Chandigarh 4
"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."
29. 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."
It is the said view, which was reiterated by another three Judges' Bench in Raj Rani's case (supra).
Therefore, in view of the judgments referred to by the appellant, the medical negligence cannot be inferred only because of pregnancy. Thus, the substantial question of law is answered in favour of the appellant. The present appeal is allowed in the light of the aforesaid judgments and the suit dismissed by setting aside the judgment and decree of the Courts below with no order as to costs.
(HEMANT GUPTA) JUDGE 03.12.2014 Vimal VIMAL KUMAR 2014.12.09 16:17 I attest to the accuracy and integrity of this document Chandigarh