Allahabad High Court
Smt. Sunita Devi vs State Of U.P. & Others on 24 February, 2012
Author: S.K. Singh
Bench: S.K. Singh, Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED Civil Misc. Writ Petition No. 37288 of 2009 Smt. Usha Devi and another Vs. State of U.P. and others Connected with Civil Misc. Writ Petition No. 26902 of 2009 Smt. Sunita Devi Vs. State of U.P. and others Connected with Civil Misc. Writ Petition No. 26767 of 2009 Smt. Babita Devi Vs. State of U.P. and others .-.-.-. Hon'ble S.K. Singh,J.
Hon'ble Pankaj Naqvi,J.
(Delivered by Hon'ble Pankaj Naqvi,J.) As common issues of law and facts are involved; hence these petitions are being disposed off simultaneously with the consent of the parties, and in terms of the Rules of the Court.
1. Petitioners are claiming themselves to be the alleged victims of unsuccessful tubectomy commonly known as female sterilization, performed on them, as a result of which they have now given birth to an unwanted child and as they belong to the marginalized section of the society, hence, they are unable to bare the strain of raring of such a child, putting them under immense physical, mental and financial stress that they have now staked a claim for compensation/damages from the State, alleging medical negligence of the doctor concerned.
2. The submission of Sri M.S. Pandey, learned counsel appearing in the petitions is that as medical negligence is established per se from the documents on record, in as much as, tubectomy stands proved and there are authentic documents on record to prove that even after the victims had undergone tubectomy, yet unfortunately they have conceived again and given birth to an unwanted child and therefore, considering the social background and the financial status of the victims and in view of the schemes launched by the Central Government for grant of compensation/damages, each of the victims is entitled to appropriate damages/compensation to be paid by the State Government for the medical negligence of the doctor concerned. To buttress his submission, learned counsel for the petitioners placed reliance on a Division Bench judgment of this court, Smt. Shakuntala Sharma and others Vs. State of U.P. and others reported in AIR 2000 Allahabad 219 wherein in such a situation the court directed for grant of compensation to the tune of Rs. 1 lac to the victim, a copy whereof has been filed as Annexure-6 to the writ petition no. 37288 of 2009.
3. Per contra, the submission of Sri Pankaj Saxena, learned Standing Counsel for the State-respondent is that it has now been established by decisions of the Apex Court, relying on the opinion of Medical Experts in Obstetrics and Gynaecology that failure of tubectomy can also be attributed to natural causes, beyond the control of the doctor who carried out such sterilization and therefore, till such time, it is not established by way of evidence on record as to whether it was the negligence of the doctor concerned or because of natural reasons that the child was born on account of unsuccessful tubectomy a claim for compensation under Article 226 of the Constitution of India is not maintainable and therefore, the writ petition is not the appropriate remedy and accordingly the same is liable to be dismissed.
4. The Apex Court had an occasion to examine the aforesaid issue in the case of State of Punjab Vs. Shiv Ram reported in (2005) 7 SCC 1 wherein the Apex Court opined that merely because a woman has undergone sterilization and thereafter she became pregnant and delivered a child, the operating surgeon or the employer can not be held liable for compensation on account of unwanted pregnancy or unwanted child. For such a claim to succeed the plaintiff will have to establish that there was negligence on the part of surgeon in performing the surgery and that the proof of negligence will have to satisfy the test, popularly known as the Bolam's test. The test was laid down in the case of Bolam Vs. Frierl Hospital Management Committee, reported in 1957 (1) WLR 582, wherein it was held that the test is the standard of the ordinary skilled man exercising and professing to have that special skill and that a man need not possess the highest expert skill and that it would be sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular act. The said test has been approved by the Apex Court in the case of Martin F. D'Souza Vs. Mohd. Ishfaq, reported in JT 2009 (2) SC 486.
5. The Apex Court in the case of Shivram (Supra) had placed reliance on the opinion given by the experts in the field of Gynaecology that failure rate of sterilization varies from 0.4% to 7%, depending upon the technique adopted by the doctor concerned and that pregnancy may occur either because of faulty technique or due to spontaneous recanalisation and that none of the methods/techniques are cent percent failure free. In this connection paragraph 17 of the said judgment is extracted herein below.
"It is thus clear that there are several alternative methods of female sterilization operation 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 procedure is considered necessary to be performed for purposes other than merely family planning."
6. Accordingly this court is of the view that merely because the female sterilization has become unsuccessful and the victim has given birth to an unwanted child, that fact alone cannot proof the negligence on the part of the doctor concerned, as in such a case the plaintiff will have to satisfy the test laid down in the aforesaid Bolam's rule.
7. The obvious and logical inference which is deduced from the aforesaid proposition is that a writ petition is not an appropriate remedy for claiming compensation/damages as the same would involve scrutiny of the expert opinion, examination of the expert who conducted such a surgery and thereafter a finding is to be recorded as to whether the negligence was attributable to the doctor concerned or tubectomy was unsuccessful for natural reasons. Certainly a writ court with its limitation is not a competent forum to adjudicate on such complex factual issues.
8. Moreover, the view which we have taken also finds support from a judgment of this court Smt. Sharda Devi and others Vs. State of U.P., reported in 2010 (6) ADJ 190 (DB) (LB). We have carefully gone through the judgment of this court in the case of Shakuntala Sharma which has been relied on by the learned counsel for the petitioner and we, with great respect to the learned Judges, disagree with the view taken by the Division Bench. In view of the subsequent judgment rendered by the Hon'ble Apex Court, in the case of Shiv Ram (supra) and that of Sharda Devi (supra), judgment of Smt. Shakuntala Sharma is no longer a good law.
9. Before parting with the case we would like to remind the State Government that the observations made in the case of Sharda Devi, wherein the State Government was requested, that notwithstanding, a failed sterilization it would be a prudent step on the part of a welfare state to create a consortium/welfare find for such victims, which can provide some solace to these unfortunate victims, who often come from the lower strata of the society, notwithstanding the fact as to who is responsible for such failed sterilization. We hope and trust that State Government will take appropriate steps with all sincerity and concern.
10. Accordingly, subject to the observations made above, all the writ petitions fail and are hereby dismissed as being not maintainable. However, it shall be open for the victims to approach such forum for the redressal of their grievances, as may be available to them, under law.
Dt/- February 24th, 2012 Masarrat