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The petitioner has relied upon a decision of the Supreme Court in State of Haryana vs. Santra (Smt.)1 in support of the claim for compensation. That was a case where a patient had been admitted to a Government Hospital for a sterilization operation. A child was born despite the surgery following which, a suit for damages was filed for medical negligence. The trial Court decreed the claim for an amount of Rs.54,000/- together with interest @ 12% per annum against which, an appeal before the District Court and thereafter a Second Appeal before the High Court were dismissed. The facts of the case would indicate that there was a specific finding of negligence on the part of the surgeon in performing the surgery inasmuch as though the patient had sought a complete sterilization, one of the Fallopian tubes had not been operated upon in the course of the surgery. These facts are clear from the findings recorded in paragraphs 18 and 20 of the judgment of the Supreme Court, which are as follows:

"18. The facts which are not disputed are that Smt. Santra, respondent, had undergone a sterilization operation at the General Hospital, Gurgaon, as she already had seven children and wanted to take advantage of the scheme of sterilization launched by the State Government of Haryana. She underwent the sterilization operation and she was issued a certificate that her operation was successful. She was assured that she would not conceive a child in future. But, as luck would have it, she conceived and ultimately gave birth to a female child. The explanation offered by the officers of the appellant State who were defendants in the suit, was that at the time of the sterilization operation, only the right Fallopian tube was operated upon and the left Fallopian tube was left untouched. This explanation was rejected by the courts below and they were of the opinion, and rightly so, that Smt. Santra had gone to the hospital for complete and total sterilization and not for partial operation. The certificate issued to her, admittedly, was also in respect of total sterilization operation.

The decision in Santra (supra) was rendered by a Bench of two learned Judges of the Supreme Court and subsequently, it was considered in a decision of three learned Judges of the Supreme Court in State of Punjab v. Shiv Ram2. That was also a case where a decree for compensation was passed by the trial Court following the birth of a child, despite a tubectomy operation. The decree was upheld by the first appellate Court, while the second appeal was dismissed by the High Court. The Supreme Court observed, after reviewing the medical literature on the subject that there is, in a sterilization operation, no guarantee of a successful operation in every case and authoritative medical learning on the subject recognizes the possibility of failure depending upon the technique which is chosen. This is evident from the observations contained in paragraph 17 of the judgment, which read as follows:

Hence, the view of the Supreme Court was that the cause of action for claiming compensation in a case of a failed sterilization operation would arise on account of negligence of the surgeon and not on account of childbirth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to opt or not to opt for medical termination of pregnancy. Having known of the pregnancy 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, the Supreme Court held, be claimed.