Indian Kanoon - Search engine for Indian Law

1. Whether Reporters of local newspapers be allowed to see the judgment?

2. To be referred to the Reporter or not?

Justice J.D. Kapoor (Oral)  

1. This appeal filed against impugned Order dated 09-09-97 raises mainly two questions of facts and law as the complaint of the appellant against failed sterilization seeking compensation was dismissed. First question is whether the appellant is a consumer as defined under Sec. 2 (1)(d) of the Consumer Protection Act, as the program of sterilization was launched by the Central Government whereas the respondent hospital is a private hospital? Secondly, whether the operating doctor could be held guilty for medical negligence in case of a failed sterilization inspite of having undertaken all the necessary precautions?

4. While assailing the finding of the District Forum that the appellant is not a consumer, the counsel for the appellant has placed reliance on the following judgments of the Supreme Court:- (i) State of Haryana & Ors Vs. Smt. Santra JT 2000 (5) SC 34 (II) State of Punjab Vs. Shiv Ram JT 2005 (7) SC 606 Para-40.

5. In Santras case the Supreme Court took the view that failed sterilization in a country where population is increasing by the tick of every second of the clock and the government has taken up family planning as an important program for the implementation of which it had created mass awakening for the use of various devices including sterilization operation, It is directly responsible for another birth in the family creating additional burden on the family who had chosen for sterilization operation. It was further observed that the medical officers entrusted with the implementation of the family planning programme cannot by their negligent acts in not performing the complete sterilization operation sabotage the scheme of national importance.

6. While observing that the lady who was operated upon was a poor lady and had already seven children, the Supreme Court held that an unwanted child born to her created additional burden for her on account of the negligence of the doctor while performing sterilization upon her and therefore she was clearly entitled to claim full damages from the State Government to enable her to bring up the child atleast till puberty.

7. In Shiv Rams case, the Supreme Court has also observed that to popularize the family planning programme the State Government should bring down illiteracy, ignorance or carelessness or are unable to avoid the consequences of failed sterilization.

The State government should think of devising and making provisions for a welfare fund or link up insurance companies, which would provide coverage for such scheme where a child is born to the woman after sterilization operation.

8. As is apparent from the two decisions, negligence of the doctor in failed sterilization is necessary to be proved. In this regard the counsel for the appellant has referred to the discharge summary of the patient to show as to the post-operative carelessness of the respondent No. 1 hospital doctors. The discharge summary nowhere advises the appellant to take care that this sterilization operation was not fully safe or cent percent foolproof nor did it advise the appellant to have regular follow up nor advised her to use contraceptives or routine check up and not even a word of caution against getting pregnant.