Natwarlal and Another vs State of M.P. and Another

S.K. Kulshrestha, J.—This appeal by the plaintiffs is directed against the judgment and decree dated 29-11-1994, passed by the IIIrd Additional District Judge, Ratlam in Civil Suit No. 6-A/1993, by which the suit of the appellants for recovery of damages in the sum of Rs. 3,10,200/- has been dismissed.

As per the plaint allegations, Kantabai (P.W. 2) was married to Govind about 15-16 years ago and through this marriage they had four issues. On account of paucity of funds available with them, they agreed to sterilisation of the plaintiff No. 2 - Kantabai on assurance of Dr. Kamal Bohra (P.W. 5) that after operation she will never conceive. However, the operation failed and she conceived and gave birth to plaintiff No. 1 - Natwarlal. It was in this context that she claimed damages in the sum of Rs. 3,10,200/-.

The defendants traversed the plaint averments and stated that no inducement was given to the plaintiff No. 2 and she had voluntarily come for the sterilisation and after the operation she was advised to come to the Hospital for examination from time to time. It was also stated that in performing the operation for sterilisation, there was no negligence of Dr. Kamal Bohra (P.W. 5).

On the basis of the pleadings of the parties, the Trial Court framed six issues. It came to the conclusion that there was no allurement to entice the plaintiff No. 2 for the operation. It was, however, proved that she had been operated for sterilisation on 18-4-1983 and that she gave birth to plaintiff No. 1, on 9-2-1986. The Trial Court was, however, of the view that the birth of the child was not on account of any want of care of the Doctor and in this view of the matter, the suit was dismissed.

This short submission of the learned Counsel for the appellants is that on account of the failure of the operation and birth of the child despite sterilisation, the negligence of Dr. Kamal Bohra (P.W. 5) in performing the operation was writ large and, therefore, the Trial Court has erred in dismissing the suit on the ground that negligence has not been proved. Learned Counsel has also referred to the testimony of the other witnesses namely : Ku. (Dr.) V. Gopalan (P.W. 1); Jagdish (P.W. 2); (plaintiff No. 2) Kanta (P.W. 3); Govind (P.W. 4), husband of the plaintiff No. 2; and Dr. Kamal Bohra (P.W. 5) who performed the operation. While it is true that from the conjoint reading of the testimony of these witnesses, it is clear that Kanta belonged to a very poor family and could ill afford addition of any member in the family and that she was operated for sterilisation despite which she gave birth to appellant No. 1, we are of the view that in the absence of the proof of negligence on the part of the Doctor who performed the operation of sterilisation, it cannot be said that merely on account of the birth given by the appellant No. 2 to a child after the operation, the negligence of the Doctor can be inferred. Though the appellants examined two medical practitioners namely : Ku. V. Gopalan (P.W. 1) who examined the appellant after pregnancy and Dr. Kamal Bohra (P.W. 5) who performed the operation, nothing has been stated by the these Doctors to even remotely suggest that there was negligence on the part of Dr. Kamal Bohra (P.W. 5) which resulted in the birth of the child, notwithstanding sterilisation. From the testimony of Dr. Kamal Bohra it is manifest that all precautions and steps required to be taken for sterilisation, had been performed and it cannot, therefore, be even suggested that the steps required for performing the operation had not been taken with the result the operation was unsuccessful.

Learned Counsel for the appellants has invited our attention to the judgment of the Supreme Court in Stale of Haryana and Ors. v. Smt. Santra 2000 (3) M.P.H.T. 150, in support of this contention that in cases where a poor person suffers on account of the failure of the operation, State becomes liable to compensate. The learned Counsel for the respondents has referred to the decisions of State of Haryana and Others Vs. Raj Rani, and State of Punjab Vs. Shiv Ram and Others, .

In the decisions cited by the learned Addl. Advocate General, the Supreme Court has emphasised that in such case it is a bounden duty of the person claiming compensation to prove negligence of the Doctor. Even in the case relied upon by the learned Counsel for the appellants, the Supreme Court has observed that if failure was on account of the negligence of the Doctor which is directly responsible for another birth the family, the State must be held responsible in damages. Paragraph 42 of the report reads as under:

Having regard to the above discussion, we are positively of the view that in a country where the population is increasing on the tick of every second on the clock 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 sterilisation operation, the doctor as also the state must be held responsible in damages if the sterilisation operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who had chosen to be operated upon for sterilisation.

From the above extracted paragraph it is manifest that it is only when negligence of the Doctor who had performed the sterilisation operation is proved, which resulted in another birth in the family, that the State becomes liable to pay compensation. In the present case, the plaintiff has not discharged the said burden. Plaintiff had the opportunity to get herself thoroughly examined by a Doctor and investigated to show that it was on account of the negligence of the Doctor that birth of a child took place and the State was responsible. Under these circumstances, we do not find any flaw in the judgment and decree assailed by the plaintiffs/appellants. However, in State of Haryana and Ors. v. Raj Rani (supra), the Supreme Court has observed that the payment made by the State to the affected person shall not be recovered and be treated as an ex gratia amount. Paragraph 4 of the report reads as under:

However, the learned Counsel for the appellant- State stated at the very outset that the plaintiffs in all these cases are poor persons and the State was not interested in depriving the decree-holders of the payment made in satisfaction of the decrees but the State was certainly interested in having the question of law settled. The stand taken by the appellant-State has been that in spite of the decrees under appeal having been set aside, any payment already made thereunder would be treated by the State as ex-gratia payment.

Though in the said case the amount had already been paid and the State merely wanted the law to be settled on the question, Hon''ble the Supreme Court restrained recovery of the amount and directed it to be treated as ex-gratia. In the case in hand also, though the appellants are not entitled to any damages, we are of the view that the State should give some ex-gratia amount in view of the stark poverty of the appellants. We believe that a provision for payment of ex-gratia amount exists. Under these circumstances, while dismissing this appeal, we direct that the plaintiff''s be paid a sum of Rs. 20,000/- (Rupees Twenty thousand only) as ex-gratia amount, within three months from the date of this judgment. There shall be no order as to the costs.