State of Haryana vs Samsun Nisha

Rakesh Kumar Jain, J.—The defendants are in appeal against the judgment and decree of the 1st Appellate Court by which suit filed by the plaintiff for recovery of damages of Rs. 2 lacs has been allowed. The question of law raised by learned counsel for the appellant is "whether the plaintiff is entitled to damages on the failure of tubectomy operation, if there is no evidence available on record proving the negligence of the Doctor?"

The plaintiff''s case is that she had undergone a tubectomy operation on 17.12.1990 at Red Cross Bhawan, GT, Road, Panipat. She was motivated for it by Naresh A.N.M. but the operation remained unsuccessful and the plaintiff delivered a baby.

She suffered mental shock and financial loss because she belongs to weaker section of Society and earns her livelihood by doing manual labour. It is alleged that the plaintiff contacted defendant No. 6 (Doctor) when she felt that she is pregnant but the Doctor told her that it is a side effect of the operation. She again got her tested and found seven and a half months pregnancy but at that time she had no alternative but to deliver the child. The plaintiff filed a complaint in the Consumer Dispute Redressal Forum which was dismissed for want of jurisdiction. She thus filed the present suit for damages of Rs. 2 lacs. Defendants No. 1 to 3 filed the written statement alleging that it was made clear to the plaintiff before operation that despite reasonable care in performance of the operation, the pregnancy might occur. The plaintiff had also undertaken not to hold the defendant liable. She was paid incentive of Rs. 130/- under Family Welfare Scheme and Rs. 10/- was paid to the motivator. The operation was conducted at FPA 1 surgical centre, Panipat. It is alleged that the plaintiff never came for medical check-up and deliberately continued with the pregnancy.

On the pleadings of the parties, following issues were framed:-

"1. Whether Nalbandi operation of the plaintiff was unsuccessful due to negligence of the doctor who conducted the operation? OPP

If issue No. 1 is proved whether the plaintiff is entitled to recover damages to the tune of Rs. 2 lacs, as alleged? OPP

Whether the plaintiff has got no cause of action to file the present suit? OPD

Whether the plaintiff is stopped from filing the present suit by her act and conduct? OPD

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the suit is not within time? OPD

Relief."

The plaintiff herself appeared as PW 1, Dr. Abha Bhavna as PW 2. Plaintiff has relied upon discharge slip Ex. PW 2/A, bed head ticket Ex. PW 2/B, prescription slip Ex. PW 2/C, birth certificate Ex. PW 2/D, notice u/s. 80 CPC Ex. PW 1/A, operation certificate Ex. PW 1/B, discharge slip Ex. PW 1/C, OPD slips Mark-PW 1/D; Mark PW 1/E and PW 1/F, Lab. Report Mark PW 1/G, Ultrasound report mark PW 1/H. On the other side, doctor Parveen Pannu defendant No. 6 appeared as DW-1. Defendants also relied upon application for sterilization operation Ex. D1, copy of record for payment of Rs. 130/- to the plaintiff as Ex. D2.

The Trial Court did not agree with the plaintiff about her regular visits to defendant No. 6 after the operation as she did not produce any evidence in this regard because had she visited defendant No. 6 for routine check-up, she would have got the Out Door Ticket. Defendant No. 6 appeared as DW 1 and stated that she has been conducting 1200 to 1500 tubectomy operations every year in which success rate is 100% but the total sterilization is not guaranteed. The consent of the plaintiff before the operation was also obtained and she was made to understand about the fact that the operation may not be 100% successful. The plaintiff was advised follow-up treatment but she never contacted defendant No. 6. DW 1 also referred a book "International Parenthood Federal Central Medical Committee written by Ronald L. Kleinman MB, Ch. B., D. (Obsat.) R.C.O.G. and referred to its page No. 94 in which it was mentioned that both male and female sterilization has a failure rate and if the pregnancy again occurs, the patient would have to go for medical termination of pregnancy. The plaintiff, while appearing as PW 1, stated that she herself got "operated for tubectomy as she was already having six children. After operation, she visited the Doctor several times but the Doctor advised her that the pain generally continues for some time and would stop automatically. The learned 1st Appellate Court, while relying upon decision of the Supreme Court in the case of State of Haryana and Others Vs. Smt. Santra, allowed the appeal.

Learned counsel for the appellant has submitted that after the decision in the case of Smt. Santra (Supra), the Apex Court has delivered another judgment in the case of State of Punjab Vs. Shiv Ram and Others, in which it has been held that merely because a woman having undergone sterilization operation became pregnant thereafter and delivered a child, the operating Surgeon or his employer cannot be held liable on account of the unwanted pregnancy or unwanted child. It is further held that the claim can be sustained only if there was negligence on the part of Surgeon in performing the operation. He has further relied upon a decision of this Court in the case of State of Haryana and Others Vs. Smt. Amrawati, in which while referring to the decision in the case of Smt. Santra (Supra), this Court held that until and unless negligence is proved, the Surgeon is not liable to pay the damages.

As a matter of fact, the decision in the case of Shiv Ram and others (supra) is fully applicable to the facts and circumstances of this case. The plaintiff has failed to highlight any negligence on the part of respondent No. 1, who had the experience of conducting 1200 to 1500 tubectomy operations every year.

Moreover, it cannot be believed that the plaintiff would make a complaint about her pregnancy after 71/2 months and would remain under an impression allegedly given by the Doctor that she is having pain in her abdomen because of the operation when she had already delivered six children. Otherwise, once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. Section 3(2) read with Explanation II thereto, of the Medical Termination of Pregnancy Act, 1971 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 which is legal and permissible under the Medical Termination of Pregnancy Act, 1971. There are several alternative methods of female sterilization operations 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 gynecology 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.

It has been categoric stand of the defendant that the plaintiff never got herself examined after the operation and approached the Doctor at the time when there was seven and a half months pregnancy, which could not have been terminated. Thus, the learned lower appellate Court has committed a patent error of law in decreeing the suit of the plaintiff without adverting to the aforesaid facts and circumstances and also in recording a categoric finding of negligence on the part of the Doctor, who had operated the plaintiff. Hence, for the foregoing reasons, the question of law raised in this appeal is answered in favour of the appellant and the appeal is hereby allowed, the judgment and decree of the Ist Appellate Court is set aside and that of the trial Court is restored.