State of Madhya Pradesh vs PARVATI BAI

BEING aggrieved by the judgment and decree dated 7.4.2003 passed by II ADJ, Mhow, District Indore in Civil Suit No. 8-B/2002 whereby suit filed by the respondent was decreed against the appellant for a sum of Rs. 80,000 along with interest @ 9% per annum, the present appeal has been filed.

SHORT facts of the case are that respondent filed a suit for realization of a sum of Rs. 1,52,000 on 15.4.2002 alleging that respondent is a poor lady and is earning her livelihood by doing the manual labour. It was alleged that there was a tubectomy operation of the respondent on 24.1.1998 which was done at Primary Health Centre, Village Harsola, Tahsil Mhow, District Indore and was performed by appellant No. 3 who was doctor in the Government Hospital. It was alleged that since on account of negligency on the part of appellant No. 3, operation was not successful and respondent was pregnant, therefore, respondent got herself checked at Civil Hospital, Mhow on 19.8.2000 and delivered a female baby on 30.9.2000. Further case of the respondent was that again on 17.2.2001, respondent has undergone for tubectomy operation at Baba Saheb Bhimrao Ambedkar Hospital, Mhow. It was alleged that respondent has given birth to a child on account of carelessness and negligence on the part of the appellant. It was further alleged that respondent will be required to maintain the baby for a period of 18 years till she attains the age of majority and amount of Rs. 1,52,000 has been claimed. After service of summons, appearance was made on behalf of the appellants but in spite of seeking time on number of occasions, no written statement was filed, hence learned Trial Court vide order dated 9.2.2003 closed the right of the appellants to file the written statement and fixed the case for recording of evidence. After recording of evidence of P.W. 1, Parvati Bai herself and P.W. 2, Mohanlal, husband of respondent, closed the case and passed the judgment and decree for a sum of Rs. 80,000 along with interest @ 9% per annum. Being aggrieved by this, the present appeal has been filed.

Learned Counsel for appellants submit that learned Court below committed error in passing the decree against the appellants. It is submitted that from the evidence on record, it is not proved that appellants were negligent at any point of time, hence the decree passed by the learned Court below is illegal and deserves to be set aside. Learned Counsel for appellants placed reliance on a decision reported in the case of Jacob Mathew v. State of Punjab, III (2005) CPJ 9 (SC)=III (2005) CCR 9 (SC)=VI (2005) SLT 1=AIR 2005 SC 3685, wherein Hon''ble Supreme Court has held that a mere accident is not evidence of negligence. It was further observed that an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent now-a-days is to obtain the consent of the patient or the person incharge of the patient if the patient is not in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.

FURTHER reliance was placed on a decision reported in the matter of State of Punjab v. Shiv Ram and Others, IV (2005) CPJ 14 (SC)=VI (2005) SLT 498=AIR 2005 SC 4108, wherein Hon''ble Supreme Court held that the cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone 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 be claimed. Further reliance was placed on a decision reported in the matter of State of Haryana and Others v. Raj Rani, IV (2005) CPJ 28 (SC)=VI (2005) SLT 527=AIR 2005 SC 4126, wherein Hon''ble Supreme Court held that child birth in spite of a sterilization operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognized the percentage of failure of the sterilization operation due to natural causes to be varying between 0.3% and 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognized by medical science. Thus, the pregnancy can be for reasons de hors and negligence of the surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation. Then the question of the State being held vicariously liable also would not arise. The decree cannot, therefore, be upheld.

MR. Mehta, Counsel for respondent placed reliance on a decision of the Apex Court in the matter of State of Haryana v. Santra, I (2000) CPJ 53 (SC)=IV (2000) SLT 93=II (2000) CLT 152 (SC)=2000 ACJ 1188, wherein State of Haryana launched a family planning programme so that growth of population is arrested, claimant offered and doctor performed sterilization operation on her and gave her a certificate. She was assured that full, complete and successful sterilization operation had been performed upon her and she would not conceive a child in future. Thereafter, claimant conceived and gave birth to a female child. Claimant was a poor labourer and she had already 7 children and birth of a new child put her to unnecessary burden or rearing up an unwanted child. The Trial Court held that doctor was negligent and awarded damages of Rs. 54,000 with interest at 12% per annum. Appeal filed by the State was dismissed. While dismissing the appeal filed by the State, Hon''ble Apex Court observed that we are positively of the view that in a country where the population is increasing by the tick of every second of the clock and the Government has taken up the family planning as an important programme of the implementation of which it had created mass awakening for the use of various devices including sterilization operation, the doctor as also the State must be held responsible in damages if the sterilization 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 sterilization. In the case of Shivram (supra), Apex Court had a occasion to take into consideration its own decision in the case of State of Haryana v. Santra (supra) and held that the case is clearly distinguishable and cannot be said to be laying down any law of universal application. Section 3 of the Medical Termination of Pregnancy Act, 1971 permits termination of pregnancy by registered medical practitioner notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to Sub-section (2) of Section 3 provides that, where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman and that 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 and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971. In the facts and circumstances of the case when the operation took place on 21.1.1998 and the respondent delivered a she baby on 30.9.2000, therefore, it can be safely presumed that conception took place somewhere in the beginning of the year 2000 and even after having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed. Now coming on the merits of the case, from perusal of record, it appears that the case has been proceeded ex parte against the appellant. Dr. Gopal Tiwari who is appellant No. 3 herein is the person who conducted the operation. The suit was filed on 15.4.2002. Appellant No. 3 was not served till 21.8.2002. Time was given to the respondent by the learned Court below for payment of process for the service of appellant No. 3. In the order dated 11.9.2002, it is mentioned that Mr. Pant has made appearance on behalf of appellant Nos. 1 to 3. From perusal of the power, it appears that Mr. Nootesh Chandra Pant has filed his power which has been signed by two persons. In the power, it is not mentioned on whose behalf the power is filed. The power is filed on 21.8.2002. By that time appellant No. 3 was not served. In the order dated 11.9.2002 it is mentioned that appellant No. 3 is being represented by Mr. N.C. Pant, Advocate. But there is no power on behalf of appellant No. 3. There is nothing on record to show that appellant No. 3 was served with the notice of the Court. In the circumstances, learned Court below committed error in proceeding ex parte against the appellant No. 3. Otherwise also the methods of sterilization so far as known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed that without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle it is expected of the couple to visit the doctor and seek medical advice. Medical practice has always had a place of honour in society. Failure of many a sterilization operation, though successfully performed, is attributable to causes other than medical negligence. Yet the doctor are being faced with claim for damages. The State is also being called upon to honour such decrees on the principle of vicarious liability when the surgeon has performed a surgery in discharge of his duty. Mostly such surgeries are performed on a large scale and as a part of family welfare programmes of the Government. Obviously, such programmes are in public interest. Such like decrees act as a disincentive and have deterrent effect on the surgeons performing sterilization operations.

IN view of this and also in view of the fact that appellant No. 3 is not served at any point of time with the notice of the Court below, the appeal is allowed. The order passed in Civil Suit No. 8-B/2002 passed by II ADJ, Mhow is set aside. No order as to costs. If any amount has already been paid by the appellant to the respondent then appellants shall not be entitled to recover the same. Appeal allowed.