AI Structured Summary
Not yet generated for this judgment
Judgment
M.M. Sundresh, J.—The Defendants are the Appellants herein. Challenging the judgment and decree rendered in O.S. No. 27 of 1999, on
the file of Principal Sub Court, Kumbakonam, as confirmed in A.S. No. 66 of 2004, on the file of the Principal District Court, Thanjavur, the
Appellants have filed the present Second Appeal.
At the time of admission, the following substantial questions of law have been framed:
(1) Whether the Courts below erred in allowing the plaint in the absence of proof for negligence on the part of the Respondent side Doctors who
conducted the family planning operation?
(2) Whether the Courts below erred in passing the award of compensation up to an amount of Rs. 1,25,000/-together with interest as just and
reasonable?
The suit was filed by the Respondent herein, claiming damages for a sum of Rs. 3,00,000/-for the negligence committed by a Medical Officer in
performing the family planning operation, the failure of which has resulted in the Respondent''s begetting two girl children. It is the case of the
Respondent that she was married to one R. Murugan in the year 1985. The Respondent is a house wife and she gave birth to two children. After
the birth of the second child, she was admitted to the 2nd Defendant Government Hospital on 04.01.1989 for the purpose of a family planning
operation. The operation was done on 05.01.1989 by the doctors attached to the second Respondent hospital. After the operation was done
successfully, she was discharged.
To the shock and surprise of the Respondent, she realised that she became pregnant again in spite of the family planning operation. She could
not take any effective step to abort the pregnancy, since by that time the stage was advanced. She ultimately, gave birth on 15.09.1992 to twins at
St. Annees Hospital, Kumbakonam. The husband of the Respondent is a daily wager. Due to the negligence committed by the doctors, who
performed the operation, she is made to maintain two children. Therefore, the suit has been laid claiming damages for a sum of Rs. 3,00,000/- with
interest.
A written statement has been filed by the second Appellant and adopted by the other Appellants. It has been admitted in the written statement
that on 05.01.1989, a family planning sterilization operation was done by the doctors attached to the second Respondent. It has been further
stated that the operation was successful. According to the Appellants, there would be a chance of failure of 2% in the operation done. The fact that
the Respondent delivered the children after three years would exemplify the position, the operation was successful. There was no negligence on the
part of the doctors, who have performed the operation. Hence, it is prayed in the written statement that the suit will have to be dismissed.
The Courts below on appreciation of facts have decreed the suit for a sum of Rs. 1,25,000/-with 12% interest per annum from the date of
institution of the suit till the date of decree and afterwards 6% interest per annum till date of realization of the amount with proportionate costs.
challenging the judgments and decrees rendered by the Courts below, the Appellants have preferred the present appeal framing substantial
questions of law as mentioned above.
The learned Counsel appearing for the Appellants submitted that the Respondent has not proved the negligence. It is further submitted that the
operation was done three years before the Respondent gave birth to twins. There is an element of failure in all operations. Since there is no specific
fault on the doctors, the Respondent is not entitled to any damages and hence, it is submitted that the judgments and decrees rendered by the
Courts below will have to be set aside and the suit is to be dismissed.
3 Mr. M.V. Krishnan, the learned Counsel appearing for the Respondent submitted that there is no dispute on facts. The factum of operation
and the consequential delivery of children has never been disputed or denied. When admittedly there was failure in the surgery performed, by the
doctrine of vicarious liability the Appellants will have to pay the compensation. The concurrent findings of fact held by the Courts below do not
warrant any interference u/s 100 of CPC Code. Therefore, it is submitted that, the Second Appeal will have to be dismissed.
It is the admitted case of the parties that the Respondent was admitted to the 2nd Appellant Hospital on 04.01.1989. Thereafter, the family
planning operation was conducted by the doctors of the second Appellant hospital. After the completion of the surgery, it was informed to the
Respondent that the said surgery has been successfully completed. The fact that the Respondent got conceived thereafter, and delivered two
children at the same time on 15.09.1992 is not in dispute. It is also not the case of the Appellants that the Respondent was in any way responsible
for the delivery of the children. The only plea raised on behalf of the Appellant is that there is an element of 2% failure in the operations conducted.
The said contention cannot be countenanced for the simple reason that the Respondent was informed that the operation was successful. While it
may be true that the failure was not deliberate, it cannot be denied that the Respondent was made to conceive due to the failure caused by the
doctors of the second Appellant. Therefore, by applying the doctrine of vicarious liability, the Courts below have rightly held that the Appellants
are liable to pay the compensation amount. Un-wantonly the Respondent has given birth to two children due to the mistake committed by the
doctors of the second Appellant. Even though the Respondent has sought for a sum of Rs. 3,00,000/-, the Courts below have awarded only a sum
of Rs. 1,25,000/-by way of damages. The factual findings have also been given by the Courts below about the financial status of the Courts below.
The Hon''ble Supreme Court of India in State of Haryana and Others Vs. Smt. Santra, has held that in a case where sterilization operation was
performed has failed and the person, who underwent operation conceived and gave birth to a child, it has to be presumed that the doctor, who
performed the surgery was negligent. The following passage of the Hon''ble Supreme Court would be apposite:
Ours is a developing country where majority of the people live below the poverty line. On account of the ever-increasing population, the
country is almost at the saturation point so far as its resources are concerned. The principles on the basis of which damages have not been allowed
on account of failed sterilisation operation in other countries either on account of public policy or on account of pleasure in having a child being
offset against the claim for damages cannot be strictly applied to the Indian conditions so far as poor families are concerned. The public policy here
professed by the Government is to control the population and that is why various programmes have been launched to implement the State-
sponsored family planning programmes and policies. Damages for the birth of an unwanted child may not be of any value for those who are already
living in affluent conditions but those who live below the poverty line or who belong to the labour class, who earn their livelihood on a daily basis by
taking up the job of an ordinary labour, cannot be denied the claim for damages on account of medical negligence....
The contention as to the vicarious liability of the State for the negligence of its officers in performing the sterilisation operation cannot be
accepted in view of the law settled by this Court in N. Nagendra Rao and Co. Vs. State of Andhra Pradesh, ; Common Cause, A Registered
Society Vs. Union of India and Others, and Achutrao Haribhau Khodwa and Others Vs. State of Maharashtra and Others, . The last case, which
related to the fallout of a sterilisation operation, deals, like the two previous cases, with the question of vicarious liability of the State on account of
medical negligence of a doctor in a government hospital. The theory of sovereign immunity was rejected.
Santra, as already stated above, was a poor lady who already had 7 children. She was already under considerable monetary burden. The
unwanted child (a girl) born to her has created additional burden for her on account of the negligence of the doctor who performed the sterilisation
operation upon her and, therefore, she is clearly entitled to claim full damages from the State Government to enable her to bring up the child at least
till she attains puberty.
Having regard to the above facts, we find no merit in this appeal which is dismissed but without any order as to costs.
The different facets of negligence, has been considered by the Honourable Apex Court in Poonam Verma v. Ashwin Patel 1996 CCJ 721
(SC) in the following manner.
Negligence has many manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence,
continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or
negligence per se, which is defined in Black''s Law Dictionary as under:
''Negligence per se.-Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as
to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably
opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As
a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.''
It has been further observed by the Hon''ble Apex Court that where a person is guilty of negligence per se, no further proof is needed. The
ratio laid down by the Hon''ble Apex Court has been quoted with the approval in the subsequent decision of the Hon''ble Apex Court in State of
Haryana and Others Vs. Smt. Santra,
In Spring Meadown Hospitalv. JarjotAhluwalia 1998 CCJ 521 (SC), it has been held by the Hon''ble Apex Court in the following manner:
In the case in hand we are dealing with a problem which centres round the medical ethics and as such it may be appropriate to notice the broad
responsibilities of such organisations who in the garb of doing service to the humanity have continued commercial activities and have been
mercilessly extracting money from helpless patients and their family members and yet do not provide the necessary services. The influence exerted
by a doctor is unique. The relationship between the doctor and the patient is not always equally balanced. The attitude of a patient is poised
between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a
sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner. It is a
great mistake to think that doctors and hospitals are easy targets for the dissatisfied patient. It is indeed very difficult to raise an action of
negligence. Not only there are practical difficulties in linking the injury sustained with the medical treatment but also it is still more difficult to
establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer expense of bringing
a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country.
It was further observed as under:
In recent days there has been increasing pressure on hospital facilities, falling standard of professional competence and in addition to all, the ever-
increasing complexity of therapeutic and diagnostic methods and all these together are responsible for the medical negligence. That apart, there has
been a growing awareness in the public mind to bring the negligence of such professional doctors to light. Very often in a claim for compensation
arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a
mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes
the liability while in the latter the conduct of the Defendant is considered to have gone beyond the bounds of what is expected of the reasonable
skill of a competent doctor.
Therefore, considering the said ratio laid down above by the Hon''ble Apex Court, this Court is of the view that the very failure of the
operation itself would amount to negligence and it is not incumbent on the Respondent/Plaintiff to specifically prove the negligence any further.
Further, considering that the very fact that after the surgery, the Respondent has conceived and delivered children resulting in the failure of the
operation, itself would prove the negligence. Moreover, the Appellants themselves have admitted that there is possibility of failure in the operations.
Therefore, the negligence being a question of fact and the same having been proved as found by the Courts below, there is no substantial question
of law involved in this Second Appeal warranting interference by exercising power u/s 100 of the CPC Code.
Accordingly, the Second Appeal fails and the same is dismissed. No costs. Consequently, connected C.M.P.(MD) No. 932 of 2006 is
dismissed.