Judgment:
W.P. No. 2987 Of 2013 5.3.2013 Shri Nitin Khare, learned counsel for the petitioner.
Heard.
Alleging negligence on the part of respondent Medical Officers of alleged failure of laparoscopic Tubectomy Operation, petitioner has filed this petition seeking compensation to the tune of Rs.10 lakhs.
The case of the petitioner is that in a family planning programme launched by respondent No. 3/the Block Medical Officer, Community Health Center Majhouli, District Jabalpur petitioner underwent laparoscopic Tubectomy Operation on 24th December 2008 under the supervision and guidance of the respondent No. 4 Medical Officer/Superintendent. It is urged that despite of being operated she gave birth to a girl child on 20th March 2010.
Alleging negligence the petitioner seeks compensation from respondents.
It is a matter of dispute as to whether it was the medical officer who was negligent or it is the petitioner who was required to take recourse to the instructions issued to her after the operation was performed.
It was observed in State of Punjab v. Shiv Ram and others [(2005) 7 SCC 1]. that, merely because a woman having undergone a sterlisation operation became pregnant and delivered a child, the operating surgeon or his employer canNo. be held liable for compensation on account of unwanted pregnancy or unwanted child.
It was further observed that claim in such cases can be sustained only if there was negligence on the part of the surgeon in performing the surgery. “The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam's test.
So also, the surgeon canNo. be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100 % exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery.”
. In view whereof evidences have to be led to prove the negligence, which is not possible in a petition under Article 226 of the Constitution of India. For that, the petitioner would have to file a suit for compensation and prove the negligence of the Surgeon who performed the surgery.
In view whereof without recording any opinion on merit, the petition is dismissed with a liberty to the petitioner to avail the remedy of claim in tort.
C.c. as per rules.
(SANJAY YADAV) JUDGE Vivek Tripathi