Judgment:
D.B.CIVIL SPECIAL APPEAL (WRIT) No.1155/2013.
Smt.
Ramila vs Chief Medical & Health Officer & ORS.// 1 // 5 D.B.CIVIL SPECIAL APPEAL (WRIT) No.1155/2013.
Smt.
Ramila versus Chief Medical & Health Officer & Ors..DATE OF ORDER
: 15th January 2014.
HON’BLE Mr.JUSTICE DINESH MAHESHWARI HON’BLE Mr.JUSTICE BANWARI LAL SHARMA Mr.Nikhil Dungawat for the appellant.
Mr.Yashpal Khileree, Govt.
Counsel, for the respondents.
<><><> BY THE COURT: This intra-court appeal against the order dated 22.01.2013, as passed by the learned Single Judge of this Court in CWP No.1640/2012, is time-barred by 220 days.
An application seeking condonation of delay has been moved by the appellant, supported by her affidavit.
Though the submissions made in the application are vague and incomplete, but in the circumstances of the case, while ignoring the delay, we have considered the matter on merits.
By the impugned order dated 22.01.2013, the learned Single Judge of this Court has accepted the writ petition filed by the present respondents against the award dated 19.10.2011, as made by Permanent Lok Adalat, Banswara, granting compensation quantified at Rs.1,00,000/- to the present appellant on account of birth of a child despite her having undergone sterilization operation, performed by the respondent No.3.
The appellant had filed the application D.B.CIVIL SPECIAL APPEAL (WRIT) No.1155/2013.
Smt.
Ramila vs Chief Medical & Health Officer & ORS.// 2 // before the Permanent Lok Adalat, claiming compensation in the sum of Rs.11,90,000/-, while attributing the birth of an additional child to the negligence of the doctor performing sterilization operation.
Upon the parties failing to reach an agreement, the Permanent Lok Adalat proceeded to deal with the dispute on merits; and proceeded to make the award on 19.10.2011, when nobody was present on behalf of the non-applicants.
The Permanent Lok Adalat took note of the facts about the appellant having undergone sterilization operation on 12.01.2001 and having yet given birth to a child on 20.04.2007.
With reference to these facts, the Permanent Lok Adalat concluded that there had been want of due care and caution on the part of the concerned Medical Officer which led to the birth of an additional child to the appellant.
The Permanent Lok Adalat also observed that the applicant, being a poor rustic villager, was not in a position to adequately maintain the child and hence, proceeded to grant her an amount of Rs.1,00,000/-, as financial support from the respondents.
The relevant observations and directions in the award impugned read as under:- “उक स त स यह ष र स पम ण ह ह क सम स च क तस अच र" द र अ क% स व न( एव* स + स प ,य नस *द" ऑ रशन नह"* क य गय । इस र उक नस *द" वजद 4 प ,य न ए च ज म ददय सजस ढ न ल9ख न उस 9न ष रन म< प ,य एव* उस त अत ररक न र लश ख + रन आवशय ह । प ,य गर" ग म( आददव स( ज त A मदह9 ह,वह उक च A उच प र स रवररश रन म< स%म नह"* ह, 4*क उक च D.B.CIVIL SPECIAL APPEAL (WRIT) No.1155/2013.
Smt.
Ramila vs Chief Medical & Health Officer & ORS.// 3 // ज म च क तस Aय 9 रव ह" रर म वर ह न य ज ह । अ :ववदम न ररस त यD मदनजर प ,य अ न उक च A रवररश सम म< वव %(ग स आच + सह य र म< ए 9 ख र य A र लश प प रन A अच र" य( ज ( ह । उक र लश र प .
त प H रन A ददन * 02.02.2007 स उक र लश A वस49" A अवच ल9य प ,य 9% व वष+ स र बय ज A दर स र लश प प रन A अच र" ह । आदश सHन य गय । त व9" फस9 शHम र ह र द इ K ज द णख9 दफ र ह ।" The learned Single Judge found the award so made by the Permanent Lok Adalat not sustainable for the same having been made without recording any finding that the sterilization operation had failed on account of negligence on the part of the doctor concerned.
The learned Single Judge also referred the decision of Hon'ble Supreme Court in the case of State of Punjab versus Shivram & Ors : (2005) 7 SCC1and proceeded to set aside the impugned award dated 19.10.2011 but then, observed that if any compensation was payable for failure of sterilization operation in terms of the Scheme notified by the State Government, the present appellant would make a representation in that regard, which shall be considered by the State Government expeditiously.
The learned Single Judge disapproved the award made by the Permanent Lok Adalat, inter alia, with the following observations: “A bare perusal of the material on record goes to show that the allegations of negligence on the part of the doctor performing the sterilization operation were not proved by the respondent No.1 by producing any cogent evidence on record.
There is no finding recorded by the Permanent Lok Adalat that the sterilization operation has failed on account of negligence on the part of the doctor performing the sterilization operation.
There is nothing on record to show as to what prevented the respondent No.1 to act promptly and go for abortion if she was not desirous D.B.CIVIL SPECIAL APPEAL (WRIT) No.1155/2013.
Smt.
Ramila vs Chief Medical & Health Officer & ORS.// 4 // of having yet another child.
In these circumstances, without there being any evidence, the Permanent Lok Adalat has seriously erred in holding that the petitioners are liable for deficiency in public utility services rendered by them.”
.
Seeking to question the order so passed by the learned Single Judge, learned counsel for the appellant has strenuously argued that the appellant is a poor Adiwasi not possessed of sufficient means to support a larger family.
It is submitted that on the admitted fact situation that the appellant had undergone sterilization operation and had thereafter, conceived the child being indisputable, the award made by the Permanent Lok Adalat called for no interference in the writ jurisdiction.
The learned counsel has also referred to the decision of Hon'ble Supreme Court in the case of State of Haryana & ORS.Vs Raj Rani : (2005) 7 SCC22and submitted that therein, the Hon'ble Supreme Court, despite proceeding on the basis of Shiv Ram's case (supra).protected the concerned claimants by directing that any amount paid by the appellant State to the decree-holders would not be liable to be refunded.
Thus, the learned counsel prayed in the alternative that such a couRs.may be approved in the present case too, particularly in view of the poor financial condition of the appellant.
In this regard, on being queried if the amount has indeed reached the appellant, the learned counsel for the appellant could only submit that it had 'almost' reached inasmuch as it had been sanctioned by the authorities concerned.
However, the learned counsel candidly admitted that actual payment was not received by the appellant.
D.B.CIVIL SPECIAL APPEAL (WRIT) No.1155/2013.
Smt.
Ramila vs Chief Medical & Health Officer & ORS.// 5 // So far the merits of the case are concerned, we are at one with what has been observed by the learned Single Judge in this case.
A bare look at the award impugned makes it absolutely clear that on the core issue relating to the negligence of the doctor concerned, Permanent Lok Adalat made rather an assumptive award and, without there being any cogent and specific evidence, it was concluded that there had been want of proper care and caution on the part of the doctor concerned; and thereafter, the Permanent Lok Adalat proceeded to award the amount towards the so-called financial support.
With respect, we are unable to approve the approach of the Permanent Lok Adalat in this matter from any stand-point.
The learned Single Judge has rightly taken into the comprehension the fact situation of the case as also the law applicable; and has rightly set aside the baseless award made by Permanent Lok Adalat while pointing out that a case of medical negligence cannot be assumed by a mere reference to the allegations of failure of the operation, as was laid down in no uncertain terms by the Hon'ble Supreme Court in Shiv Ram's case (supra).The principles were again reiterated in Raj Rani's case (supra).as referred by the learned counsel for the appellant in the following:- “A three-Judge Bench of this Court has held in State of Punjab v.
Shiv Ram that childbirth in spite of a sterilisation operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes D.B.CIVIL SPECIAL APPEAL (WRIT) No.1155/2013.
Smt.
Ramila vs Chief Medical & Health Officer & ORS.// 6 // 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 recognised the percentage of failure of the sterilisation operation due to natural causes to be varying between 0.3% to 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 recognised by medical sceince.
Thus, the pregnancy can be for reasons dehors any regligence 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 decrees cannot, therefore, be upheld.”
.
In view of the above, we are satisfied that the order, as passed by the learned Single Judge calls for no interference.
So far the other part of the submission is concerned, it is but apparent that in Raj Rani's case (supra).it was conceded on behalf of the appellant State that they would not interested in depriving the decree-holders of the payment already made in satisfaction of the decrees in question.
It was in view of such a concession on the part of the State that the Hon'ble Supreme Court, in the given case, ordered that the decree-holder would not be liable to refund the amount by way of restitution.
It is also but apparent that the Hon'ble Supreme Court has not laid down the law of universal application in Raj Rani's Case that in every such matter, despite not approving the award or decree as the case may be, the State shall yet be obliged to make the payment to the claimants.
Moreover, in the present case, admittedly, the State has not released the payment to the appellant.
Therefore, the observations as made in the Raj Rani's D.B.CIVIL SPECIAL APPEAL (WRIT) No.1155/2013.
Smt.
Ramila vs Chief Medical & Health Officer & ORS.// 7 // case (supra) do not even remotely apply to the present case.
It is also noticed that the learned Single Judge has otherwise left it open for the appellant to make a representation in terms of the Scheme floated by the State Government for payment in case of failure of sterilization operation; and has expected of the State Government to take a decision on such a representation expeditiously.
It is needless to say that when we are not inclined to interfere with the order passed by the learned Single Judge, obviously the parties would be expected to take appropriate steps for payment under the applicable Scheme but, of course, in accordance with law.
Subject to the observations foregoing, the appeal stands dismissed.
(BANWARI LAL SHARMA),J.
(DINESH MAHESHWARI),J.
sudhir