Balwinder Kaur Vs. State of Haryana and anr. - Court Judgment

Excerpt:
civil - compensation - medical negligence - appellant's sterlization operation failed and she gave birth to a child - - appellant filed suit for damages for medical negligence as indent person on ground that she was poor and unable to bring her child - trial court decreed suit in appellant's favour - on appeal, first appellate court reversed the order of trial court and decided matter in respondent's favour - hence, present appeal - held, on basis of appreciation of evidence as well as law laid down by supreme court in state of punjab v. shiv ram and ors. appellant not entitled to any compensation as chances of failure of tubectomy operation are always there - appellant informed in this regard - also tappellant herself negligent as after the conception she went to doctor at stage when operation could not have been suggested as it was dangerous to her own life - thus, no infirmity in impugned order and appeal dismissed - rakesh kumar jain, j.1. this is plaintiff's appeal against the judgment and decree of the first appellate court dated 21.11.2005 whereby the judgment and decree of the trial court dated 23.7.2005 was set aside.2. plaintiff filed a suit for recovery of rs. 1 lac as damages as an indigent person under order 33 cpc on the ground that she is a poor lady holding yellow ration card and has no source of income. she is residing with her husband and children at shiv colony, ward no. 6, near anganwari school ghatiwala, pinjore, tehsil kalka, district panchkula. her husband is unemployed and is suffering from various ailments. she had four daughters namely mamta, manju, sunanda and asha and had no son. she decided to have no more issue as such she planned to go for sterilization operation which was conducted by dr. vimal shouri, civil hospital, kalka on 29.2.1996 which was registered in the sterilization register vide no. 1150 of 1995/96 and a certificate dated 29.2.1996 was issued to her. it is further alleged that after the operation, she was assured by the doctor (respondent no. 2) that operation was successful and she will not conceive in future. however, in the year 1999, she again conceived and gave birth to a female child namely rajni on 30.11.1999. it is also alleged that she had gone to defendant no. 2 to ask him as to why she had become pregnant and also requested him for abortion but was told by him that the abortion at that stage can prove dangerous to her life, therefore, she had no alternative than to give birth to the child. she further alleged that she had suffered mental and physical agony on having given birth to an unwanted female child, which was put an extra financial burden on her and the entire family. it was submitted that she has no movable or immovable property and she needs money for the upbringing, education, clothes, food and marriage of the female child who had taken birth due to the failure and negligence of the tubectomy operation performed by respondent no. 2 on account of which she had claimed compensation to the tune of rs. 1 lacs.3. on notice, defendants appeared and filed joint written statement in which preliminary objection was raised that the plaintiff cannot file the suit as she was estopped by her own act and conduct as she had voluntarily undergone the tubectomy operation. it was also alleged that there had always been a possibility of failure of tubectomy operation and this fact was brought to her notice before operating upon hen it was alleged that follow up study on the subject shows that the failure rate of such like operation is 2.1% and if the operation of the plaintiff had failed neither the doctor nor the state can be held liable for the same and the plaintiff had given birth to a child due to her own negligence. on merits, it was admitted by the defendants that the plaintiff was operated upon for tubectomy at civil hospital, kalka by defendant no. 2, however, negligence on the part of defendant no. 2 while performing operation was denied. it was averred in the written statement that laproscopic tubectomy had been performed successfully yet the plaintiff was informed that there was possibility of failure of operation and in that case, she was advised to come to civil hospital kalka or visit any other nearby government institute for consultation as and when she failed to menstruate after one month but she did not comply with the instructions. it was denied that any assurance was given to the plaintiff that she will not conceive in future rather she signed the sterilization operation form in which it was clearly written that she knew that laproscopic tubectomy operation may fail and for the failure government institution/surgeon will not be responsible either to her or her relatives or any other person. it was denied that plaintiff had approached defendant no. 2 after she had conceived. had she done so she could have been relieved of the unwanted child by adopting the safer method of mtp. it was also mentioned in the written statement that as per hospital record, the plaintiff had four male children and one female child at the time of operation and she was herself responsible for giving birth to a female child after the operation.4. on the pleadings of the parties, the following issues were framed by the trial court:1. whether the plaintiff is entitled to recover rs. 1 lac as damages alongwith future interest @ 18% per annum from the date of filing the suit till the realization of the amount? opp2. whether the suit is not maintainable? opd3. whether the suit is barred by time? opd4. relief.5. both the parties led oral as well documentary evidence. the plaintiff balwinder kaur examined herself as pw1 and in her affidavit ex.pa reiterated her stand taken in the plaint and tendered documents ex.pl ration card of the plaintiffs family, ex.p2 tubectomy operation certificate of the plaintiff, ex.p3 birth certificate of ms. rajni, daughter of the plaintiff born after tubectomy operation of the plaintiff, ex.p4 legal notice issued by the plaintiff, ex.p5 postal receipt, ex.p6 upc receipt and ex.p7 acknowledgement. in her cross-examination, she admitted her signatures on the application form ex.d1 which was filled up and signed by her before she was operated upon. on the other hand, defendants examined; dw1 r.s. chauhan, who proved the consent form ex.d1 which bears the signatures of the plaintiff and that of dr. vimal shouri, who performed the operation. he reiterated the contents of the form containing warning about the possibility of failure of tubectomy operation.6. the trial court decreed the suit holding that the plaintiff had conceived fifth child due to the negligence of defendant no. 2 (respondent no. 2 herein) while performing tubectomy operation and hence held him liable to compensation by paying damages. the plaintiff was held entitled to damages of rs. 1 lac along with interest @ 6% per annum.7. the first appellate court reversed the findings of the trial court with regard to negligence and held that defendant had proved the form ex.d1 which was signed by the plaintiff in the hospital before being operated. the plaintiff had admitted her signatures. it was clearly written in the form that the plaintiff had been made to understand that some tubectomy operation result in failure for which the government hospital/doctor cannot be held responsible by her or her relatives. it was found that though the plaintiff had signed the form ex.d1 in hindi but she had stated mat she can not read hindi. since she had signed in hindi, presumption was that she was hindi knowing lady and can read and write as well. moreover, it was also found that the plaintiff had delivered four times before she became pregnant for the fifth time after the operation. she approached the doctor after she had missed menstruation thrice. opd slip etc. has been produced by her to prove that she had gone to the doctor after she learnt that she had become pregnant. she neither stated nor proved any document to show that she made any effort to go for abortion so that she may not be burdened with an unwanted child. it was found that conception was retained for the fifth time by her with the consent of the husband and thus, neither the doctor nor the state was found to be liable for payment of damages. the first appellate court had relied upon a decision of the apex court in the case of state of punjab v. shiv ram and ors. : air2005sc3280 and held as under:merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. the claim in tort in such cases can be sustained only if there was negligence on the part of the surgeon in performing the surgery and not on account of childbirth. the proof of negligence shall have to satisfy bloom's test (1957) 2 all. e.r. 118, 121 d-f, out of jacob mathew case : 2005crilj3710 . failure due to natural causes would not provide any ground for a 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 the 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. 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 and this is legal and permissible under the medical termination of pregnancy act, 1971.8. so also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100% exclusion of pregnancy after the surgery and it was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. ordinarily a surgeon does not offer such guarantee. where a doctor contracted to carry on a particular operation on a patient and a particular result was expected, the court would imply into the contract between the doctor and the patient a term that the operation would be carried out with reasonable care and skill, but would be slow to imply a term or unqualified collateral warranty that the expected result would actually be achieved, since it was probable that no responsible medical man would intend to give such a warranty.9. 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 gynaecology and empirical researches which have been carried put 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.10. the cause of failure of the sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the materials removed at a subsequent operation of resterilisation. the discrepancy between operation notes and the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynaecologist in case of failure of sterilization operation.'11. i have heard learned counsel for the parties and have perused the record with their assistance.12. the findings recorded by the first appellate court on the basis of appreciation of evidence as well as the law laid down by the supreme court in the case of state of punjab v. shiv ram and ors. (supra) leaves no doubt that the plaintiff is not entitled to any compensation as the chances of failure of tubectomy operation are always there and she was also warned/informed in this regard, moreover, she was totally negligent after the conception as she went to the doctor/defendant no. 2 at the stage when the operation could not have been suggested as it was dangerous to her own life. no evidence has been led by her to prove that after she missed the menstruation she had consulted the doctor and informed him about the failure of the tubectomy operation otherwise she could have been relieved of the unwanted child by adopting safer method of mtp.13. in view of the findings recorded by the first appellate court as well as the law laid down by the apex court in the case of state of punjab v. shiv ram and ors. (supra), i do not find any merit in the appeal nor any question of law much less substantial arises for determination by this court. therefore, the appeal is dismissed, however, without order as to costs.