RSA No.1365 of 2007 -1- In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 25.08.2008. Joginder Singh ... Appellant Versus State of Haryana and others ... Respondents. CORAM HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.BPS Virk, Advocate, for the appellant. Mr.Rajive Kawatra, Senior D.A.G., Haryana, for the respondents. -- PERMOD KOHLI, J. This is plaintiff's Regular Second Appeal against the judgment and decree dated 19.11.2005 passed by the learned Additional District Judge, Kurukshetra, whereby the appeal preferred by the defendant- respondents has been accepted and the suit filed by the present plaintiff dismissed. The brief facts of the case are that the plaintiff got himself operated at L.N.J.P. Hospital, Kurukshetra, for family planning. The sterlisation (Vasectomy operation) was performed by defendant No.3 on 20.12.1995 in the aforesaid hospital. After five years of the operation, the wife of the plaintiff become pregnant and she gave birth to a male child. It is alleged that the plaintiff again approached the L.N.J.P. Hospital at Kurukshetra and got himself tested on 22.05.2000. On testing, 2 to 4 living RSA No.1365 of 2007 -2- sperms were found in the semen of the plaintiff. The plaintiff alleged that, at the time of his sterlisation in the year 1995, he was assured by the Operating Surgeon i.e respondent No.3 that no child shall be conceived from his loins to his wife in future. It is further alleged in the plaint that it is due to the negligence of the doctor that his wife conceived and an unwanted child has been born. The plaintiff, accordingly, served a notice under Section 80 of the Code of Civil Procedure demanding damages and later filed the present suit for recovery of Rs.500,000/- as damages with interest. The suit was filed as an indigent person. On being put to notice, the defendants filed their written statement. Besides denying the allegations of negligence on the part of the operating doctor, the defendants also pleaded that there are chances of failure of the operation even if performed by the best of the doctors. The parties led their respective evidence. On the basis of the evidence, the trial Court decreed the suit of the plaintiff for an amount of Rs.100,000/- vide its judgment and decree dated 29.08.2005. The defendant-respondent herein, filed an appeal in the Court of learned Additional District Judge, Kurukshetra, which has been allowed vide the impugned judgment and decree dated 19.11.2005 and suit of the plaintiff- appellant herein, dismissed. The learned Lower Appellate Court reversed the decree on the ground that the plaintiff was required to prove negligence on the part of the operating doctor and since negligence has not been established, the suit is RSA No.1365 of 2007 -3- liable to be dismissed. The learned Lower Appellate Court also observed that under the Medical Jurisprudence there is possibility of the failure of the sterlisation operation due to natural causes which vary between 0.3% to 7% depending upon the techniques or method chosen while performing the surgery and it is for the plaintiff to establish the negligence of the operating doctor. I have heard the learned counsel for the parties at length. Similar issue came up for consideration before the Hon'ble Apex Court in the case of State of Punjab Vs. Shiv Ram and others, 2005 (4) RCR (Criminal), 91,wherein the following observations have been made:- “We are, therefore, clearly of the opinion that merely because a woman having undergone a sterlization 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 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 cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100% exclusion or pregnancy after the RSA No.1365 of 2007 -4- surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee.” The aforesaid issue was followed by the Hon'ble Supreme Court in the case of State of Haryana and others Vs. Raj Rani, 2005 (3) Latest Judicial Reports, 519. Both these judgments are where operation was performed upon the female i.e Tubectomy. In cases of sterlisation operation of females, failure is reported to be 0.3% to 7% due to natural causes depending upon the technique or method used while performing the sterlisation. In the case of Vasectomy also the success rate is not 100%. The study made by the CREST (The U.S. Collaborative Review of Sterlisation), a prospective multicenter, observational study of sterlisation, has reported that there is possibility of failure of the operation due to natural causes. The cumulative failure per 1000 procedures is 9.4 within one year after the vasectomy and 11.3 at years 2,3 and 5. It has also been reported in these studies that where the follow up procedure has not been observed after the vasectomy, the chances of failure of the operation become more. A report published under the Medical Journal in the year 2004, has reported that 540 women studied by the Centre between the age group of 18 to 44, it was found that six of those women became pregnant between six to 72 weeks after their husbands underwent a vasectomy. RSA No.1365 of 2007 -5- In view of the Medical Jurisprudence, the failure is possible due to natural causes. It is imperative that the negligence of the doctor is established. There is no evidence on record to establish that the doctor was negligent. To the contrary, DW-1-Dr.SC Grover, appeared as a witness and deposed that 2 to 4 living sperms were found present in the semen of the plaintiff which are not sufficient to cause pregnancy. He has also deposed that there are natural causes of failure of the operation. In view of the above position, the impugned judgment of the learned Lower Appellate Court cannot be faulted with. No substantial question of law arises in the present appeal. For the reasons recorded above, I find no merit in the present appeal and the same is hereby dismissed with no order as to costs. 25.08.2008. (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES RSA No.1365 of 2007 -6-