1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.2438/2009 (State of Raj. & Ors. Vs. Kailash Kanwar & Ors.) Date of order : 30.03.2009 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Yashpal Khileree, Dy. Govt. Counsel for State. In this case, the District Collector, Udaipur and Superintendent, Government Panna Dhay Public Hospital, Udaipur are challenging the order dated 16.1.2009 (Annexure-8) passed by Permanent Lok Adalat, District Legal Services Tribunal, Udaipur and prayed that while quashing the said order, the application filed by respondent No.1 for claim may kindly be dismissed. Brief facts of the case are that an application was filed by Smt. Kailash Kanwar respondent No.1 under Section 22-1 C of the Legal Services Authorities Act, 1987 in which the respondent No.1 claimed compensation of Rs.8 lacs from the petitioners as well as proforma respondent Nos. 3 to 5. In application filed by respondent No.1, it 2 is stated that even after having undergone sterilization operation, she conceived third child and it has happened due to carelessness in sterilization operation of the doctors of the Government Hospital. As per the applicant, she is suffering from polio and after marriage she gave birth to two daughters, second daughter was born after major surgery and after request made by the applicant as well as by her family members, sterilization operation was performed and it was made clear that no child will born. But the said operation was performed negligently and it resulted into third child. In the application, it is stated by the applicant that after birth of third daughter not only it is possible for the applicant to survive because she is suffering from polio and it is not possible for her to maintain her three daughters. Therefore, she is entitled for compensation of Rs.8 lacs because due to negligent on the part of respondent Nos. 3 to 5 - doctors of the Government hospital, third child was born even after operation of sterilization. In reply to the application, none of the contentions raised by the applicant – respondent No.1 was refuted. More so, above facts were advanced and only assertion was made that there was no negligence in the operation conducted by doctors of the Government Hospital but some time due to failure of operation third child can be born. Therefore, there 3 was no negligence on the part of the doctors. Hence, there is no question of awarding any compensation but the learned Tribunal has illegally adjudicated the matter and without any evidence of negligence, compensation of Rs.2 lacs has been awarded, which is not permissible under the law. Learned Dy. Govt. counsel appearing for the petitioner vehemently argued that under the torts law unless negligence is established, there is no question of awarding compensation in casual manner but the Tribunal has committed an error of law while allowing compensation in favor of the respondent No.1. Further, it is argued that the permanent Lok Adalat can exercise its jurisdiction under the Act only when the case of public utility services is made out because the defective medical service does not fall under the definition of public utility service. Therefore, at the face value, no case of negligence is made out. The State Government has prepared a scheme in the name of family planning and under the said programme, the Government doctors are performing the operation of sterilization and sometimes, according to medical theory, the sterilization operation fails but for the same, no negligence can be attributed to the doctors but this aspect of the matter has not been considered by the Permanent Lok Adalat and straightaway the order of compensation has been passed, which is contrary to law and spirit of the Act 4 of 1987. I have considered the arguments made by Dy. Govt. Counsel and gone through the pleadings of the case. Admittedly, this writ petition has been filed by the Government Department and not by the doctors against whom the allegation has been levelled for negligence. Further, it is the duty of the State Government to take disciplinary action as and when such type of complaint is received with regard to negligence in the treatment by the government doctors. Here in this case, instead of taking any action against the erring doctors against whom the allegations are levelled by the applicant respondent No.1, this writ petition has been filed and most of the facts are not disputed by the petitioner- department before the Permanent Lok Adalat, Legal Services Tribunal who has passed the order impugned. Then obviously, the State Government has accepted the fact that the sterilization operation was performed in government hospital and third child was born after operation in the hospital. The applicant – respondent No.1 is suffering from polio and second child was born after major surgery and at that time, a request was made by the respondent No.1 and her family members for sterilization operation and thereafter, the said operation was performed by the doctors but even after 5 the sterilization operation, third child was born and these facts are not disputed by the petitioner Department and only assertion was made that there was no negligence on the part of the doctors but the fact remains that a disabled lady suffered not only mental agony but also the maintenance of third child due to negligent act of employees of the State Government. Therefore, the welfare State is under obligation to grant compensation for the act which is caused due to negligence of doctors and has caused harm to the applicant – respondent No.1. Therefore, in my opinion, instead of filing such type of writ petition before this Court, the welfare State was under obligation to grant compensation to the affected party, who is respondent No.1 in whose favor the Permanent Lok Adalat, Udaipur has passed an order for compensation and this order is not challenged by the doctors and it has been strangely challenged by the Department and the welfare State, which is not proper. It is expected from the State authorities not to protect those erring government employees against whom allegations are levelled for committing negligence. It is the duty of the department to ascertain correct facts, if any allegation is levelled by the citizen. Here, in this case, it is not disputed by the Department that sterilization operation was performed by the doctors of the Government hospital. It is not disputed that second 6 child and third child both born in the government hospital and the applicant – respondent No.1 herself is suffering from serious disease polio and now in whole of the life, she is required to maintain third daughter also, who born after sterilization operation. In this view of the matter, I am of the opinion that no wrong has been committed by the Permanent Lok Adalat while allowing the compensation of Rs.2 lakhs in favor of the application, which was to be paid upto 16.3.2009. Therefore, no case for interference is made out in the order impugned dated 16.1.2009 passed by Permanent Lok Adalat, Udaipur. Hence, this writ petition is dismissed. In this case, the petitioners without taking any action against the erring doctors who performed sterilization operation has chosen to file this writ petition knowingly well that the applicant- respondent No.1 is herself a disabled woman and she is from the weaker section of the society and now she has to maintain three daughters, therefore, this writ petition is dismissed with cost of Rs.10,000/-. (GOPAL KRISHAN VYAS), J. arun