IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 26 of 2001 Date of Decision: 20th December, 2010 Kidar Singh Appellant Versus State of H.P. and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the Appellant: Mr.Vipin Rajta, Advocate, vice counsel for the appellant. For respondents: Mr.R.M.Bisht, Dy. Advocate General, for respondent No.1. Mr.Ajay Sharma, Advocate, for respondent No.2. Sanjay Karol, J. (Oral) This Regular First Appeal under Order 41 Rules 1 and 2 read with Section 96 of the Code of the Code of Civil Procedure, has been filed by the plaintiff. Impugned judgment and decree dated 29.4.2000 passed by Additional District Judge, Shimla, in Case No.50-S/1 of 95/92 have been assailed. 2. Plaintiff filed suit for recovery of Rs.2,36,400/- for failure of family planning operation. On 23.11.1976 plaintiff underwent a family planning operation at Sawara. Operation failed and his wife conceived a child through him. Child was born and thereafter he was again advised to undergo operation. He was Whether the reporters of Local Papers are allowed to see the Judgment? 2 again operated on 6.4.1984. This resulted into deterioration of his physical condition rendering him unfit for performing manual work and duties. It also caused mental pain and agony. Plaintiff got issued notice dated 24.6.1985 claiming damages. Respondents failed to respond, consequently, plaintiff filed a suit before the District Judge, Shimla. 3. In the written statement, defendants refuted the stand taken by the plaintiff. Negligence was specifically denied. It was pleaded that plaintiff’s ailment had no casual connection with the operation. Factum of birth of the plaintiff’s child after the family planning operation was specifically denied. Plaintiff was asked to get himself medically treated on various dates i.e. 13.8.1983, 20.8.1985 and 23.9.1985. It was pointed out that plaintiff was advised to undergo semen analysis test, which he failed to do so. 4. Based on the pleadings of the parties, trial Court framed the following issues:- 1. Whether the plaintiff has suffered disability, as alleged, due to the acts of omission and commission on the part of defendants No.2 and 3, while in discharge of their duties as Doctors in Government Civil Hospital, Sawra? OPP. 2. In case Issue No.1 is proved, to what amount of damages the plaintiff is entitled to recover and from which of the defendants? OPP 3. Whether the suit is not within the period of limitation against defendant No.2? OPD-2. 4. Whether the suit is within the period of limitation against the other defendants? OPP. 3 5. Whether the plaintiff is estopped from filing the suit due to his acts, conduct and acquiescence? OPD-2 6. Whether the plaintiff has no enforceable cause of action? OPD. 7. Whether a valid notice was served in accordance with law on the defendants before institution of the suit? OPP 5. In support of their respective cases, parties led evidence. Having gone through the statement of the plaintiff and other witnesses examined by him, I am of the considered view that no case for interference is made out. 6. Dr. J.S.Retola (PW-1), through his testimony could not conclusively prove that the family planning operation carried out by the doctors of the State had failed and moreso due to the negligence of the doctors who had performed the same. Certificates Ext.PW-1/A and Ext.PW-1/D issued by this witness are also of no consequence to the plaintiff. They are simply opinions of an expert who has categorically not proved that failure took place due to the negligence of the doctors of the State who had performed the surgical operation or that plaintiff suffered physical weakness or was in any manner incapacitated to do physical work as a result of such family planning operation. Similarly, version of Karam Singh (PW-3) and Mast Ram (PW-4) is of no consequence. 7. No doubt Brij Lal Sharma (PW-2) Secretary Gram Panchayat has produced Pariwar register, extract of which is Ext.PW-2/A, to prove that a girl child Kanta was born to the plaintiff on 11.7.1980, but, however, even this fact by itself would 4 not prove the plaintiff’s case. Conception after family planning operation, by itself, does not prove the negligence of the doctors. 8. This Court in Abida Begum vs. State of H.P. and another, (RSA No.24 of 1996, decided on 29.10.2007) has held as under: “In State of Punjab v. Shiv Ram & Others (2005(7) SCC 1), the Apex Court held that negligence is the breach of a duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do and further a simple lack of care, an error of judgment or an accident, is not a proof of negligence of medical profession. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for 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 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. That there can be failure in carrying out the leproscopic operation has also been noticed by the Court. Shiv Ram (supra) has been followed in 2005(7) SCC 22 (State of Haryana & others v. Raj Rani), wherein the 5 Apex Court has held that 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 recognized the percentage of failure of the sterilization 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 recognized by medical science. Thus, the pregnancy can be for reasons dehors any negligence 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. The fact that the State can be held vicariously liable for the negligent act of its Doctors in performing the operation now stands settled by the Apex Court in Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996(2) SCC 634). Running a hospital is a welfare activity undertaken by the Government and the same cannot be regarded as being an activity having a sovereign character. The question is answered accordingly. 6 In Spring Meadows Hospital and another v. Harjol Ahluwalia (1998(4) SCC 39), the Apex Court has held as under:- “Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case the Court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor. Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly.” In Cholan Roadways Ltd. v. G. Thirugnanasambandam (2005(3) SCC 241), the Apex Court has held as under:- “The general purport of the words res ipsa loquitur is that the accident “speaks for itself” or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident 7 happened due to some other cause than his own negligence. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent.” In Jacob Mathew v. State of Punjab and another (2005(6) SCC 1), the Apex Court has held as under:- “No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are: (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation, the person holding the “smoking gun”. The jurisprudential concept of negligence defies any precise definition. In current forensic speech, negligence has three meanings. They are; (i) a state of mind, in which it is opposed to intention; 8 (ii) careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would not do. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence, as recognized are three; “duty”, “breach” and “resulting damage”, that is to say; (1) the existence of a duty to take care, which is owed by the defendant to the complainant; (2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both casually connected with such breach and recognized by the law, has been suffered by the complainant. If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.” 9. Considering the entire material on record, there is nothing on record to show and prove that the doctors have been negligent in carrying out the operation performed on the plaintiff on 23.11.1976. In the instant case, since no negligence has been found, therefore, principle of res ipsa loquitur is not applicable. The material on record including evidence has been properly construed, interpreted and appreciated. The findings of the Court below are 9 based on cogent material and correct appreciation of facts and I see no reason to interfere with the same. 10. The present appeal is accordingly dismissed. However, there shall be no order as to costs. 20th December, 2010 (Sanjay Karol) (C) Judge.