IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 520/1998 Reserved on:4.12.009 Decided on: 15.12.2009 ________________________________________________ Smt. Manwari Devi. …Appellant. Versus Union of India and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Virender Rathore, Advocate. For the Respondents :Mr. Rakesh Jaswal, Advocate for respondents No.2 and 3. None for respondent No.1. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 22.8.1998 passed by the learned Additional District Judge (1), Kangra at Dharamshala in CA No. 19- D/97. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience) filed a suit for recovery of Rs. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 60,000/- as damages on the ground that she had undergone operation of sterilization under the family planning programme on 19.3.1986 at Paprola. She was operated upon by respondent-defendant No.3-Dr. Kulwant Singh. He has issued certificate dated 19.3.1986. It has further been averred that after the sterilization operation, plaintiff conceived a child and she was examined by a competent Medical Officer on 21.5.1992. She gave birth to a female child named Minakshi Devi on 15.7.1992 in her house at village Ambari, District Kangra. It is alleged that the sterilization operation was not conducted by defendant No.3 under proper care and precaution. The suit was contested by respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) by filing written statement. It was primarily contended that defendant No.3 was not negligent in performing the sterilization operation and no liability can be fastened upon him. No replication was filed by the plaintiff. The learned Senior Sub Judge decreed the suit on 13.11.1996. The defendants preferred an appeal before the learned Additional District Judge (1), Kangra at Dharamshala. The learned Additional District (1), Kangra at Dharamshala allowed the appeal on 22.8.1998 and set aside the judgment and decree passed by the trial courts below. The Regular Second Appeal has been filed against the judgment and decree dated 22.8.1998 by the plaintiff. This Regular Second Appeal was admitted on the following substantial questions of law. 1. Whether a doctor who is also a public servant is not under a legal duty to take due care and diligence while performing surgical operation? 3 2. Whether the principle of res ipsa loquitor is not attracted in the facts of the present case? 3. Whether a person is not entitled to damages even in a case where negligence is proved?” Mr. Virender Rathore has supported the judgment and decree passed by the learned trial court. Mr. Rakesh Jaswal appearing on behalf of respondents No.2 and 3 has supported the judgment and decree passed by the learned first appellate court. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. The plaintiff was operated upon at Paprola on 19.3.1986. The operation was undertaken by defendant No.3-Dr. Kulwant Singh. She gave birth to a female child on 15.7.1992. It is not disputed by the parties that defendant No.3 was a qualified doctor. Plaintiff examined herself as PW-1. She has testified that she has been operated upon by defendant No.3. She also deposed that defendant No.3 has assured her that the operation was successful in all respects and he issued certificate Ex.PA. She delivered a female child on 15.7.1992. Thus suffered a loss of Rs. 60,000/-. She has also produced in evidence copy of medical check up Ex. PW-1/A and prescription slip Ex. PW-1/B dated 21.5.1992. She has also proved on record copy of notice issued under Section 80 of the Code of Civil 4 Procedure Ex. PW-1/D, postal receipts Ex.PW-1/E-1 to Ex. PW-1/E-3 and acknowledgements Ex. PW-1/F-1 & Ex. PW-1/F-2. She has deposed in her cross-examination that after operation, she was having regular menstruation cycle. She has admitted in clear terms that she was apprised that the operation was reversible and a child could be conceived. She was operated upon for sterilization in Civil Hospital. She was also made to understand by the doctor that all the operations are not successful and some precautions are required to be taken after the operation also. According to her, Dr. Karan told her that a wrong vein was cut due to which she conceived and gave birth to a child. DW-2 Shri Parsinda Ram is husband of plaintiff. He has admitted that his wife was operated upon for tubectomy. She was also examined at Railway Hospital, Paprola. She was told that there was some abcess in the stomach of the plaintiff. He also testified that his wife conceived child due to negligence of defendant No.3. According to him, the doctors had overruled the chances of conception by issuing a certificate. PW-3 is Smt. Dhobi Devi. She was practicing as midwife. She has admitted that all the operations of tubectomy are not successful and there are chances of failure. Defendant No. 3 Dr. Kulwant Singh has appeared as DW-1. He has admitted that he has undertaken the operation of tubectomy after regular checkup of the plaintiff. The husband of the plaintiff has acted as the motivator. He has conducted about 5000 sterilization operations. He has categorically deposed that the operation was conducted after taking due care and precaution. According to him, there was no negligence. He has admitted the issuance of certificate 5 Ex. P-1. He has also admitted that even in case of a slight mistake, the chances of failure of operation could not be ruled out. He has finally deposed that the operation was undertaken after due diligence and by taking all the required precautions. Plaintiff has not alleged any negligence on the part of defendant No. 3 except that he has assured her that she will not conceive. PW-2 has deposed that his wife conceived due to negligence on the part of defendant No.3. PW-3 Smt. Dhobi Devi has admitted that there are chances of failure of family planning operations. Plaintiff has not examined any expert. Dr. Karan who has conducted second operation though available, was not examined by the plaintiff. The only issue required to be gone into by both the Courts below was whether defendant No. 3 took proper care and precaution at the time of operation or after the operation. In family planning operation, the chances of failure of the operation could not be ruled out in 1% cases. Plaintiff has failed to prove by leading any tangible evidence on record that defendant No.3 has not exercised due and proper care at the time of conducting operation. DW-3 has deposed that he has taken all the precaution and due care after examining the patient. In “principles of Gynaecology” by Sir Norman Jeffcoate it is stated at page 630 that there are chances of failure of sterilization operation, which reads thus: “……..The only sterilization procedure in the female which are both satisfactory and reliable are (1), resection or destruction of a portion of both fallopian tubes, and (2) hysterectomy. No method, however, is absolutely reliable and pregnancy is 6 reported after sub total and total hysterectomy, and even after hysterectomy with bilateral salpingectomy. The explanation of these extremely rare cases in a persisting communication between the ovary or tube and the marginal vault. Even when tubal occlusion operations are competently performed and all technical precautions taken, intra-uterine pregnancy occurs subsequently in 0.3% cases. This is because an ovum gains access to spermatozoa through a recanalised inner segment of the tube…….” Mr. Virender Rathore has relied upon State of Haryana and others versus Santra (Smt), (2000) 5 SCC 182. In this case also, the lady had undergone sterilization operation at Government Hospital. It was found that only her right Fallopian tube was operated upon and the left Fallopian tube was left untouched. In these circumstances, it was held that the doctor has acted negligently. The State was held vicariously liable for the negligence of its doctor. Their Lordships have held that every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. Their Lordships have further held that the Medical Officers entrusted with the implementation of the family planning programme cannot, by their negligent acts in not performing the complete sterilization operation, sabotage a scheme of national importance. Their Lordships have held as under: “10. Negligence is a 'tort'. Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as 'implied undertaking' by a member of the 7 medical profession that he would use a fair, reasonable and competent degree of skill. In Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118, Mc Nair, J. summed up the law as under : "The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent." 19. Family Planning is a National Programme. It is being implemented through the agency of various Govt. Hospitals and Health Centres and at some places through the agency of Red Cross. In order that the Naitonal Programme may be successfully completed and the purpose sought may bear fruit, every body involved in the implementation of the Programme has to perform his duty in all earnestness and dedication. The Govt. at the Centre as also at the State level is aware that India is the second most-populous country in the world and in order that it enters into an era of prosperity, progress and complete self-dependence, it is necessary that the growth of the population is arrested. It is with this end in view that family planning programme has been launched by the Government which has not only endeavoured to 8 bring about an awakening about the utility of family planning among the masses but has also attempted to motivate people to take recourse to family planning through any of the known devices or sterilisation operation. The Programme is being implemented through its own agency by adopting various measures, including the popularisation of contraceptives and operation for sterilising the male or female. The implementation of the Programme is thus directly in the hands of the Govt. officers, including Medical Officers involved in the family planning programmes. The Medical Officers entrusted with the implementation of the Family Planning Programme cannot, by their negligent acts in not performing the complete sterilisation operation, sabotage the scheme of national importance. The people of the country who co- operate by offering themselves voluntarily for sterilisation reasonably expect that after undergoing the operation they would be able to avoid further pregnancy and consequent birth of additional child. 34. From the above, it would be seen that the courts in the different countries are not unanimous in allowing the claim for damages for rearing up the unwanted child born out of a failed sterilisation operation. In some cases, the courts refused to allow this claim on the ground of public policy, while in many other, the claim was offset against the benefits derived from having a child and the pleasure in rearing up that child. In many other cases, if the sterilisation was undergone on account of social and economic reasons, particularly in a situation where the claimant had already had many children, the court allowed the claim for rearing up the child. 9 37. Ours is a developing country where majority of the people live below the poverty line. On account of the ever-increasing population, the country is almost at the saturation point so far as its resources are concerned. The principles on the basis of which damages have not been allowed on account of failed sterilisation operation in other countries either on account of public policy or on account of pleasure in having a child being offset against the claim for damages cannot be strictly applied to the Indian conditions so far as poor families are concerned. The public policy here professed by the Government is to control the population and that is why various programmes have been launched to implement the State- sponsored family planning programmes and policies. Damages for the birth of an unwanted child may not be of any value for those who are already living in affluent conditions but those who live below the poverty line or who belong to the labour class who earn their livelihood on daily basis by taking up the job of an ordinary labour, cannot be denied the claim for damages on account of medical negligence. 39. "Maintenance" would obviously include provision for food, clothing, residence, education of the children and medical attendance or treatment. The obligation to maintain besides being statutory in nature is also personal in the sense that it arises from the very existence of the relationship between parent and the child. The obligation is absolute in terms and does not depend on the means of the father or the mother. Section 22 of the Act sets out the principles for computing the amount of maintenance. Sub-section (2) of Section 23 provides 10 that in determining the amount of maintenance, to be awarded to children, wife or aged or infirm parents, regard shall be had to the position and status of the parties; the reasonable wants of the claimant; if the claimant was living separately, whether the claimant was justified in doing so; the value of the claimant's property and any income derived from such property, or from the claimant's own earnings or from any other source and the number of persons entitled to maintenance under the Act. But we are not concerned with these factors in the instant case. A reference to Section 23 of the Hindu Adoptions and Maintenance Act has been made only to indicate that a Hindu father or a Hindu mother is under a statutory obligation to provide maintenance to their children. 42. Having regard to the above discussion, we are positively of the view that in a country where the population is increasing by the tick of every second on the clock and the Government had taken up the family planning as an important programme for the implementation of which it had created mass awakening for the use of various devices including sterilisation opertion, the doctor as also the State must be held responsible in damages if the sterilisation operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who had chosen to be operated upon for sterilisation. 44. Smt. Santra, as already stated above, was a poor lady who already had seven children. She was already under considerable monetary burden. The unwanted child (girl) born to her has created additional burden for her on account of the 11 negligence of the doctor who performed sterilisation operation upon her and, therefore, she is clearly entitled to claim full damages from the State Govt. to enable her to bring up the child at least till she attains puberty.” In this case it has been proved that only right Fallopian tube was operated upon and the left Fallopian tube was left untouched. In the present case, there is no evidence led by the plaintiff that the operation has failed due to negligent act of the doctor and he has failed to take due care and precaution. Their Lordships of the Hon’ble Supreme Court in Jacob Mathew versus State of Punjab and another, (2005) VI SCC 1 have held that in a claim of medical negligence it is enough for defendant to show that standard of care and skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. Their Lordships have further explained in detail that deviation from normal practice is not necessarily evidence of negligence by clarifying following contents: (1) State of knowledge by which standard of care is to be determined, (2) standard of care in case of charge of failure to use some particular equipment or to take some precaution, (3) enquiry to be made when alleged negligence is due to an accident or due to an error of judgment in choice of a procedure or its execution. Their Lordships have also defined the jurisprudential concept of negligence as well. Their Lordships have held as under: “10. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading 12 judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at p.441-442) "Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. …………………. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort." 11. According to Charlesworth & Percy on Negligence (Tenth Edition, 2001), in current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in 13 different circumstances but any one of them does not necessarily exclude the other meanings. (Para 1.01) 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 causally connected with such breach and recognized by the law, has been suffered by the complainant. (Para 1.23) If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (Para 1.24) 21. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):- "The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that 14 particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care." Abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence (ibid, para 8.110) 22. In the opinion of Lord Denning, as expressed in Hucks v. Cole, [1968] 118 New LJ 469, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. 25. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a 15 procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. 33. Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated (See, Black's Law Dictionary, 7th Edition). Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence. 45. M/s Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is again a case of liability for negligence by a medical professional in civil law. It was held that an error of judgment is not necessarily negligence. The Court referred to the decision in Whitehouse & Jorden, [1981] 1 ALL ER 267, and cited with approval the following statement of law 16 contained in the opinion of Lord Fraser determining when an error of judgment can be termed as negligence: - "The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill