^ • MTf IN THE HIGH COURT OF JUDICATURE AT BILASPUR: CHHATTISGARH Sjngl^ Bench FIRST APPEAL N0JM OF 2006 ^- FIRST APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL APPELLANTS DEFENDANTS ^ 4M. }-W/-ft /.^w .^^•" ^'-<^ "o" ^ RESPONDENT PLAINTIFF PROCLEDURE. 1908 1, 2. 3. State of Chhattisgarh through the Collector, Distt. Durg, Chhattisgarh, Distt. Office, Durg (CG) Chief Medical & Health Officer, through the Chief Medical officer, Hospital Campus, Durg, Tehsil & Distt. Durg (Chhattisgarh) Primary Health Centre, Gunderdehi, Distt. Durg (CG) through the Officer-in-charge, Primary Health Centre, Gunderdehi, Distt. Durg (Chhattisgarh) Smt. Manju Bai, aged about 30 years, W/o Suresh Chandrakar, Caste - Kurmi, Occupation - Housewife, R/o Village - Kawandur, P.0. Kawandur, Tenshi - Gunderdehi, P.S. Gunderdehi, Distt. Durg (Chhattisgarh) CLAIM IN APPEAL FOR SETTING ASIDE THE DEFREE OF COMPENATION Versus ^. AZALJ-UE:F^AT- XI-HC-78 +11*1^1 $b+11<»» s^r ^iiqi^i^, ^Tfl^Ji<o, [^oii^y - ./?.?.-../J.Q:../.<:Li ^[ 200 g- 3<l^l ^5|cft (<ic<i^<s<^) 3TT^T^F)Tf^TW ^TT3TR%^:TW r-<^. III* ?^Trw^f?cT^n^T Gbi^I<ri41Ti ^i^ciT^te^'<Ri^i< ^3:rf^T3TT^T 1LL2007 Mr. V.D. Vaswani, 6|ovemment Advocate for the Sfate/^ppelkiints. Mr. R.IC Gumasta, Advoca^-B for the Respondent. Heard. | This appeal is directed ^gamst the judgment and decree dated 30.12.2005 detivered b^ Hmi Addittonal bistrict Judge, burg, in Civil Suit No. 98/200+. whereby a compensation of Rs. 67.000/- wos awxrded with intcrest @ 7% from the date of the jud9ment to the respondent/p|aintiff on account of failure of sterjlisation bperation performe|d on the respondent on 28.2,1998 at Primary Health Centre, 6unda|rdehi. I have perused the p^xint. Negligence of the doctor conducting sterilisation operotio(i is neither pleaded nor proved. In -the case. of State of reported in (2005) 7 5CC 1. the ^pex Court held as under:- "A^erely because |a woman having undergone a tiable for compensation o of unwonted child. The c Punfab vs. Shiv ftam and others. sterid'sation operation b4c<une pregnant and dedvered a didd, the operating surgefm or hte employer cannot be hetd [i account of unwanted pregnancy ]fum m Torr in sudi cases can be sustdned only if there wjis negligence on Ifie part of the surgeon in performing th^ surgery and not on account of childbirth. The proof of negligence shall have to satfsfy Bolam's test, (1957) 2 All ^K 118,121 D-F, set out in Jacob Matfiew case, (2009) 6 SC(C 1, at p. 19, para 19. Failure due XI-HC-78 CT^T^T^Jch (mTSTT^I^WW [r^ \HUt ...^ 3^T ^iqi<nq, ^Tfl^^Ko, ^dl^^< ^ll+l^l ?b+lich ^ 200 341^1 ^<5icb (l:I^3^T^T) ?^<TTW ^cT^TT^T <=:bi^[^i41-i HiH<yiT^:tel:^'<r^^i< ^3Tf^T3Tr^T ta natural causes would )t provicte any ground for a ctaim. concejved Ihe chiW to 90 or not It is for the woman who to go for medical termina^fon of pregnancy. HavOTg gathered the knowtedge of corwe^tion in sp'rte of having wicter^one •riie steritization operati4n. if the cpiq>le opts for bearir^ the child, it ceases to be| on unwoanted dtild. Comipensation for maintencOTGe and upb|ringOTg of such a diild comnot be cfaimed. Once ihe woman| misses the menstrual cycie, it is expected of the coupte t^ vteft the doctor and ssek jtiedical advice. 5ection 3(2) reo^l with E?q»tanatton EC thereto, of the Aft&dical Termination|of Pregnancy Act. 1971 provides under the kxw, a valid on|d legal ground for tesrmination of pregnancy. If 'the wo^nan h<xs ajffered oan imwcmted pregrmncy, it can be t^rmmated and this is legaf <md permissible under the A^edical Terntination of PnByiancyF Act, 1971. XXX XXX I XXX XXX So vdso, the surgecjn ccmnot be hetd liable in controct unless Ihe plaintiff altege|s and proves 1+iat •the surgeon had assured 100% exclusion of pre9noncy after the sur^ry ond it was only on the basis of such assurcmce that the pfaintiff wos persuaded to imder^o airgery. Ordvewsr^ a surgeon does not offer such guar^ntee, Where a ctoctor contnxcted to carry out a parfrjcul^u1' operation on a patient and a particutar result was e^qjected, Ihe court woutd imply into 1+ie contact belween the ^loctor ond Ihe patient a term that the operation would be co|rried outwith recK»nablec<u*e <md skiti, but woulcl be s(o<^ to impfy a term or unqucdified coffaterotl worranty that ^he e^pected resutt »wuJdacttKitly be achieved, since it <4as probable that no resfwnsA^s medicat mon would intend The plaintiffs have^ ^o gwe sudi a warronty. not alleged that the hdy airgeon trilisation operation wos not who performed the competenT to perform l1|ie surgery and yet ventured inTo £ XI-HC-78 3:fT^T^T^i<=b cTSTT3^T5h^i°b IP* IINT. 3^T ^l^lc^l^, ^TTl^41(o, [stdKriy +11*1^1 ?b+1icb ^ 200 311^1 ^5ich (l^3^^) 5^<TTW^rf?cTW^r dbmgit. It is neh+ier the <=t)i^?^i41^ ^i^i^T^te^iRi^K ^^Tf^TW^T ^ase of the ptajnKffs, nor has <my findin9 been arrived at byjony of 'tfie courts below •rfiat the tady surgeon was negligen^" in performing the surgery. The present one is not a case v^here the AinyBon whp performed 1+ie surgery has committ< as a surgeon* The surc known cnd recoQmsed by simpte case of sterilisatj duly perforoied. The tric decree of damcges in fa^ sotely on lliis ground. No breach of cany duty cast on her was performed by a fechnique licd science. It is a pure and operation having failed tfiough court has proceeded to pass a ir of -the plaintiff-reqaondents finding has been arrived at that will hold the operating sur^eon or its employer - the State, liable for damages eithcr |n cwitract or m tort. Th®error committed by -rfie triat <^>urt, though pointed out to the f'trst appellate court <a^d the High Court, has been overlooked. The appeal h^s, -therefore, to be allowed ond Ihe judgment and decree i^nder appeal have to be set aside." From perusal of the recorjd of Civil Suit No. 9B/2004, it is ctear that -the oppeltant5/def|endant had also owunirwd £^'. C.B.Prasad, D.W.-l, who had con^lucted the sterilisatron operation on the respondent/ptaintiff. ^t emerges -riierefrom that -rtie responctent/plaintiff was advise^ husbond for a period of 3 operation, since thene was a to maintain cdbstinence from her Imonths after the stBriliaition possibility of failure of the sterilisation. There is nothmg c^ record to dww that vrfwn the respondent/phintiff conceived i^imedkitely after the sterili»ition operation, she went for termitiation of pregnancy, w^iidi was XI-HC-78 ^cT;^Pn^R, ^tO^^Ko, fsKrll^y *ii^cii a»*iich ^ 200 3ll^lMsi«h(l{c|I^6J<^T) 3TT^T^rR^i<+) cTSH'3T[^T$b^ich ^ Bablu iKi: < r^ ?^TTW^f?cT^n^T — ^ — permitted under law. Thu^ respondent/plaintiff Aould not b^ In view of the principles Stat®of Pun iab vs. Shiv Ram cuid the child bom to the said to be om unwomted child. jenundated by the Apex Court in others (supra). in -the dbssnce of pleading or proof of negli9enc^ surgeon, the ctaim in tort must the impugned judgment cannot b^ to be set aside. As a reailt, Ihe appeal is OBid decree dated 30.12.2005 d^tivered is set ouside. The aiit is dismisse|d. costs. <=t)i^[^i4)-i ^i^^T^te11:^t"<Ri^K ^3T^'R'3:n^r on the parl- of the operatin9 |fail< In this view of 1tie matl'er, sustained undw law <xnd is liable ^xlbwed. The impuyied ydqmen^ in Civil Suit No. 9B/2004 There diatl be no order as to Sd/- Dilip Raosaheb Deshmukh Judge P.T.O.