Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Regular Second Appeal No. 276 of 2000. Date of Decided : June 22, 2010. Kamli Devi. …… Appellant. Versus State of Himachal Pradesh. …….Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes.. For the appellant : Mr. S.D. Vasudeva, Advocate, Advocate. For the respondent : Mr. J.S.Rana, Asstt. Advocate General. Surinder Singh, J (oral). 1. This second appeal was admitted on 7.7.2000, on the following substantial question of law:- “Whether the principle of negligence on the part of the Doctor conducting the tubectomy operation of the plaintiff has been misconstrued, misapplied by the learned first appellate Court while accepting the appeal.” 2. Heard and gone through the record. 3. Precisely the facts can be summed up thus. The plaintiff- appellant was married to Shri Khushal Singh, resident of Roonj, Tehsil Sadar, District Mandi, H.P. During this marriage, she was blessed with two issues, i.e. one male and another female. Thus - 2 - she decided not to have any other child, as such opted to undergo the tubectomy operation, which was got done in a family planning camp, organised by the respondent-State on 31st January, 1987 in village Katindi, but despite that she got impregnated and gave birth to a female child on 2nd August, 1989. Thereafter, she served a notice upon the respondent, for recovery of Rs.50,000/- for the failure of the operation and filed a suit as a forma pauperis, for damages for the alleged gross negligence of the Medical Officer holding State Government vicariously liable. 4. The respondent-State resisted and contested the suit, took up the preliminary objections of estoppel, maintainability and questioned the locus-standi of the plaintiff to institute the suit besides taking the objection regarding the jurisdiction. On merits, the respondent admitted having organised the family planning camp in village Katindi on 31st January, 1987, wherein the plaintiff had undergone the tubectomy operation by a well qualified Medical Officer, however the allegation of negligence against the doctor as alleged has absolutely been denied. It is alleged that the appellant did not take post operative care when the regular menstrual cycle had stopped. She was herself to be blamed to the new arrival in the family as she also did not think to terminate the unwanted pregnancy, if any, within time, thus, the appellant was not entitled for any relief, as sought. - 3 - 5. The parties were at issue and both of them led evidence to support their version. The learned trial Court held since the doctor performing the operation was simply MBBS lacking professional skills, no post-operative facilities were provided in the family planning camp at village Katindi, where the plaintiff and other women were operated upon. The doctors and the staff after performing the operations left the patients in limbo and were not available for any post operative complications to the patients, therefore applying principle of ‘res ipsa loquitur’, the vicarious liability was foisted upon the State and the suit was decreed to the extent of Rs.25,000/-. 6. Against the judgment and decree passed by the learned trial Court in favour of the appellant, the State filed an appeal before the learned District Judge, which was allowed, as such the second appeal has been preferred by the plaintiff in this Court. 7. It is an admitted case of the parties that the appellant had undergo tubectomy operation on 31st January, 1987 in a family planning camp organised by the respondent-State in village Katindi. The appellant when examined in the trial Court as PW2 stated that after the said operation, for 2-3 months, the menstrual cycle was in time, but thereafter, it stopped. Suddenly she realised that she was carrying the pregnancy. She did not think it proper to abort. She also stated that the operation was - 4 - properly performed. She only examined herself. No expert was examined to substantiate the fact that it was the result of any sort of negligence on the part of the doctor performing the operation. Although, she stated that when she noticed the disturbance in the menstrual cycle, she had gone to the local dispensary, but she did not produce any proof to that effect. She admitted that like her, other women were also operated and no operation had failed. But she then stated that her operation was not performed properly. She also admitted that when she was discharged after the operation, she was advised rest and to observe abstinence from sexual intercourse, to which she religiously followed. 8. Against the aforesaid evidence, statement of DW1 Dr. Maulsree Lata, a Gynaecologist assumes importance. She is expert in her field and had performed about 2000 such like operations. She categorically stated that the rate of universal failure of such type of operation is 0.5% to 0.7% despite observing all the precautions even by an expert Surgeon for no fault on his part. 9. DW3 Dr. N.C. Sharma, District Health Officer, had the experience of performing tubectomy/ vesctomy operations, for the last about 20 years. He performed around 3000 such operations. He is a doctor, who had performed the tubectomy operations of the appellant on the said date. He testified that - 5 - before conducting the said operation, all the parameters were checked, which were found normal. Appellant was made to understand about the nature of the operation, then she gave her consent Ex.DW3/A. He stated that no specialization is required for the said surgery, however, he has been in the field since the year 1970. He further stated that failure as such operations could be other than negligence, which are recorded in the book title “Preventive and Social Medicine” by “ Parke Davis” and there are also certain other circulars of the Central Government to this effect. He testified that the failure of tubectomy operation is also because of the regeneration of the tissues, which develops in the fallopian tubes. The fallopian tubes are cut and the piece of 2 cm is removed and both ends of cut tubes are tied with a thread. He stated that sometimes the tissues of the cut end of fallopian tubes regenerate and make a tube and this cannot be attributed to the negligence of the doctor. 10. While examining the case on merits, the learned trial Court also took note of the causes for failure, which are recorded in the publication of the Government of India under the head “Guidelines for Female Sterilisation, 1985 Edition”, the relevant extract of which can be usefully reproduced as under:- - 6 - “13.FAILURE: Pregnancies following sterilisation may be due to the following factors: (i) Unrecognised conception preceding the sterilization operation (interval operation). This is most likely to occur when the operation is carried out in the luteal phase of the menstrual cycle when a fertilised egg may have already been implanted in the endomentrium. The best time, therefore, to carry out interval sterilization is soon after a period i.e. in the first phase of the cycle. (ii) Failure to identify the uterine tube, sometimes the round ligaments have been mistaken for the tubes and resected. This error can be avoided by identifying the fimbriae, before the resection. (iii) Reestablishment of tubal patency. The tubes have a remarkable ability to recanalise, if the divided ends are left in contiguity. It should be realised that no method of tubal sterilization can guarantee a hundred per cent success rate, unless it be total salpingectomy or fimbriectomy. With Pomeroy’s technique, the reported failure rates are less than 1 per cent (0.2 to 0.5 %). The failure rate with laparoscopic sterilisation is somewhat higher.” - 7 - 11. Taking note of the above, the learned District Judge observed that the failure of the operation in the instant case can not be attributed to the said doctor as no negligence has been proved, thus the State is not liable and set-aside the judgment and decree passed in favour of the appellant and dismissed the appeal. 12. In State of Punjab vs. Shiv Ram and others, AIR 2005 SC 3280, Supreme Court held that 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 the 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 can not be claimed. 13. Basically to prove the negligence, the burden lies on the claimant. It is a known fact that the methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite - 8 - of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become impregnated due to natural causes. Once the woman misses the menstrual cycle, it is expected from the couple to approach the doctor and seek medical advice. Section 3(2), Explanation-II under the Medical Termination of Pregnancy Act, 1971 provides that if a woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the aforesaid Act as observed by the Apex Court, but as already stated above, once the couple decided to give birth to the child, it ceases to be unwanted pregnancy and compensation for maintenance of upbringing of the child cannot be claimed from the respondent. 14. Therefore, for the foregoing reasons, I do not find any illegality in the judgment of reversal of the first appellate Court, with respect to the judgment and decree passed by the learned trial Court, as such, the appeal lacks merits and it is dismissed. 15. The parties are left to bear their own costs. (Surinder Singh ) Judge June 22, 2010. (Pds) - 9 -