IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 30.11.2010 CORAM THE HONOURABLE MR. JUSTICE M. VENUGOPAL A.S.No.907 of 2004 and C.M.P.No.13016 of 2004 1.Union of India represented by Chief Secretary, Pondicherry. 2.Medical Superintendent, Government General Hospital, Karaikal. 3.Dr.Jothi Boblee James, Specialist Grade II, Maternity Hospital, Pondicherry. ... Appellants/Defendants Vs Revathy ... Respondent/Plaintiff PRAYER: Appeal filed under Section 96 of Civil Procedure Code as against the Judgment and Decree dated 20.09.2002 in O.S.No.61 of 2001 passed by the Learned Additional District Judge, Pondicherry at Karaikal. For Appellants : Mrs.N.Mala Government Pleader (Pondicherry) For Respondent : Mr.T.Susindran JUDGMENT The Appellants/Defendants have preferred the present Appeal as against the Judgment and decree dated 20.09.2002 in O.S.No.61 of 2001 on the file of Learned Additional District Judge, Pondicherry at Karaikal. 2.On an appreciation of oral and documentary evidence on record, the trial Court viz., Learned Additional District Judge, Pondicherry at Karaikal while passing the Judgment in O.S.No.61 of 2001, dated https://hcservices.ecourts.gov.in/hcservices/ 20.09.2002 has among other things observed that 'the Respondent/Plaintiff has aggrieved to undergo tubectomy operation on the assurance of the Third Appellant/Third Defendant that if the said operation is performed again the Respondent/Plaintiff will get beget a child and as such under the supervision of the Third Appellant/Third Defendant has undergone the Tubectomy operation and has also further observed that if the Third Appellant/Third Defendant under Medical Team has performed the operation on the Respondent/Plaintiff with care and caution then there is no possibility for the Respondent/Plaintiff to become pregnant and to deliver the child and therefore because of the Doctors carelessness and negligence the Respondent/Plaintiff has become pregnant and delivered a child and consequently awarded a sum of Rs.25,000/- to the Respondent/Plaintiff towards Pain and Sufferings, granted a sum of Rs.25,000/- towards mental agony and for up-bringing of the child and for marriage and other maintenance expenses awarded a sum of Rs.1,00,000/-, then in all the Respondent/Plaintiff has been awarded with a sum of Rs.1,50,000/- as compensation and the said amount has been directed to be paid by the Appellants/Defendant 1 to 3 jointly and severally. Further, the First Appellant/First Defendant has been directed to pay the aforesaid amount of compensation on behalf of the Second and Third Appellants/Second and Third Defendants together with interest @12% per annum from the date of filing of the Plaint till date of payment along with costs etc., and accordingly, passed a Decree to that effect. 3.Before the trial Court, three Issues have been framed for trial in the main suit for adjudication. 4.On the side of the Respondent/Plaintiff witness PW1 has been examined and Ex.A.1 to Ex.A.13 have been marked. On the side of the Appellants/Defendants witness DW1 has been examined and Ex.B.1 to Ex.B.4 have been marked. 5.The Appellants/Defendant being aggrieved against the Judgment and Decree dated 20.09.2002 in O.S.No.61 of 2001 passed by the trial Court have projected the present Appeal before this Court. 6.The point that arises for consideration in this Appeal is Whether the Appellants 1 and 2/Defendants are vicariously liable for the payment of restricted compensation of Rs.3,00,000/- on account of the Third Appellant/third Defendant's direct responsibility in regard to the negligent performance of the tubectomy operation upon the Respondent/Plaintiff on 03.03.1998 at General Hospital, Kariakal?. 7.The contentions, discussions and findings on Point Nos.1 and 2: According to the Learned Government Pleader (Pondicherry) appearing for the Appellants submits that the trial Court has failed https://hcservices.ecourts.gov.in/hcservices/ to appreciate that the stand of the Government is that there is 0% of failure of case undergone in respect of a Tubectomy operation due to natural course which is an extraordinary case and this does not mean that the Doctor who performed the Tubectomy operation has been at fault nor there has been any negligence or carelessness. 8.It is the contention of the Learned Government Pleader (Pondicherry) for the Appellants that after Delivery on the person who has undergone Tubectomy operation there is a possibility of natural failure in the case of the certain percentage which cannot be attributed to any act of negligence and the treatment in respect of the Respondent/Plaintiff has been completed as per the requirements and obviously in that event there is no scope for negligence. 9.The Learned Government Pleader (Pondicherry) for the Appellants urges before this Court that the Respondent/Plaintiff has not adduced any evidence to show that there has been any act of negligence on the part of the Doctor while performing the operation and moreover, the trial Court has incorrectly determined the random sum as compensation in respect of mental agony, Pain and Sufferings, Future Maintenance of the child and in any event, the award of Rs.1,50,000/- as compensation is unjustified one without any factual or legal basis. 10.Lastly, it is the contention of the Learned Government Pleader (Pondicherry) for the Appellants that there is a difference between the natural failure in sterilization process and failure on account of negligence in performing operation which aspect has not been appreciated by the trial Court in real and proper perspective and therefore prays for allowing the appeal in the interest of justice. 11.In response, the Learned Counsel for the Respondent/Plaintiff submits that the trial Court on a careful scrutiny of the oral evidence of PW1, DW1 and also upon analysing the documents filed on either sides has come to the clear conclusion that only because of the carelessness and negligence of the Doctors in regard to the performance of the conduct of Tubectomy operation, the Respondent/Plaintiff has become pregnant and delivered a child and accordingly, granted a sum of Rs.1,50,000/- as compensation together with interest @ 12% per annum from the date of Plaint till date of realisation etc., to be paid by the Appellants/Defendant 1 to 3 jointly and separately and that the First Appellant/First Defendant has been directed to pay for on behalf of the Appellants 2 and 3 and the well considered Judgment of the trial Court need not be interfered with by this Court sitting in Appeal. 12.At this stage, it is necessary for this Court to make an useful reference to the averments made by the Respondent/Plaintiff in https://hcservices.ecourts.gov.in/hcservices/ the Plaint. In the Plaint, the Respondent/Plaintiff has stated that her husband is a Toddy Tapper, earning a very meagre income totally insufficient to satisfy his needs and however having the children an unavoidable one. She has given birth to two female children namely Meena, born on 14.08.1996 and Soundarya, born on 24.02.1998 and also has registered their birth before the Registering Authority. Further, she has given birth to the second Female child Soundarya on 24.02.1998 after getting herself admitted in the General Hospital, Karaikal in Maternity Ward as an inpatient No.2456. On the advice of the Second and Third Appellants/Second Defendant and Third Defendant she has decided to undergo sterilization by going in for a Tubectomy operation (P.S) so that the future birth of the children can be avoided in the assured manner. 13.That apart, the Respondent/Plaintiff has also averred in the Plaint that she has undergone the Tubectomy operation on 03.03.1998 at General Hospital, Karaikal by the third Appellant/Third Defendant personally as head of the Department and with the assistance of the other Doctors and Staff and further she has been asked to undergo Post Operative Care and treatment on 09.03.1998, she has been discharged and a necessary discharge slip to that effect has been issued to her. 14.The stand of the Respondent/Plaintiff is that after the discharge from the Hospital, by the acquired normal health, the Doctors at General Hospital, Karaikal has advised to undergo normal living and to her dismay she conceived to deliver the third child despite the performance of sterilization performed. However in July 1999, she has conceived a child as confirmed by the Doctors at General Hospital at Kariakal who advised that the child in the womb has been at the advance stage of pregnancy beyond the limit of going in for abortion etc. 15.According to the case of the Respondent/Plaintiff, she has given birth to third female child named Moogambigai on 16.12.1999 and the said birth has been registered with the Karaikal Municipality. Again, she has undergone the operation of Tubectomy / Sterilization (P.S) on 21.2.1999 and on full cure of wounds she has been discharged on 28.12.1999. 16.The core contention to be forwarded on the side of the Respondent/Plaintiff is that the Respondent/Plaintiff begetting the third child after sterilization is the result of clear negligence and the failure of operation itself is prima facie proof of negligence and improper performance of operation due to lack of required precision assured and required to be performed. Therefore though she has quantified the compensation claimed in the Plaint at Rs.5,00,000/-(Rupees Five Lakhs only) in all she has restricted her claim only to Rs.3,00,000/-(Rupees Three Lakhs only). 17.In the written statement filed by the Third Appellant/Third https://hcservices.ecourts.gov.in/hcservices/ Defendant it is among other things mentioned that there is no compulsion in regard to the use of Family Planning and the people are at liberty to use the same or keep off from it and in the instant case, the Respondent/Plaintiff decided to under Tubectomy operation (puerperal sterilization) voluntarily and has given her consent to the said operation and her husband namely G.Gajendiran has also signed in the consent declaration and in fact no assurance has been given to the Respondent/Plaintiff either on her behalf or on behalf of other Defendants to that effect that she can go about enjoying the marital life without risk of being conceived. Moreover, the Third Appellant/Third Defendant has pleaded in the Written Statement that it is a fact she has a supervisory role as Head of the Department but she has no hand in the actual and physical tubectomy operation on the Respondent/Plaintiff conducted on 03.03.1998 and after the post operative treatment, the Respondent/Plaintiff has been discharged in a sound health condition etc. 18.In this connection, this Court pertinently points out that the Third Appellant/Third Defendant in her statement in Para 3 has averred as follows: "3.In a book captioned as 'The Essentials of Contraceptive Technology' published by Johns Hopkins Population Information Program, published of Population Reports of 1997 Edition under Chapter-9 'Female Sterilization' at Pages 9-4 and 9-5. The relevant portion is as follows very effective and permanent: In the first year after the procedure 0.5 pregnancies per 100 women (1 in every 200 women) Within 10 years after the procedure 1.8 pregnancies per 100 women (1 in every 55 women). The technique usually followed is modified pomeroy's Technique which is universally acclaimed to be safer, still the percentage of failure of cases in Tebectomy operations is estimated at 0.5 per 100 women. This is due to the process of natural recanalisation which occurs in the fallopian tubes in natural extraordinary cases. This does not mean that the doctor who did the Tebectomy operation was at fault, negligent and careless. The negligence so called often as medical negligence, must have a direct nexus to the actual act of Tebectomy operation and the plaintiff's bounden duty to prove the element of negligence positively particularly in what aspect of phase of the Tebectomy operation. Just because the plaintiff has suffered another pregnancy after the Tebectomy operation, the courts of law should not be invited to infer a case of Medical negligence on the part of the Doctor who did the Tebectomy operation. In this case the Tebectomy operation was not done by this Defendant." https://hcservices.ecourts.gov.in/hcservices/ 19.Also, the Third Appellant/Third Defendant in the Written Statement has stated that she has been transferred from Karaikal to Pondicherry in June 1999 and she has not been aware as to whether the Respondent/Plaintiff has been pregnant and in an advanced state of pregnancy etc. Further, she has not personally aware as to whether the Respondent/Plaintiff has given birth to a third Female child on 16.12.1999 because of the fact that she has not been serving at Government Hospital, Karaikal at that point of time. 20.Finally, the Third Appellant/Third Defendant also in the Written Statement has mentioned that speculative claims made by the Respondent/Plaintiff in regard to the future needs or development cannot be countenanced etc. 21.The evidence of PW1 (Respondent/Plaintiff) is to that effect that on 16.12.1999 she has been admitted for delivery for the third child after the sterilization failure and has given birth to a female child name Moogambigai on the very same day and on 22.01.1999 she has undergone an operation of Tubectomy/Sterilization and after full cure of wounds she has been discharged on 28.12.1999 and moreover, the Third Appellant/Third Defendant by not personally attending the operation on her allowed a Junior Doctors who are not so efficient and thereby allowed negligence in the conduct of the operation upon her on 03.03.1998 and made a suffer by begetting another child and which made her to undergo sterilization for the second time etc. It is the further evidence of PW1 (Respondent/Plaintiff) that she has quantified the Education, Food and Medical facilities at Rs.3,00,000/- in respect of the Third child and towards marriage expenses she has claimed a sum of Rs.1,00,000/- and further has claimed a sum of Rs.1,00,000/- for the mental agony, suffering in physical strain for two operations and delivery etc. and has made a claim for Rs.5,00,000/- in aggregate. 22.In short, the evidence of PW1 (Respondent/Plaintiff) is that the Third Appellant/third Defendant's subordinate Doctors have not conducted the operation properly and also that the third Appellant/third Defendant totally failed to supervise the operation upon the Plaintiff as to whether the operation has been properly performed or not and therefore all the Appellants/Defendant are liable to pay a compensation claimed by her. 23.DW1 (Third Appellant/Third Defendant) in her evidence has deposed that the Respondent/Plaintiff has come for admission to the Hospital on 20.02.1998 for the purpose of delivery and she has undergone Tubectomy operation on 03.03.1998 and at the time she has been the head of the Unit No.2 and that the Tubectomy operation has been carried out by well trained Assistant under her supervision the child delivered by the Plaintiff is a Female child and that she has been transferred to Karaikal to Pondicherry in June 1999 and she is not aware of the developments or event that has taken place, after transfer to Pondicherry in so far as Respondent/Plaintiff is https://hcservices.ecourts.gov.in/hcservices/ concerned. 24.According to the evidence of DW1 she and other Doctors have not given any assurance to the Respondent/Plaintiff that there is no risk of being conceived if the Plaintiff goes about the marital life with a spouse after Tubectomy operation and she has not given any assurance to the Respondent/Plaintiff and moreover she has no direct participation in the tubectomy operation on the Respondent but only as a supervisory role. 25.Also, the evidence of DW1 (Third Appellant/Third Defendant) is to the effect that the Tubectomy operation performed upon the Respondent/Plaintiff by the trained Assistant under her supervision is known as 'Modified Pomeroy's Technique' which is recognised nationally and internationally as a safer technique and under this technique, the two fallopean tubes are identified, tied separately cut and the ends are crushed and the two ends are separated in order to avoid recanalisation and that the recanalisation of the fallopean tubes despite precautions takes place due to natural healing process. 26.Continuing further, DW1 (Third Appellant/Third Defendant) goes on to add that it is an accepted fact that such failure occurs and the rate of such failure is calculated at 0.5% and she denied the averment made in the Plaint that the later conception and delivery after tubectomy operation has been due to the negligence, carelessness, want of due skill and also that during the said operation proper care of diligence besides skillfulness have been paid to such patients that medical care and expert supervision and therefore, the claim of the Respondent/Plaintiff for compensation against her and the Appellants/Defendants is baseless and hence the suit is liable to be dismissed. 27.At this stage, it is appropriate for this Court to make a significant mention that DW1 (in her examination) has categorically stated that after the operation of P.S on the Respondent/Plaintiff she has instructed her that even after the operation by normal living the chances of conceiving a child is not ruled out and there has a format in the case sheet for the signature of the patient that if she comes for voluntary treatment and another clause for the signature of the motivator, if there is a motivator and they used to fill the form only if there is a motivator and not when the patient comes voluntarily but they will get the signature in the form with the caption consent for operation and moreover there is no explicit entry in the case sheet that she has been informed about the chance of getting the child, But the consent for the operation is self explanatory and includes all the complications including failure rate for the P.S. Operation etc. 28.That apart DW1 (Third Appellant/Third Defendant) in her cross examination has stated that her name or signature is found on the https://hcservices.ecourts.gov.in/hcservices/ operation note as a person who conducted or supervise the operation in Ex.B.3 and she denies that the signature of the Respondent/Plaintiff and her husband have been obtained without making them know about the implications and not for the purpose of Statistics. 29.In support of the contention that just because the Respondent/Plaintiff has become pregnant and delivered a child after undergoing a sterilization operation/Tubectomy operation , the operating Doctor or the person who conducted supervision of the operation cannot be held liable for damages/compensation on account of undesired pregnancy or unwanted child, the Learned Counsel for the Appellants/D1 to D3 submits that in a tortious claim is sustainable legally only if there is negligence on the part of the Doctor/Surgeon who performs the surgery and in the present case, the Respondent/Plaintiff has not proved negligence either on the part of the Third Appellant/Third Respondent are the trained Assistant who performed the operation on the supervision of Third Defendant etc., and therefore, the claim made by the Respondent/Plaintiff in the suit is to be negatived. 30.The Learned Counsel for the Appellants/Defendants cites the decision of the Honourable Supreme Court State of Punjab v. Shiv Ram and Others 2006-1-L.W.331, at Pages 332 and 333 wherein it is held as follows: "The plaintiffs have not alleged that the lady surgeon who performed the sterilization operation was not competent to perform the surgery and yet ventured into doing it. It is neither the case of the plaintiffs, nor has any finding been arrived at by any of the courts below that the lady surgeon was negligent in performing the surgery. The present one is not a case where the surgeon who performed the surgery has committed breach of any duty cast on her as a surgeon. The surgery was performed by a technique known and recognised by medical science. It is a pure and simple case of sterilization operation having failed though duly performed. No prevalent method of sterilization guarantees 100% success. The causes for failure can well be attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon. Authoritative Text Books on Gynaecology and empirical researches which have been carried out recognise the failure rate of 0.3% to 7% depending on the technique chosen out of the several recognized and accepted ones. The technique which may be foolproof is removal of uterus itself but that is not considered advisable. It may be resorted to only when such procedure is considered necessary to be performed for purposes other than merely family planning. We are, therefore, clearly of the opinion that merely https://hcservices.ecourts.gov.in/hcservices/ because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam's test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee. The methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes." 31.He also relies on the decision of Honourable Supreme Court State of Haryana and Others v. Raj Rani 2006-1-L.W.580, where in it is held that 'A Doctor can be held liable only in case where the failure of the operation is attributable to his negligence and not otherwise'. Proceeding further, in the aforesaid decision it is also held that "The pregnancy can be for reason de hors any negligence of the surgeon and in the absence of proof of negligence a surgeon cannot be held liable to pay compensation and also the question of the State to be held vicariously liable also would not arise." 32.He also invites the attention of this Court to the Judgment of this Court in A.S.No.945 of 2005 dated 09.12.2009 between Union of India and two others v. Valarmathy, wherein this Court in Para 14 and 15 has among other things observed as follows: "14.Considering the fact that the plaintiff/respondent herein has failed to prove that there is medical negligence, but as per recommendation made in the decision reported in 2006-1-L.W.331, State of Punjab v. Shiv Ram and others, a Family Planning Insurance Scheme has been introduced by the Government of Pondicherry and exgratia payment of Rs.30,000/- is fixed for the person who gave birth to a child after sterilization. So, the Appeal Suit is liable to be allowed and the appellants shall pay the https://hcservices.ecourts.gov.in/hcservices/ exgratia payment of Rs.30,000/- to the victim/respondent herein in pursuance of Family Planning Insurance Scheme. The Points Nos.1 to 3 are answered accordingly. 15.In fine, i.The Appeal Suit is allowed. ii.Consequently, C.M.P.No.16758 of 2005 is closed. iii.The Judgment of the trial Court is set aside. iv.In trial Court, O.S.No.58 of 2001 is dismissed. v.Both parties are directed to bear their own costs. Since the suit is filed under Order 33 Rule 1 CPC, the Government is directed to bear the Court Fee." 33.Further, the Learned Counsel for the Respondent cites the decision of this Court Dr.Alice George v. Lakshmi 2007 (1) CTC 496 at Page 500 wherein at Paras 9 and 10, it is held hereunder: "9.The plaintiff sought for damages alleging that there was negligence on the part of the first defendant when the sterilization operation was performed on the plaintiff. The plaintiff who had already three children, underwent the family planning operation in view of her feeble health and also the poor financial condition. It is also clear that she underwent the operation only on instructions, advises and also consultation with the appellants/defendants. It was not the case of the defendants that without their advise she underwent the operation. It is quite clear from the materials available that even after the sterilization operation namely tubectomy, was performed on the plaintiff by the first defendant in the branch of the second defendant hospital, she conceived and delivered the fourth child. It was also clear that the plaintiff was advised not to take treatment for abortion since it would cause complications in her health. The only defence was that even after the sterilization operation, there was approximately 0.5% of pregnancy; and that though the family planning operation was carefully done, the plaintiff's case was one in which the pregnancy occurred after sterilization for which neither the Doctor who conducted the operation