STATE OF RAJASTHAN & ANR. VS. LAHARI @ LERI & ors. (S.B.CIVIL WRIT PETITION NO. 2934/06) 1 STATE OF RAJASTHAN & ANR. VS. LAHARI @ LERI & ORS. (S.B.CIVIL WRIT PETITION NO. 2934/06) Dated:- 13.4.2009. HON'BLE MR.JUSTICE SANGEET LODHA Mr. Y.P.Khileri , Deputy Government Counsel, for the petitioner. None present for the respondents even in second round. 1. Heard learned counsel for the petitioner and perused the record. 2. This writ petition is directed against award dated 16.7.05 passed by the Permanent Lok Adalat, Jodhpur, whereby damages quantified at Rs.1,00,000/- has been awarded to the respondent no.1 on account of a child having been born to her inspite of having undergone a sterilization operation performed by respondent no.2, Medical Officer, Government Hospital, Chandpole ,Jodhpur. 3. The respondent no. 1 already having five children i.e. four daughters and one son, underwent a sterilization operation on 11.10.02. A certificate in this regard was issued by the Dr. K.Gyanchandani,respondent no. 2 herein. The sterilization operation failed, leading to birth of yet another child. The respondent no. 1 preferred an application before the Permanent Lok Adalat, Jodhpur for recovery of the damages a sum of Rs.7,00,000/- against the petitioners and the respondent no. 2 STATE OF RAJASTHAN & ANR. VS. LAHARI @ LERI & ors. (S.B.CIVIL WRIT PETITION NO. 2934/06) 2 attributing the birth of the child as aforesaid to negligence of the respondent no.2. 4. The claim was contested by the petitioners herein inter alia stating therein that the operation was carried out on the written consent being given by the respondent no. 1, on her own volition. It was submitted that in the consent form , it was specifically mentioned that there is possibility of failure of the operation and for that the surgeon undertaking operation shall not be held liable. It was submitted that the failure of the operation cannot be attributed to the negligence of the doctor and therefore, the petitioners cannot be held liable for the damages. That apart, it was submitted that on failure of the operation could have been taken care of by the respondent no.1 by undergoing abortion in conformity with the provisions of Medical Termination of Pregnancy Act, 1971. 5. It appears that the parties failed to reach at an agreement during the conciliation proceedings in terms of sub-section (7) of Section 22 C of the Legal Services Authority Act, 1987 , therefore, the Permanent Lok Adalat decided the dispute on merits. After due consideration, the Permanent Lok Adalat found that considering the fact that of 1% failure rate of the operation, the Medical Management of the respondents-State should have acted promptly to arrange the abortion. The Permanent Lok STATE OF RAJASTHAN & ANR. VS. LAHARI @ LERI & ors. (S.B.CIVIL WRIT PETITION NO. 2934/06) 3 Adalat opined that since the additional child has been born to the respondent no. 1 on account of the error on the part of the Medical Management of the petitioners therefore, even if the doctor, respondent no. 2 herein is not personally liable, the petitioners are vicariously liable for deficiency in the services rendered by them. Accordingly, the Permanent Lok Adalat by the award impugned awarded compensation quantified at Rs.1,00,000/- in favour of the respondent no.1 . 6. It is contended by the learned Deputy Government Counsel that merely because the respondent no. 1 having undergone a sterlization operation became pregnant and delivered a child, the respondent no. 2, the operating surgeon and the petitioners- employer cannot be held liable for compensation unless, negligence on the part of the respondent no. 2 in performing the operation is established by producing the cogent evidence. The learned counsel submitted that the Permanent Lok Adalat has categorically found that the respondent no. 2 cannot be said to be negligent in performing the operation therefore, it has seriously erred in awarding compensation in favour of the respondent no.1. In support of his contention, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of “State of Punjab vs. Shivram & Ors.”, 2005(2) WLC(SC), 500. The learned counsel further submitted that the STATE OF RAJASTHAN & ANR. VS. LAHARI @ LERI & ors. (S.B.CIVIL WRIT PETITION NO. 2934/06) 4 failure of the operation was detected when the respondent no. 1 was having only two months' pregnancy therefore, nothing prevented her to go for termination of pregnancy if she was not desirous of having yet another child. The learned Dy. Government Counsel fairly submitted that though the respondent no. 1 is not entitled for any compensation yet, an amount of Rs.20,000/- already paid to her during the pendency of this writ petition shall not be recovered by the petitioners keeping in view the fact that presently, an amount of Rs. 30,000/- is paid to the acceptor of sterilization in terms of Family Planning Insurance Scheme introduced w.e.f. 29.11.2005 revised from time to time in case of failure of sterilization operation. 7. A bare perusal of the material on record goes to show that there was no allegation that the respondent no. 2 who has performed the sterilization operation has committed any breach of the duty cast on him as surgeon or acted with negligence which has resulted in failure of the sterilization operation. No evidence was led by the respondent no. 1 to prove the negligence on the part of the respondent no. 2 in performing the sterilization operation. There is no finding recorded by the Permanent Lok Adalat that the sterilization operation has failed on account of negligence on the part of the respondent no. 2. There is nothing on record to show as to what prevented the STATE OF RAJASTHAN & ANR. VS. LAHARI @ LERI & ors. (S.B.CIVIL WRIT PETITION NO. 2934/06) 5 respondent no.1 to act promptly and go for abortion if she was not desirous of having yet another child. In these circumstances, without there being any evidence, the Permanent Lok Adalat has seriously erred in holding that the petitioners are liable for deficiency in public utility services rendered by them. 8. In Shivram's case (supra) , the Hon'ble Apex Court held as under:- “24. We are therefore, clearly of the opinion that merely 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. 25. The cause of failure of sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the material removed at a subsequent operation of re-sterilisation. The discrepancy between operation notes and the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynecologist in case of failure of sterilization operation. 27. The methods of sterilization so far known to medical science which are most popular and STATE OF RAJASTHAN & ANR. VS. LAHARI @ LERI & ors. (S.B.CIVIL WRIT PETITION NO. 2934/06) 6 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. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to sub- section(2) of Section 3 provides- “Explanation II- Where any pregnancy occurs as a result of failure of any device or method used by any married woman woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.” 28. And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971. 29. The cause of action of 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. 30. For the foregoing reasons, we are of the opinion that the judgments and the decrees passed by the High Court and courts below cannot be STATE OF RAJASTHAN & ANR. VS. LAHARI @ LERI & ors. (S.B.CIVIL WRIT PETITION NO. 2934/06) 7 sustained . The trial court has proceeded to pass a decree of damages in favour of the plaintiffs- respondent solely on the ground that in spite of the plaintiff-respondent No. 2 having undergone a sterilization operation, she became pregnant. No finding has been arrived at that will hold the operating surgeon or its employer- the State, liable for damages either in contract or in tort. The error committed by the trial court, though pointed out to the first appellate court and the High Court, has been overlooked. The appeal has , therefore, to be allowed and the judgment and decree under appeal have to be set aside.”(emphasis added) 9. In view of the position of law settled by the Hon'ble Supreme Court in Shivram's case (supra) which squarely applies on the facts of the present case, in considered opinion of this court, the order impugned passed by the Permanent Lok Adalat is not sustainable in eye of law. 10. In the result, the writ petition succeeds, it is hereby allowed. The impugned award dated 16.7.05 passed by the Permanent Lok Adalat, Jodhpur in Public Utility Service Case No. 22/04 is quashed and set aside. However, the amount of Rs.20,000/- already paid to the respondent no. 1 during the pendency of the writ petition shall not be liable to be refunded. No order as to costs. (SANGEET LODHA),J. ADITYA/-