IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 23-07-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Second Appeal No.673 of 2007 1.Senior Medical Officer, Government Hospital, Kaspa Mannargudi. 2.Joint Director, Health and Medical Sciences, Government Hospital, Thiruvarur. 3.District Collector, Thiruvarur. 4.Dr.A.N.Natharsha, Government Hospital, Mannargudi ... Defendants/Appellants/ Appellants. Versus Ayammal ... Plaintiff/Respondent/ Respondent Prayer: Appeal filed under section 100 of the Civil Procedure Code against the judgment and decree, dated 17.08.2005 made in A.S.No.84/2004, on the file of the Subordinate Court, Thiruvarur which was modified by the judgement and decree made in O.S.No.73/2004, dated 08.04.2004 on the file of District Munsif Court, Mannargudi. For Appellants : R.Revathi Government Advocate For Respondent : No Appearance J U D G M E N T This Second Appeal has been preferred against the Judgement and Decree, dated 17.08.2005, made in A.S.No.84 of 2004, on the file of the Subordinate Court, Tiruvarur, confirming the Judgment and decree, dated 08.04.2004, made in O.S.No.73 of 2004, on the file of the District Munsif Court, Mannargudi. https://hcservices.ecourts.gov.in/hcservices/ 2.The defendants in the suit, in O.S.No.73 of 2004, on the file of District Munsif Court, Mannargudi, are the appellants in the present Second Appeal. The plaintiff in the said suit is the respondent herein. The plaintiff had filed the suit, in O.S.No.73 of 2004, praying for damages, for having conceived and for having given birth to a female child, on 22.03.2000, inspite of tubectomy operation having been performed on her, on 27.11.1995. The plaintiff had stated that she had given birth to four children out of the wedlock with her husband, Chellayan. In view of the general request made by the Government of Tamilnadu, through the media and by other means, requesting the persons to undergo family planning operation, the plaintiff had undergone tubectomy operation, on 27.11.1995, at the Government hospital, Mannargudi. However, the plaintiff had conceived once again and she had given birth to a female child, on 22.03.2000. In such circumstances, the plaintiff had filed the suit, in O.S.No.73 of 2004. 3.In the written statement filed on behalf of the respondent, the issues and the allegations made by the plaintiff, in the plaint filed in the suit, in O.S.No.73 of 2004, had been denied. It has been stated that the plaintiff had been informed about the nature of the operation and its effectiveness. The plaintiff had undertaken the Tubectomy operation with the knowledge that there could be some chances of conceiving, even after she had undertaken such operation. The operation had been done in the year, 1995, and the plaintiff had given birth to a child only in the year, 2000. The plaintiff had been informed that there was some chances of failure in the operation. As such, the claim made by the plaintiff, for damages, against the defendants, is unsustainable and it is devoid of merits. 4.In view of the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration. 1)Whether the plaintiff is entitled for damages, as prayed for by her? 2)What other reliefs the plainff is entitled to? 5. Based on the evidence available on record, the trial Court had come to the conclusion that, eventhough the plaintiff had signed the consent form for undergoing the operation with the knowledge that there was some chances of failure in the process, she cannot be imputed with the knowledge of such information, as she was an illiterate woman.It had also been held that there is no dispute that the plaintiff had given birth to a female child, on 22.03.2000, inspite of the tubectomy operation having being performed by the fourth defendant ,on 27.11.1995. https://hcservices.ecourts.gov.in/hcservices/ 6. The trial Court had also found that the plaintiff had preferred a complaint before the Consumer Redressel Forum, in O.P.No.41 of 2001. The said complaint had been dismissed, as not pressed. The plaintiff had claimed only Rs.5000/- as damages, for the alleged negligence on the part of the defendants, in the suit, in performing the sterilization operation. However, after withdrawing the original petition filed before the Consumer Redressel Forum , the plaintiff had filed the suit, in O.S.No.73 of 2004, on the file of the District Munsif Court, Mannargudi, claiming compensation of a sum of Rs.1,00,000/-. From Ex.B17, dated 13.06.2001, the letter written by the District Family Welfare Department, accepting that the tubectomy operation performed on the plaintiff had been a failure, the trial Court had come to the conclusion that the defendants were liable to pay compensation, as claimed by the plaintiff, in the suit, in O.S.No.73 of 2004. As such the trial Court had decreed the suit, as prayed for, by the plaintiff, by its Judgement and decree, dated 08.04.2004. 7.Aggrieved by the Judgment and decree, dated 08.04.2004, made in O.S.No.73 of 2004, the defendants in the said suit had filed the Appeal, in A.S.No.84 of 2004, on the file of the Subordinate Court, Tiruvarur. 8.By its Judgement and decree,dated 17.08.2005, the first Appellate Court had confirmed the Judgement and decree of the trial Court, dated 08.04.2004, concurring with the findings of the trial Court. 9. In such circumstances, the appellants in the first Appellate Court, who are the defendants, in the suit, in O.S.No.73 of 2004, had preferred the present Second Appeal before this Court, raising following questions, as substantial questions of law: a) Whether the Courts below had erred in not appreciating the fact that the laproscopic birth control operation in itself carries an inherent chance of failure? b)Whether the Court below had erred in awarding damages in favour of the plaintiff/respondent especially in view of the fact that the plaintiff/respondent had miserably failed to substantiate the claim of negligence? c)Whether the Court below had erred in not appreciating the law laid down by the Apex Court as reported in 2005(4) CTC https://hcservices.ecourts.gov.in/hcservices/ 327 and 2005(4) CTC540 wherein the Apex Court has clearly held that the aspect of negligence has to be substantiated before the awarding of damages and the failure of a birth control operation would not in itself automatically result in awarding compensation to the party? 10. After giving sufficient opportunity to the learned counsels appearing on behalf of the appellant as well the respondents, the Second Appeal had been admitted based on the substantial questions of law shown supra. 11. The learned counsel appearing on behalf of the appellants had submitted that the Judgement and Decree, of the Courts below are contrary to law, weight of evidence and the probabilities of the case. The Courts below had erred in not appreciating the fact that the Tubectomy operation performed on the Plaintiff/Respondent has a certain rate of failure, which was made known to the respondent, even before the said operation had been performed. The learned counsel had also submitted that the respondent had not adduced any evidence, either oral or documentary, before the Courts below, to prove that there was negligence on the part of the appellants in performing the Tubectomy operation on the respondent. The Courts below had failed to note that the respondent had known about the fact that there were chances of failure of the operation performed on her, on 27.11.1995 . The Courts below had erred in coming to their conclusions, based on Ex.B17, dated 13.06.2001, wherein, it has been admitted that the operation performed on the respondent was a failure. However, there is no finding by the Courts below that the appellants had been negligent in performing the operation. 12.The learned counsel for the appellants had relied on the following decisions of the Supreme Court, in support of her contentions: 12.(1)State of Haryana and others Vs. Raj Rani 2005(4) CTC 703 it had been held as follows: "3.A 3-Judge Bench of this Court has held in State of Punjab V.Shiv Ram and others, 2005(4) CTC 627, (C.A.5128 of 2002,decided on August 25,2005) that child birth in spite of the sterilization operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous re- canalisation. The doctor can be held liable only in cases where the failure of the operation is attributable to his https://hcservices.ecourts.gov.in/hcservices/ negligence and not otherwise. Several textbooks on medical negligence have recognized the percentage of failure of the sterilization operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognized by medical science. Thus, the pregnancy can be for reasons de hors and negligence of the surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation. Then the question of the State being held vicariously liable also would not arise. The decrees cannot, therefore, be upheld." 12.(2) State of Punjab Vs.Shiv Ram and others (2005)4 M.L.J.132 (S.C.), it had been held as follows: "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". 13.In view of the submissions made by the learned counsel appearing on behalf of the appellants, and on perusal of the records available, this Court is of the considered view that the Courts below had erred in coming to the conclusion that the appellants in the present Second Appeal,who are the defendants in the suit, in O.S.No.73 of 2004, had been negligent in performing the tubectomy operation, on the respondent. 14.From the records available, it is clear that the respondent had not adduced sufficient evidence, either oral or documentary, to show that there was negligence on the part of the appellants in performing the operation. Ex.B17, dated 13.06.2001, cannot be taken to be an admission that the appellants had been negligent by not taking due care and caution in performing the operation. It is only a statement that had been made in the said document that the operation was a failure. https://hcservices.ecourts.gov.in/hcservices/ 15. Further, in view of the decision of the supreme court cited supra, it is clear that the percentage of the failure of the sterilization operation, due to natural cause, varies between 0.3% to 0.7%, depending on the technique or method chosen for performing the surgery. It had also been recognized that the fallopian tubes which are cut and sealed, may reunite and the woman may conceive though the surgery had been performed by a proficient doctor, successfully, by adopting a technique recognized by medical science. In such circumstances, this Court finds it appropriate to allow the second appeal, setting aside the Judgment and decree of the Courts below. Accordingly, this Second Appeal stands allowed. No costs. arr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The District Munsif Court,Mannargudi. 2.The Subordinate Court, Thiruvarur + 1 cc to Special Government Pleader (CS) SR No.53458 VSV(CO) SR/1.10.2010 Second Appeal No.673 of 2007 https://hcservices.ecourts.gov.in/hcservices/