{1} fa66505.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.665 OF 2005 1 Chief Executive Officer, Zilla Parishad, Latur, District Latur. 2 Dr. J.A.Bopalkar, age: major, Occ: Pensioner, R/o P.O. Primary Health Centre, Chincholi, Tq. Latur, District Latur. Appellants Versus 1 Sau. Kalawatibai w/o Namdeo Jogdand, age: 33 years, Occ: Household, R/o Chincholi, Tq. Latur, District Latur. 2 The State of Maharashtra, through the Collector, Latur, District Latur. 3 Civil Surgeon, Civil Hospital, Latur, District Latur. Respondents Mr. V.D.Hon, advocate for appellants. Mr. N.P.Patil Jamalpurkar, advocate for respondent no.1. CORAM : R.M.BORDE, J. Reserved on : 14 th June, 2011 Pronounced on: 11 th August, 2011. JUDGMENT: 1 This is an appeal taking exception to the judgment and decree dated 04.04.2005, passed by the Joint Civil Judge, Senior {2} fa66505.odt Division, Latur in Special Civil Suit No.116 of 2001. 2 Respondent No.1 - original plaintiff instituted suit claiming damages to the tune of Rs.4,41,000/- from the defendants towards compensation on account of failure of the sterilization operation performed on her person. 3 Plaintiff is a married woman and is wife of one Namdeo Jogdand. She has two sons by name Narendra and Lahu and at the relevant time, they were aged about 5 years and 3 years, respectively. She was advised to undergo family planning operation in the year 1998, as such, she approached the Medical Officer of village Chincholi (B) and according to the plaintiff, family planning operation was performed on her person by defendant no.2 on 28.08.1998. Even after performance of family planning operation, she became pregnant and gave birth to a female child on 02.10.1999. Plaintiff claims that a female child was born to her on account of failure of first family planning operation. She again approached Rural Hospital at Omerga and underwent second family planning operation on 20.10.2000. Plaintiff contends that she hails from a poor family and cannot bear the burden of upbringing of third child. Plaintiff claims amount of compensation, which would be required for maintenance and upbringing of the child and for her marriage expenses. The plaintiff issued a notice to the defendants on 16.11.2000 calling upon them to pay compensation, however, notice was not replied by the defendants. As such, she proceeded to file a suit claiming damages against them. 4 Defendants No.1 and 3 failed to file written statement, {3} fa66505.odt however, the suit was contested by defendants no.2 and 4 by presenting joint written statement at Exhibit-16. Defendants admit performance of first family planning operation on the person of plaintiff. According to the defendants, she was instructed by them that in the event she remains pregnant even after performance of operation, she shall get her pregnancy terminated medically. A consent form was got executed which contains the instructions as stated above. According to defendants, there is failure rate to the extent of 0.6% in tubectomy operation and as such, they cannot be held liable in respect of payment of compensation. Defendants, as such, denied liability in respect of payment of compensation and prayed for dismissal of the suit. 5 Plaintiff, in order to substantiate her case, examined herself and her husband as witnesses. Plaintiff also examined Dr.Ramgir Kailasgir as witness who performed her second family planning operation. Witness no.4 examined on behalf of plaintiff is Dr.Shivaji Bhise. Considering the evidence led by plaintiff, the trial Court held that there was negligence on the part of defendant no.2 in issuing the certificate in respect of successful performance of sterilization operation, as such, held defendant no.2 responsible for the negligence in issuing the certificate. The trial Court directed defendants no.1, 2 and 4 to pay compensation to the extent of Rs.75,000/- to the plaintiff. 6 I have gone through the pleadings and evidence recorded in the matter, so also the judgment delivered by the trial Judge. I have also heard arguments advanced by learned Counsel for respective parties. 7 Shri Hon, learned Counsel appearing for the appellants, {4} fa66505.odt has invited my attention to the finding recorded by the trial Judge to the effect that defendant no.2 is not the doctor who performed family planning operation, but he has been held to be negligent in issuing the certificate in respect of successful performance of tubectomy operation on the person of the plaintiff. It is the contention of appellant – original defendants no.2 and 4 that merely because plaintiff gave birth to third child does not give her cause of action for presenting the suit claiming damages. The failure due to natural causes could not provide any ground for claiming compensation. If the woman becomes pregnant, it is open for the woman to opt for medical termination of pregnancy. It is only in the cases where there is a failure of sterilization operation on account of negligence of the Surgeon, compensation can be directed to be paid to the plaintiff. It is contended that in the instant case, a finding is recorded by the trial Judge that defendant no.2 is not the surgeon who has performed the operation, but the fault attributable to him is in respect of issuance of a certificate in respect of performance of tubectomy operation. Plaintiff has claimed damages on account of her giving birth to third child after performance of operation. It was open for her to approach the doctor and get the pregnancy terminated medically, however, plaintiff opted for the third child and thereafter got performed second family planning operation. 8 The appellants have also invited my attention to the medical reports placed on record which indicate that there was some complication revealed during performance of family planning operation, as such, right fallopian tube, which had developed adhesions, was not crushed and the patient was advised to approach higher medical centre. The doctor (P.W.3), examined by the plaintiff, has also admitted that right {5} fa66505.odt fallopian tube has developed adhesions and it was risky for the surgeon, performing surgeries at the primary hospital level, to proceed to perform complete surgery. It is, thus, contended that there was no negligence on the part of the operating surgeon and there is no such finding recorded by the trial Court that the surgeon performing the operation was negligent, whereas, the negligence, that is attributed, is in respect of issuance of a certificate. It is, thus, contended that the judgment and decree passed by the trial Court needs to be quashed and set aside. 9 Shri Patil, learned Counsel for the plaintiff, has supported the judgment and decree passed by the trial Court. It is his contention that a poor lady had to suffer because of failure of the family planning operation and she is burdened with the expenses of upbringing of unwanted child. The judgment and decree passed by the trial Court, therefore, needs to be maintained. 10 Plaintiff no.1, who has examined herself before the Court, has stated about the performance of first family planning operation on her person on 20.08.1998. The witness has, in clear terms, admitted that after performance of the operation, she was given to understand by the doctor that she may conceive a child even after performance of such family planning operation. She is stated to have signed the consent form after being given to understand that even after performance of the operation, there is likelihood of conception leading to child birth. The limitations in the performance of operation were thus explained to the witness. The witness has also identified her signature as well as her husband’s signature below the memorandum. page-3 of the medical papers. The witness is 9 th standard passed and she has admitted that {6} fa66505.odt she was cautioned as regards the possibility of she becoming pregnant even after performance of family planning operation. The medical papers Exhibit-43 lend support to the contentions of the defendants that the plaintiff as well as her husband were warned of the complications, which may arise in future. 11 Apart from the statement of the plaintiff and her witnesses, there is oral evidence of Dr.Ramgir Kailsgir and Dr.Shivaji Bhise, recorded in the matter. The doctors have admitted that the operating surgeon did not perform surgery in respect of right fallopian tube. It is also brought on record that right fallopian tube developed adhesions and as such, operating surgeon did not close the said tube. This was disclosed during performance of second operation. It is the case of defendants that after performance of operation, noticing the complications, the patient i.e. plaintiff was advised to approach higher medical centre. The trial Judge has opined that defendant no.2 Medical Officer is responsible for issuing misleading certificate. The certificate was secured by the plaintiff presumably for getting monetary benefits after sterilization operation. The fact remains, however, that there were complications noticed while performing surgery, which were required to be corrected at the time of performance of second operation. It is also brought on record that plaintiff was made aware as regards the future complications after performance of sterilization operation. There was no assurance given to the patient that after sterilization operation, in no eventuality, there is likelihood of conception and a child birth. 12 Shri N.P.Patil Jamlapurkar, learned Counsel appearing for the plaintiff, has placed reliance on a Two-Judge Bench decision of the {7} fa66505.odt Apex Court in the matter of State of Haryana and others Vs. Smt. Santra, reported in AIR 2000 SC 1888, wherein the Apex Court has upheld the decree awarding damages for medical negligence on account of a lady giving birth to unwanted child due to failure of sterilization operation. In the reported matter also, only one fallopian tube was removed and another tube was left untouched. The patient was issued a certificate that her operation was successful and was assured that she would not conceive a child in future. It is, thus, contended that the facts giving rise to the decision in the matter of Smt. Santra (supra) are identical to the facts arising in the instant matter. It is, thus, urged that the decision rendered by the trial Court be confirmed. 13 The case cited is clearly distinguishable and cannot be said to be laying down the law on universal application. The decision in the matter of Smt. Santra was considered in the later judgment of the Apex Court delivered by a Bench comprising of Three-Judges in the matter of State of Punjab Vs. Shiv Ram & others, reported in AIR 2005 SC 3280. The Apex Court opined that merely because a woman having undergone a sterilization operation becomes pregnant and delivers a child, the operating surgeon or his employer or any other employee cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim for compensation 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 {8} fa66505.odt plaintiff was persuaded to undergo surgery. In the instant matter, however, the plaintiff has in clear terms admitted that she was given to understand by the doctor, while she signed consent letter, that she could have a child even after such a family planning operation and in the event of occurrence of pregnancy, she should get it medically terminated. There are endorsements on the case papers in respect of information given to the plaintiff in that regard at Exhibits-43 and 44. Thus, it cannot be said that plaintiff was given an assurance, as in the case of Smt. Santra, that she would not conceive a child in future. It cannot be disputed that rate of failure in tubectomy operations is 0.6%. The trial Court, considering the evidence placed on record by the plaintiff, has given a clear finding that it is not the defendant no.2 who has performed operation, but the negligence attributable to him is in respect of issuing a certificate certifying performance of family planning operation. Plaintiff, thus, has not at all proved negligence on the part of the surgeon in performing tubectomy operation. A reference can be made to paragraphs 26 to 28 of the judgment of the Apex Court in the matter of Shiv Ram, which are quoted as below: “26 The methods of sterilization so far known to medical science which are most popular and prevalent are 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 {9} fa66505.odt 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 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.” 27 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. 28 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 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.” 14 Thus, in the instant matter, plaintiff cannot be said to have proved negligence on the part of the surgeon in performing tubectomy operation nor it has been proved by the plaintiff that there was an understanding or assurance given to her that she would not conceive a {10} fa66505.odt child in future. In spite of operation having been successfully performed and without any negligence, there are chances of a woman becoming pregnant due to natural causes. In these circumstances, it is expected of her to visit the doctor and seek medical advice. 15 In the instant matter, plaintiff has, in clear terms, admitted that she did not visit defendant no.2 nor did she explore the option of terminating the pregnancy medically. In these circumstances, the defendants cannot be held to be negligent in performing the operation and cannot be saddled with decree of damages. The judgment and decree passed by the trial Court is unsustainable and is liable to be quashed and set aside. 16 In the result, appeal is allowed. the judgment and decree dated 04.04.2005, passed by the Joint Civil Judge, Senior Division, Latur in Special Civil Suit No.116 of 2001, is quashed and set aside. In the facts and circumstances of this case, there shall be no order as to costs. R.M.BORDE JUDGE adb/fa66505