IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 27.10.2009 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.1259 of 2007 Kanagavalli .. Appellant/Plaintiff Vs 1.The Secretary to Government, Department of Health, Tamil Nadu Government Services, Fort St. George, Chennai – 9. 2.The Special Secretary and Commissioner to Government of Tamil Nadu, Department of Health, Secretariat, Fort St. George, Chennai – 9. 3.The Director, Family Welfare, D.M.S. Compound, Sengapettai, Chennai – 9. 4.The Joint Director, Medical and rural Health Services, Government Head Quarters Hospital, Erode -1. 5.The District Collector, Erode. .. Respondents/Defendants SECOND APPEAL filed under Section 100 of the Code of Civil Procedure judgment and decree dated 24.10.2005 made in A.S.No.39 of 2005 on the file of Principle District Judge of Erode District at Erode, confirming the Judgment and Decree of the Second Additional Subordinate Judge of Erode dated 03.09.2004 in O.S.No.564 of 2000. For Appellants : Mr.N.Manoharan For Respondent : Mr.R.Muthaian, G.A. https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T The above Second Appeal arises against the judgment and decree in A.S.No.39 of 2005 on the file of Principle District Court , Erode confirming the Judgment and Decree in O.S.No.39 of 2005 on the file of Second Additional Subordinate Court , Erode. 2. The plaintiff in the suit is the appellant in the above second appeal. The respondents are the defendants in the said suit. 3. The plaintiff filed O.S.No.564 of 2000 on the file of Second Additional Subordinate Judge, Erode for claiming compensation a sum of Rs.3,05,250/- together with interest at 12% per annum from the date of the suit till the date of realisation. 4. The brief case of the plaintiff is as follows: - (i) The plaintiff is a wife of one Viswanathan. Out of the said lawful wedlock, she gave birth to two male children. In order to prevent further births to her, the plaintiff underwent Tubectomy operation at Government Headquarters Hospital, Erode under the family planning scheme by the Government of Tamil Nadu. (ii) The plaintiff was explained that there would be absolutely no chance for any further pregnancy if the Tubectomy operation is made. Believing the representation made by the Hospital doctors, the plaintiff was admitted on 20.05.1996 and she underwent the Tubectomy operation on 21.5.1996 at the Government Headquarters Hospital, Erode by the team of Doctors and they declared that the operation was successful and that she would not conceive. (iii) The plaintiff is a house wife. Her husband is a powerloom employee and their family is solely dependent upon the meager income of her husband. She is living below the poverty line. Subsequently in the month of February 1999, she found the symptom of pregnancy and immediately on 2.2.1999, the plaintiff went to Government Hospital Erode for check up. After the necessary test, she was declared that she is pregnant. She was shocked to learn that she was pregnant again even after the Tubectomy operation. (iv) According to the plaintiff, the family planning operation conducted on 21.5.1996 was not a successful one. The plaintiff also charged that on account of negligence and carelessness on the part of the Doctors, the operation was not properly conducted with the result, she became pregnant again and she gave birth to a female child on 2.8.1999. The plaintiff incurred medical expenses of Rs.5250/- and she filed the suit for damages claiming a sum of Rs.3,00,000/- as compensation and Rs.5,250/- towards medical expenses https://hcservices.ecourts.gov.in/hcservices/ and in all, a sum of Rs.3,05,250/- as compensation from the defendants. 5. The brief case of the defendants are as follows: (i) According to the fourth defendant, the plaintiff underwent Tubectomy operation at the Government Headquarters Hospital, Erode as a routine those who require to adopt family welfare methods. The Tubectomy operation conducted on 21.5.1996 to the plaintiff cannot be said as unsuccessful. There was neither negligence nor carelessness on the part of the doctors those who performed Tubectomy operation to the plaintiff. The estimated damage and claim of Rs.3,05,250/- as compensation by the plaintiff is not a true one and she is not entitled to get the exaggerated amount. (ii) According to G.O.Ms.No.415, Health and Family Welfare Department, dated 24.07.1998 read with G.O.Ms.No.1122 Health and Family Welfare Department, dated 22.06.1990, if any failure occurs, an amount of Rs.5,000/- only can be given as compensation to the plaintiff and not more than that. 6. Before the trial court, on the side of the plaintiff two witnesses were examined and 14 documents, Exs. A1 to A14 were marked. On the side of the defendants, D.W.1 was examined and 2 documents Exs. B1 and B2 were marked. 7. The trial court, after taking into consideration the oral and documentary evidences of both the parties, relying on G.O.Ms.Nos.415 and 1122, decreed the suit to the extent of Rs.5,000/-. 8. Aggrieved over the judgment and degree of the trial court, the plaintiff filed an appeal in A.S.NO.39 of 2005 on the file of the Principal District Judge, Erode and the lower appellate court also confirmed the judgment and decree of the trial court. 9. Aggrieved over the judgment and decree of the courts below, the plaintiff has filed the above second appeal. 10. Heard Mr.N.Manoharan, learned counsel appearing for the appellant and Mr.R.Muthaian learned Government Advocate appearing for the respondents. 11. The appellant raised the following substantial questions of law in the above second appeal :- a) Whether the courts below have committed an error in law in fixing the burden of proof on the patient to prove the medical negligence especially when the Doctor who is an expert in that field, treated the patient is expected to https://hcservices.ecourts.gov.in/hcservices/ prove that there was no medical negligence by discharging the burden of proof since the burden is greater on the Doctor than that on the patient? b) Whether the courts below are correct in law in holding that the delivery of the child subsequent to the hysterectomy operation was not in result of the medical negligence of the respondents by saying that there is some possibility of failure rate in surgery, and whether the medical expert can be exonerated from the responsibility of taking care of the health and life of the patients when there is contract for service to exercise professional skill? c) Whether the courts below are correct in law in exonerating the respondents from their liability to pay the compensation for medical negligence when the conduct of the respondents is considered to have gone beyond the bounds of what is expected of the skill for a responsibly competent Doctor in view of the facts and circumstances of the present case?" 12. Learned counsel appearing for the appellant submitted that subsequent to the judgment and decree passed by the Courts below, the Government of Tamil Nadu has passed a Government Order in G.O.Ms.No.183, Health and family Welfare department dated 11.9.2006 wherein, the Insurance scheme provides for a compensation of Rs.20,000/- for failure of sterilization and Rs.20,000/- for medical expenses due to sterilization. 13. Learned counsel appearing for the appellant also relied on a judgment reported in 2006(3) L.W.790 (R.Muthu v. State of Tamil Nadu and others), wherein, it is held as follows: " 6. ... The claim for compensation has been, however, denied by the second respondent solely on the ground that she was operated upon prior to the issuance of the G.O. and therefore, she is not covered by the G.O. In our opinion, it is impossible to sustain the order of the 2nd respondent. It is well settled that a prospective benefit granted under a statutory provision is in certain cases to be measured by or depends on antecedent facts does not make the provision retrospective." Applying the principles laid down in the above referred judgment, it could be seen that the benefit under G.O.Ms.No.183, Health and Family Welfare Department dated 11.9.2006 could be applied for the appellant/plaintiff though she underwent Tubectomy surgery operation in the year 1996. https://hcservices.ecourts.gov.in/hcservices/ 14. Countering the submission made by the learned counsel appearing for the appellant, learned Government Advocate appearing for the respondents submitted that there was no medical negligence on the part of the Doctors, who performed Tubectomy operation and the compensation of Rs.,000/- awarded by the courts below are just and proper. 15. On a careful consideration of the materials available on record and the submissions made by both the learned counsel, it could be seen that the appellant/plaintiff underwent Tubectomy operation on 21.5.1996 at Government Headquarters Hospital, Erode and in spite of the Tubectomy operation, she gave birth to a female child on 2.8.1999 which will prove that the operation performed on 21.5.1996 was not a unsuccessful one. The courts below relying on two Government Orders, G.O.Ms.No.415 dated 24.7.1998 and G.O.Ms.No.1122, dated 22.6.1990 decreed the suit to an extent of Rs.5,000/- only. 16. The learned counsel appearing for the appellant produced a copy of G.O.Ms.No.183, dated 11.9.2006, the Insurance Scheme provides for compensation of Rs.20,000/- for failure of sterilization and Rs.20,000/- for medical expenses due to sterilization. 18. Applying the principles laid down in the judgment reported in 2006 (3) LW.790 (referred supra), it could be seen that the said Government Order can be applied for the appellant/plaintiff also though she was operated on 21.5.1996. The appellant/plaintiff claimed a compensation of Rs.3,05,250/- out of which the appellant claimed Rs.5,250/- towards medical expenses. Though the Government Order provides for Rs.20,000/- towards medical expenses, there is no pleading made by the appellant/plaintiff with regard to the medical expenses incurred by her over and above Rs.5,250/-. Therefore, only a sum of Rs.5,250/- can be awarded to the appellant/plaintiff as compensation for the medical expenses and Rs.20,000/- can be awarded for failure of sterilization. 19. Therefore, I am of the view that the appellant/plaintiff is entitled to a total sum of Rs.25,250/- as compensation for failure of sterilization and for medical expenses. The compensation of Rs.5,000/- awarded by the courts below is enhanced to Rs.25,250/-. The appellant/plaintiff is also entitled to interest as decreed by the courts below as per enhanced compensation of Rs.25,250/-. 20. In these circumstances, the substantial questions of law are decided in favour of the appellant and the judgments and decrees of the courts below are modified as follows: https://hcservices.ecourts.gov.in/hcservices/ The appellant/plaintiff is entitled to get a total compensation of Rs.25,250/- as per G.O.Ms.No.183 dated 11.9.2006. The compensation of Rs.5,000/- decreed by the courts below is enhanced to Rs.25,250/-. The appellant is entitled to interest as decreed by the courts below on the enhanced amount of Rs.25,250/-. 21. The judgments and decrees of the courts below are set aside and the above second appeal is partly allowed. However, there will be no order as to costs. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar rj To 1.The Principle District Judge, Erode. 2.The Second Additional Subordinate Judge, Erode. +1 cc to Mr.N.Manokaran, Advocate, SR.No.57042 1 cc To The Government Pleader, SR.56909 S.A. No.1259 of 2007 MBS {CO} TP/11.11.2009. https://hcservices.ecourts.gov.in/hcservices/