THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
W.A.Nos.1002 and 1062 of 2008
COMMON JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
Regard being had to the controversy involved in the
aforesaid cases, they were heard together and are being
decided by a common order.
The facts of W.A.No.1002 of 2008 are reproduced as
under:-
The appellants before this Court, the State Government
and its functionaries, have filed this writ appeal being
aggrieved by the order dated 29.06.2007 passed by the
learned Single Judge in W.P.No.4781 of 2007, by which the
learned Single Judge has granted compensation to the tune of
Rs.60,000/- to respondent No.1/writ petitioner No.1 and
Rs.40,000/- to respondent No.2/writ petitioner No.2.
The facts of the case reveal that respondent No.1, who was writ petitioner No.1, preferred the writ petition stating that she was working as a Agricultural Labourer, she was blessed with two male children and she has undergone tubectomy operation at Government Hospital, Torrur, on 11.02.2002. It was further stated that she became pregnant and ultimately, gave birth to a child, writ petitioner No.2, on 08.01.2005 and therefore, as there was failure in respect of tubectomy operation, she is entitled for compensation to the tune of Rs.3,00,000/- and her child, writ petitioner No.2, is 2 entitled for compensation to the tune of Rs.5,00,000/-. The learned Single Judge, after placing reliance upon the judgment delivered by the Hon'ble Supreme Court in the case of Status of Punjab vs. Shiv Ram and others1, has held that the Doctor, who performed the operation of sterilization, cannot be held liable to pay compensation and failure of operation is not a rare phenomenon. In spite of the aforesaid, the learned Single Judge has granted compensation to the tune of Rs.1,00,000/-. The judgment of the Hon'ble Supreme Court in the aforesaid case is on record.
In the considered opinion of this Court, in the absence of pleadings to the effect that the Doctors, who performed the operation, were negligent or were responsible for the failure of the operation, the compensation could not have been granted in the peculiar facts and circumstances of the case. Whether there was negligence on the part of the Doctors or not could have been certainly proved in Civil Suit, where the parties would have been at a liberty to adduce the evidence. However, in the present cases, in absence of there being any cogent material that the Doctors were negligent in carrying out the tubectomy operation, the learned Single Judge, only after taking sympathetic view of the matter, has granted compensation. In the considered opinion of this Court, for grant of compensation also, there should be compelling and 1 (2005) 7 SCC 1 3 cogent reasons and it cannot be granted, especially when there is no negligence on the part of the Doctors.
Resultantly, the writ appeals are allowed and the impugned orders passed by the learned Single Judge are quashed.
Pending miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
___________________________ SATISH CHANDRA SHARMA, CJ _______________________ N. TUKARAMJI, J 29.12.2021 JSU