Smt. Madhubala vs Govt. Of Nct Of Delhi And Ors.
2005 Latest Caselaw 602 Del

JUDGMENT

Rekha Sharma, J.

1. The appellant though unlettered and poor seems to be enlightened enough as far as the need to plan her family is concerned. By 1995, she was already a mother to three biological children. That was the time she thought of sterilization. Goaded by this thought, she went to the Respondent hospital and on the 10th day of November of that very year, got herself operated upon for sterilization little knowing that her womb was still not ordained to become barren. On the 16th day of second month of the year 2000, she was informed that she was yet again in her family way. And exactly, six months thereafter, she became a mother again on her delivering a biological male child. She says the doctors were negligent in performing the surgery for, otherwise, how could she conceive again ? Based on that, she filed a suit for recovery of Rs. 4,50,000/- as damages besides interest thereon @ 18% p.a. The suit was against three defendants, the Government of NCT of Delhi, the Union of India and the Chief Medical Officer, Swami Dayanand Hospital, Shahdara, Delhi, where the surgery was performed.

2. The suit was contested only by defendant no.3 (hereinafter referred to as the `Hospital'). The hospital admitted that the appellant had undergone the surgery in question. It also, neither denied the conception nor the birth of the child. It, however, took the plea that no assurance was given that after the surgery she could never conceive. On the other hand, it was alleged that she executed the `Consent Form' admitting therein that she was aware that even after the surgery there were chances of failure and that for such failure, neither the hospital nor the operating surgeon could be held responsible. It was further pleaded that all sterilization procedures had definite failure rate ranging from 1 to 4 pregnancies per thousand women sterilized, and further, that had the appellant informed the hospital about the missed cycle, remedial measures could have been taken.

3. The pleadings of the parties led to the framing of the following issues :-

" Whether the plaintiff is entitled to alleged compensation on the ground of conceiving and delivering a male child even after her Tubectomy ? OPP.

If issue No.1 is decided in the affirmatives, in what amount of compensation, plaintiff is entitled to get and from whom ? OPP

Whether the plaintiff is entitled to any interest and if so, at what rate, on what amount and for which period ?

Relief."

4. The learned Additional District Judge Shri S. N. Aggarwal tried the suit, considered the evidence adduced and the arguments advanced and by his judgment and decree dated 6th December, 2003 found no good ground to award damages. He dismissed the suit. Hence, this petition.

5. During arguments, the learned counsel for the appellant contended that the very fact that the appellant conceived even after having gone through sterilization was sufficient enough to establish negligence on the part of the hospital. He also, in support, sought to lean on the judgment of the Supreme Court in State of Haryana v. Smt. Santra AIR 2000 SC 1888.

6. Negligence may be a question of fact or a mixed question of fact and law depending entirely upon the nature of the duty which the person charged with negligence has failed to comply with or perform in the particular situation of each case. {see Wharton's Law lexicon 14th Edition}. As we know, in the civil law, there are three degrees of negligence : (i) lata Culpa, gross neglect; (ii) levis Culpa, ordinary neglect; and (iii) levissima Culpa, slight neglect. [ Halifax C L 61 ]. The onus of approving negligence rests on the plaintiff. Of course, there may be some cases of res ipsa liquitur, i.e. where the thing resulting from it speaks for itself. The learned Additional District Judge after a critical examination of the material on record has found that negligence is not proved. We tend to agree.

7. It is Dr. (Mrs.) S B Mahanty who had conducted the surgery. She has stated in clear terms that she had educated and advised the appellant not only before but even after the surgery about the possibilities of pregnancy and that in case of irregular mensural cycle, she should report to the hospital. Admittedly, appellant did not so report. She has further stated that there was no negligence, and on this aspect, she finds support from the evidence of another doctor, namely, Dr. Kamla Adarsh (DW 1). It is further in the evidence of Dr. Kamla Adarsh that even where sterilization surgery is performed by best of doctors, the risk of conceivement and post-sterilization delivery remains in 1 to 4 per thousand women undergoing sterilization procedure. The appellant was informed about it as stated by Dr. S. B. Mahanty. Even the "Consent and Application for Sterilization Operation" signed by the appellant makes it clear when it inter alia states :-

"I also know that there are some chances of the failure of the operation for which Government hospital/ operation surgeon will not be held responsible by me or my relatives or any other person whatsoever..........."

there is no evidence that the doctor concerned was negligent in performing her duty or that she flipped, failed or fluttered as, for example, in the case of State of Haryana v. Smt. Santra referred to above, where the operation was not complete in that though the right fellopian tube was operated upon, the left was left untouched. There is no such allegation in the case before us. Moreover, in the said case before the Supreme Court, the doctor appearing as a witness had admitted the negligence in performing the surgery. Mere conception and delivery post-sterilization operation is no indication of negligence, more so, in the teeth of the evidence, that risk of such conceptions and deliveries still remains. What is more, the statement of Dr. S.B. Mahanty does not show that she had not exercised reasonable degree of care. The appellant has thus failed to prove negligence on the part of the hospital or the doctor concerned. And, in view of the evidence noticed above, it is surely not a case of res ipsa liquitur. This is not all. The appellant is asking for damages and yet she was herself negligent enough. She, as already noticed, did not rush to the hospital on missing the mensural cycle though she ought to have. Some remedial measures could still be taken. By her negligence, or call it failure, the opportunity to take such measures was lost.

8. The learned Additional District Judge has highlighted the evidence relevant to the points in issue and has approached the same analytically. The conclusion arrived at by him seems to us to be pre-eminently just.

9. The appeal is consequently dismissed leaving the parties to bear their own costs.