Delhi High Court
Govt. Of Nct Of Delhi & Ors vs Shobha on 11 October, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 11th October, 2012
+ LPA No. 240/2004
% GOVT. OF NCT OF DELHI & ORS ....Appellants
Through: Mr. V.K. Tandon, Adv.
Versus
SHOBHA ..... Respondent
Through: None.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. This intra court appeal impugns the judgment dated 25 th April, 2003
of the learned Single Judge of this Court allowing CWP No. 7715/2001
preferred by the respondent by directing the appellants to pay total
compensation of Rs.3,25,000/- to the respondent for a failed tubectomy
operation.
2. Notice of the appeal was issued and the appeal admitted for hearing
on 1st November, 2006. Though the appeal was accompanied with an
application for stay of operation of the impugned judgment but no stay was
granted. Subsequently on 5 th March, 2010, the counsel for the appellants
stated that the amount of compensation will be deposited in the Registry and
pursuant thereto a sum of Rs.3,30,000/- was deposited and on 15 th March,
2010 directed to be kept in a fixed deposit. The appeal was dismissed for
non appearance of either parties on 10th November, 2009; an application for
restoration was filed which was allowed on 21st May, 2010 in the presence
of the counsel for the respondent. Today when the matter is called, none
appears for the respondent. Considering that the appeal is of the year 2004,
it is not deemed expedient to await the respondent any further and the
counsel for the appellants has been heard.
3. The counsel for the appellants has contended that the matter is no
longer res integra. Reliance in this regard is placed on State of Punjab Vs.
Shiv Ram (2005) 7 SCC 1 where a three Judges Bench of the Supreme
Court held that merely because a woman having undergone 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. It was further held that the claim in
tort can be sustained only if there is negligence on the part of the surgeon in
performing the surgery and the proof of negligence has to satisfy Bolam's
test. It was yet further held that no liability on this account can be fastened
unless it is pleaded and proved that assured 100% exclusion of pregnancy
after surgery, was the basis for undergoing surgery. The Supreme Court
also noticed that the methods of sterilization so far known to medical
science which are most popular and prevalent, are not 100% safe and secure
and once the woman misses the menstrual cycle, it is expected of the couple
to visit the doctor and seek medical advice. The said judgment, the counsel
for the appellants contends, was also followed in State of Haryana Vs. Raj
Rani (2005) 7 SCC 22.
4. The counsel for the appellants has also taken us through the record
including the consent form signed by the respondent and her husband in
vernacular before undergoing the surgery and in which they had admitted
having been informed of the probability of failure of the operation and had
further undertaken not to blame the hospital/operating surgeon in any
circumstance.
5. It is also contended on the basis of records that the respondent inspite
of missing the menstrual cycle did not approach the hospital in time as had
been advised and approached much later, by when termination of pregnancy
was not feasible. It is yet further contended that all these are disputed
questions of fact which in any case could not have been adjudicated in writ
jurisdiction.
6. The counsel for the appellants however fairly states that
notwithstanding the law aforesaid having been laid down by the Supreme
Court, the Supreme Court had nevertheless allowed the respondents in those
cases to retain the compensation of Rs.50,000/- awarded to them in those
cases and which had already been paid to them.
7. In the light of the judgments aforesaid of the Supreme Court, we are
satisfied that the judgment of the learned Single Judge which of course is of
a date prior to the judgments (supra) of the Supreme Court, cannot be
sustained.
8. We accordingly allow this appeal and in equity, since the Supreme
Court had also not interfered with the compensation of Rs.50,000/-, modify
the judgment of the learned Single Judge by reducing the compensation
awarded to the respondent from Rs.3,25,000/- to Rs.50,000/- The
respondent shall also be entitled to the entire interest accrued till date on the
sum of Rs.3,30,000/- deposited by the appellant in this Court. We
accordingly direct the Registry to, after deducting the sum of Rs.50,000/-
and the interest accrued on the FDR for Rs.3,30,000/- deposited by the
appellants, refund the balance amount to the appellants. The said sum of
Rs.50,000/- and interest be further kept in interest bearing fixed deposit till
claimed by the respondent.
No costs.
RAJIV SAHAI ENDLAW, J
CHIEF JUSTICE
OCTOBER 11, 2012.
M
