Delhi High Court
Raj Kumari vs The Union Of India & Ors. on 8 September, 2014
Author: Vibhu Bakhru
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 08.09.2014
+ W.P.(C) 5217/2013
RAJ KUMARI ..... Petitioner
versus
THE UNION OF INDIA & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Nandlal Yodha.
For the Respondents : Mr Ajay Digpaul, CGSC for R-1.
CORAM:-
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J (ORAL)
1. The petitioner has filed the present petition, inter alia, praying that
the respondents be directed to pay a sum of `10,00,000/- to the petitioner as
compensation for upbringing the child born to the petitioner after the birth
control operation performed at Sucheta Kriplani Hospital.
2. The petitioner had two issues and was not desirous of bearing more
children. Accordingly, the petitioner had approached respondent no.2
(hereinafter referred to as the 'Hospital') for a Tubectomy operation. The
petitioner was admitted to the hospital on 24.03.2002 and underwent a
tubectomy operation. Apparently, the said operation was not successful and
the petitioner conceived in June-July 2006. As the petitioner decided not to
opt for termination of her pregnancy, the petitioner was blessed with a
female baby on 28.04.2007.
3. I have heard the learned counsel for the parties.
4. Although it is contended that the attending doctors were negligent
and responsible for the failure of the tubectomy operation, there is no
material on record that would establish that the doctors were negligent or
justify this view. The consent form, concededly, signed by the petitioner,
clearly mentions that there is a possibility of failure of the operation and
expressly records that the doctors/surgeons or institution would not be held
responsible for the same. The consent form also provides that the petitioner
would report to the institution or doctor/surgeon, if petitioner's menstrual
period became irregular. Thus, the petitioner was fully aware of the
possibility of the tubectomy operation being unsuccessful.
5. The Supreme Court in the case of Jacob Mathew v. State of
Punjab:(2005) 6 SCC 1 approved the tests as laid down in the case of
Bolam v. Friern Hospital Management Committee: (1957) 2 AII ER 118
(QBD) with respect to medical negligence and laid down the following
principles:-
"(1) Negligence is the breach of a duty caused by omission
to do something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent
and reasonable man would not do. The definition of
negligence as given in Law of Torts, Ratanlal & Dhirajlal
(edited by Justice G.P. Singh), referred to hereinabove, holds
good. Negligence becomes actionable on account of injury
resulting from the act or omission amounting to negligence
attributable to the person sued. The essential components of
negligence are three: 'duty', 'breach' and 'resulting damage'.
(2)... A simple lack of care, an error of judgment or an
accident, is not proof of negligence on the part of a medical
professional. So long as a doctor follows a practice
acceptable to the medical profession of that day, he cannot
be held liable for negligence merely because a better
alternative course or method of treatment was also available
or simply because a more skilled doctor would not have
chosen to follow or resort to that practice or procedure which
the accused followed. When it comes to the failure of taking
precautions what has to be seen is whether those precautions
were taken which the ordinary experience of men has found
to be sufficient; a failure to use special or extraordinary
precautions which might have prevented the particular
happening cannot be the standard for judging the alleged
negligence. ...
(3) A professional may be held liable for negligence on one
of the two findings: either he was not possessed of the
requisite skill which he professed to have possessed, or, he
did not exercise, with reasonable competence in the given
case, the skill which he did possess. The standard to be
applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent
person exercising ordinary skill in that profession. It is not
possible for every professional to possess the highest level of
expertise or skills in that branch which he practices. A highly
skilled professional may be possessed of better qualities, but
that cannot be made the basis or the yardstick for judging the
performance of the professional proceeded against on
indictment of negligence."
6. In State of Punjab v. Shiv Ram and others: (2005) 7 SCC 1, the
Supreme Court following the decision in Jacob Mathew (supra) held as
under:-
"We are, therefore, clearly of the opinion that merely
because a woman having undergone a sterilisation 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. The claim 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 plaintiff was persuaded to undergo surgery. As noted in
various decisions which we have referred to hereinabove,
ordinarily a surgeon does not offer such guarantee."
7. It is now well settled that a failure of sterilization operation would
not necessarily lead to the conclusion that the doctors performing the
procedure were negligent and, consequently, entitle the petitioner for
compensation. However, as pointed out by the learned counsel for the
respondents, the respondents have a scheme whereby `25,000/-
compensation would be payable in case of failure of the sterilization
procedure. The respondent had also offered the said sum to the petitioner,
earlier. The learned counsel for respondents, on instructions, states that
even though the said scheme has elapsed, respondents would pay the said
compensation to the petitioner. In the circumstances, it is directed that the
respondents pay a sum of `25,000/- to the petitioner within two weeks from
today.
8. The writ petition is disposed of with the aforesaid directions. The
parties are left to bear their own costs.
VIBHU BAKHRU, J
SEPTEMBER 08, 2014/RK
