Madhya Pradesh High Court
The State Of Mp. vs Durga Bai on 23 September, 2022
Author: Virender Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIRENDER SINGH
ON THE 23rd OF SEPTEMBER, 2022
FIRST APPEAL No. 413 of 2002
BETWEEN:-
THE STATE OF MP. THROUGH DISTRICT MAGISTATE,
SHAJAPUR DISTRICT SHAJAPUR
2. M.P. HEALTH DEPARTMENT
THROUGH DISTRICT MEDICAL OFFICER,
DISTRICT HOSPITAL, SHAJAPUR
3. DR. SHIVA, KUSHTAROG NIVARAN VIBHAG,
DISTRICT HOSPITAL, SHAJAPUR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI HITENDRA TRIPATHI-G.A. WITH MS. PRANJALI YAJURVEDI-
P.L.)
AND
1. DURGA BAI, W/O BAHADUR SINGH HARIJAN AGED 30
YEARS, OCCUPATION- NIL, R/O GRAM GULANA
PARGANA, DISTRICT SHAJAPUR
2. BAHADUR SINGH S/O PARVAT HARIJAN, AGED 32
YEARS, OCCUPATION-LABOUR, R/O GRAM GULANA
PARGANA, SHAJAPUR (MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for orders this day, the court passed the following:
ORDER
The State has challenged judgment and decree dated 01.07.2002 delivered in Civil
Suit No.5-B/2002 by District Judge, Shajapur (M.P.), whereby the State has been
directed to to pay compensation of Rs.90,000/- with interest @ 9% per annum if the
principal is not paid within two months for the failure of tubectomy operation of
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 9/24/2022 5:30:00
PM
respondent No.1-Durgabai due to alleged negligence of appellant No.3, Dr. Shiva who
operated her.
2. The facts of the case, in brief, are that Durgabai married Bahadur Singh
(Respondents No.1 and 2). They were blessed with a son and a daughter. Considering
their resources and that their family is complete, they decided to adopt family planning
measures and Durgabai underwent tubectomy operation on 13.04.1995 in Primary Health
Centre, Gulana. The operation was performed by Dr. Shiva (appellant no.3) who was
posted at Primary Health Centre at that time but the operation failed. She again conceived
and delivered a daughter on 15.11.1997 against their wish. In their limited financial
resources, they were not in a position to take proper care of their nascent daughter.
Besides, they suffered physical and mental pain, therefore, they asked the State to
provide them financial assistance but, were denied. Finding no other way, they served a
legal notice and filed a suit for damages as indigent persons.
3. The suit was contested by the appellants/defendants on the ground that before
the alleged operation, Durgabail and her husband were apprised about the chances of
failure of the operation. The operation was successful, she was having no complications
at the time of operation. At the time of discharge from the PHC, she was properly
checked up and advised to visit the Doctor after about a month of removal of the
stitches. She was also advised not to cohabit for next six months and in case of missing
of menstrual cycle, to immediately consult the Doctor. She never followed the advice and
conceived due to her own negligence, therefore, the appellants/defendants cannot be held
responsible for the failure of the operation.
4. Further, the suit was contested on the ground that their always remains chances
of failure of sterilization operation. For several natural and man made reasons which are
beyond control of the operating Doctor, the failure percentage may be upto 6 to 8 out of
1000 operations. In case of such failure, the State cannot be held responsible for the
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Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 9/24/2022 5:30:00
PM
damages.
5. The suit was further contested on the ground that even after conceiving a child,
Durgabai and her husband never visited the Doctor, never consulted him and never came
forward for termination of unwarranted pregnancy, even when they were entitled for the
same under section 3 of the Medical Termination of Pregnancy Rules, 1995 which shows
that the plaintiff and her husband were never interested in termination of their pregnancy.
Now they cannot say that they were forced to accept unwarranted child.
6. In turn, the respondents have supported the order passed by the trial court and
prayed for dismissal of the appeal.
7. I have gone through the judgment passed by the trial court.
8. Trial court has framed following issues :-
okn iz'u fu"d"kZ
1- D;k fnukad 13-4-95 dks oknh nqxkZckbZ gka
dk ifjokj fu;kstu dk vkizs'ku mis{kkiw.kZ
fd, tkus ds dkj.k og iqu% xHkZorh gksdj
fnukad 15-11-97 dks mlus ,d iq=h dks
tUe fn;k\
2- D;k oknhx.k {kfriwfrZ jkf'k izkIr djus ds vf/kdkjh gS\ gka] t;i= ds vuqlkj
;fn gka rks fdruh\ :-90][email protected]&
3- lgk;rk ,oa O;;A okn lO;; vkaf'kd
:i ls LohdkjA
9. There is no dispute that respondent No.1 underwent tubectomy operation on
13.4.1995 and even after operation she conceived and delivered a baby which shows that
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Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 9/24/2022 5:30:00
PM
her operation failed. However, the core question here is not of failure of the operation but
is, whether this failure was due to negligence of the doctor which renders respondents
entitled to get compensation. It is settled principle that if the failure was not due to
negligence of the doctor, the affected person is not entitled for compensation.
10. In this regard, we may usefully refer to the decision rendered in the case of
Jacob Mathew Vs. State of Punjab reported in (2005) 6 SCC 1 and State of Punjab
vs Shivram reported in (2005) 7 SCC 1 and the order of this court dated 16th July
2007 passed in the case of Smt. Chamanbai vs State of M.P. reported in (2007) 3
MPHC 541.
11. Amongst these decisions, in Chamanbai's case (supra) this Court considered :
6. Aforesaid paragraph shall not detain this Court any more for the reason that the
question involved herein came up before the Apex Court twice in the case of State of
Haryana and Ors. v. Santra and State of Punjab v. Shiv Ram and Ors. . In the case of
Santra (supra), the plaintiff after undergoing the sterilization operation in a Government
Hospital under the Sterilization Scheme, was issued a certificate of total sterilization
operation and assured that she would not conceive a child in future. Due to the
negligence on the part of the doctor conducting the operation the sterilization was not
complete as only the right fallopian tube was operated upon and the left fallopian tube
was left untouched. As a result the plaintiff conceived and gave birth to a female child in
spite of the operation. The Supreme Court accepted the plaintiff's claim both against the
doctor and Government for damages with the following observations:
19. Family planning is a national programme. It is being implemented through the
agency of various Government hospitals and health centres and at some places
through the agency of the Red Cross. In order that the national programme may
be successfully completed and the purpose sought may bear fruit, everybody
involved in the implementation of the programme has to perform his duty in all
earnestness and dedication. The Government at the Centre as also at the State
level is aware that India is the second most populous country in the world and in
order that it enters into an era of prosperity, progress and complete self-
dependence, it is necessary that the growth of population is arrested. It is with this
end in view that the family planning programme has been launched by the
Government which has not only endeavoured to bring about an awakening about
the utility of family planning among the masses but has also attempted to motivate
people to take recourse to family planning through any of the known devices or
sterilisation operation. The programme is being implemented through its own
agency by adopting various measures, including the popularisation of
contraceptives and operation for sterilizing the male or female. The implementation
of the programme is thus directly in the hands of the Government officers,
including Medical Officers involved in the Family Planning Programmes. The
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Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 9/24/2022 5:30:00
PM
Medical Officers entrusted with the implementation of the Family Planning
Programme cannot, by their negligent acts in not performing the complete
sterilisation operation, sabotage a scheme of national importance. The people of
the country who co-operate by offering themselves voluntarily for sterilisation
reasonably expect that after undergoing the operation they would be able to avoid
further pregnancy and consequent birth of an additional child.
37. Ours is a developing country where the majority of the people live below
the poverty line. On account of the ever increasing population, the country is
almost at the saturation point so far as its resources are concerned. The
principles on the basis of which damages have not been allowed on account of
failed sterilisation operation in other countries either on account public policy
or on account of pleasure in having a child being offset against the claim for
damages cannot be strictly applied to Indian conditions so far as poor families
are concerned. The public policy here professed by the Government is to
control the population and that is why various programmes have been launched
to implement the State-sponsored Family Planning Programmes and policies.
Damages for the birth of an unwanted child may not be of any value for those
who are already living in affluent conditions but those who live below the
poverty line or who belong to the labour class, who earn their livelihood on a
daily basis by taking up the job of an ordinary labour, cannot be denied the
claim for damages on account of medical negligence.
42. Having regard to the above discussion, we are positively of the view that in
a country where the population is increasing by the tick of every second on the
clock and the Government had taken up family planning as an important
programme for the implementation of which it had created mass awakening for
the use of various devices including sterilisation operation, the doctor as also
the State must be held responsible in damages if the sterilisation operation
performed by him is a failure on account of his negligence, which is directly
responsible for another birth in the family, creating additional economic burden
on the person who had chosen to be operated upon for sterilisation.
7. Case of Santra (supra), came up for consideration before the Supreme Court in Shiv Ram's case
(supra). While distinguishing the earlier case, the Apex Court discussed in depth the various techniques
adopted for female sterilisation and observed as follows:
25. 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.
28. The methods of sterilisation so far known to medical science which are most
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Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 9/24/2022 5:30:00
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popular and prevalent are not 100% safe and secure. In spite of the operation having
been successfully performed and without any negligence on the part of the surgeon,
the sterilised woman can become pregnant due to natural causes. Once the woman
misses the menstrual cycle, it is expected of the couple to visit the doctor and seek
medical advice. A reference to the provisions of the Medical Termination of
Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy
by a registered medical practitioner, notwithstanding anything contained in the Penal
Code, 1860 in certain circumstances and within a period of 20 weeks of the length of
pregnancy.
8. On the aforesaid parameters, it may be seen that the petitioner had undergone
sterilisation operation and a certificate to this effect was issued vide Annexure P-2. However,
she was not assured by the operating doctor or by the State Government that she would not
conceive in future. No such document/certificate has been placed on record by the
petitioner. The Medical Termination of Pregnancy Act, 1971 makes a provision for termination
of pregnancy in certain cases. Relevant portion of Section 3 is reproduced below:
3. When pregnancies may be terminated by registered medical practitioners.-
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered
medical practitioner shall not be guilty of any offence under that Code or under any other law
for the time being in force, if any pregnancy is terminated by him in accordance with the
provisions of this Act.
(2) Subject to the provisions of Sub-section (4), a pregnancy may be terminated by a
registered medical practitioner,-
(a) *** *** *** *** ***
(b) *** *** *** *** ***
Explanation 1. *** *** *** *** ***
Explanation 2. Where any pregnancy occurs as a result of failure of any device or method used
by any married woman or her husband for the purpose of limiting the number of children, the
anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to
the mental health of the pregnant woman.
9. Since the pregnancy of the petitioner was on account of failure of sterilisation operation, she
could have got the pregnancy terminated by registered medical practitioner under Explanation
(II). There is no iota on record to establish negligence on the part of the operating doctor. In
these circumstances, the petitioner having not opted for the termination of pregnancy in
accordance with the aforesaid provision, cannot be allowed to claim damages on account of
birth of 5th child.
10. In the result, the petition being devoid of merits is hereby dismissed summarily, however,
without order as to costs.
12. Coming back to the present case, the respondent No.1 only examined herself
before the trial Court to establish her case and in her statement, she had only narrated the
facts that she underwent tubectomy operation which later failed. Not a single word has
been uttered why her operation was failed or that it was failed due to some negligence of
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Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 9/24/2022 5:30:00
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the Doctor.
13. Otherwise also, there is no evidence that at the time of operation, the Doctor
assured or guaranteed that her operation will be 100% successful or there will be no
failure of the operation. Research in the field shows that for several reasons, there
remains chances of failure of one operation out of 55 operations. The reasons may vary
from person to person or case to case. The Doctor cannot be held liable for such a
failure for one or the other natural causes. When there is no evidence of negligence of
operating Doctor, certainly the respondent was not entitled for any compensation.
14. The trial Court has not considered and appreciated the facts and the evidence
in a right perspective. Only on the basis of assumption and presumptions, the suit has
been decreed. Even when there is no evidence with regard to negligence, the Doctor as
well as his employer has been held responsible for the compensation. Such findings of
the learned trial court are certainly erroneous and deserves to be set aside.
15. No other ground has been agitated before this Court. Therefore, this Court is
not inclined to record any finding on other issues.
16. Fact situation of the case in hand is almost identical to the facts in
Chamanbai's case (supra). In this case also, she conceived after more than two and half
years of sterlisation. She never consulted or visited the doctor, never came forward for
termination of her pregnancy. This shows that for the reasons best known to her even
when she was willing to limit his family according to her financial resources, she never
attempted to limit her family knowingly and consciously. Therefore, now she cannot ask
for any damages or compensation for the alleged unwanted child.
17. Therefore, in the considered opinion of this Court, the trial Court has erred in
holding the State and its functionaries liable to pay the compensation to the
respondent/plaintiff and erroneously granted decree in her favour. The same cannot be
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sustained in the eyes of law.
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 9/24/2022 5:30:00
PM
18. For the aforesaid reasons, the judgment and decree dated 01.07.2002
delivered in Civil Suit No.5-B/2002 by District Judge, Shajapur (M.P.) is set aside and the
suit of the respondent/plaintiff stands dismissed.
19. In the result, the appeal stands allowed. A decree be drawn up accordingly.
(VIRENDER SINGH)
JUDGE
MK
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 9/24/2022 5:30:00
PM
