Madras High Court

Tmt. Dhanam vs The Secretary To Government on 25 January, 2022

                                                                           W.P.No.22349 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                           DATED: 25.01.2022

                                                     CORAM

                           THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY

                                               W.P.No.22349 of 2018

                     Tmt. Dhanam                                           ...Petitioner
                                                            ..Vs..

                     1.The Secretary to Government,
                       Health & Family Welfare Department,
                       For St.George,
                       Chennai – 600 009.

                     2.The Director of Medical Education,
                         and Family Welfare Department,
                       Kilpauk, Chennai.

                     3.The Registered Medical Officer,
                       Kanyakumari Government Medical College Hospital,
                       Asaripallam, Nagercoil,
                       Kanyakumari District.

                     4.The Deputy Director,
                       Medical Rural Development and Family Welfare Centre,
                       Kanyakumari at Nagercoil.                       ...Respondents

                     PRAYER : Petition filed under Article 226 of the Constitution of India
                     praying to issue a Writ of Mandamus, to direct the respondents 1 and 2 to
                     grant compensation to the petitioner for the negligence in performing the

                     1/20


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                                                                                    W.P.No.22349 of 2018

                     Family Planning Operation by the 3rd respondent within a time stipulated by
                     this Court.
                                        For Petitioner            : Mr.S.P.Sukalaiyandi

                                        For Respondents        : Mr.K.M.D.Muhilan
                                                                 Government Advocate
                                                             ORDER

This Writ Petition has been filed, praying to issue a Writ of Mandamus,

to direct the respondents 1 and 2 to grant compensation to the petitioner for

the negligence in performing the Family Planning Operation by the 3rd

respondent within a time stipulated by this Court.

2. According to the petitioner, she was residing at Tamil Nagar,

Aralvaimozhi Post, Kanyakumari District and she was already blessed with

two female children. While giving birth to second child, the petitioner had

undergone Tubectomy operation under the supervision of 3rd respondent,

who also issued Sterlisation Certificate to the petitioner. On 5.4.2017, the

3rd respondent examined the petitioner and found that she was conceived

since the Tubectomy operation got failed and the 3rd respondent also

endorsed the same in the patient case sheet of the petitioner. Hence, on

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18.07.2017, the petitioner sent a detailed representation to the respondent,

seeking compensation of Rs.10,00,000/- and pursuant to her representation,

she also appeared for enquiry on 30.08.2017 before the 3rd respondent and in

the meanwhile, she gave birth to a girl baby on 29.09.2017. The grievance of

the petitioner is that since she begotten three children, she lost the benefit

under Government Scheme provided for female children and thereby, the

daughters of the petitioner were deprived of the benefits and they are put to

financial hardship since the petitioner and her husband are not in a position to

bear the expenses towards maintenance, education and marriage of the

children. Despite the representation since no response was forthcoming, the

petitioner has come forward with the present Writ Petition, seeking

compensation for the negligence on the part of the 3rd respondent.

3. A counter affidavit has been filed on behalf of the 4th respondent,

wherein, while denying the averments made in the writ petition, it is stated

that the petitioner was explained about the family planning operation and its

pros and cons, viz., about chances of failure and post operative

complications, etc. and after getting the consent from the petitioner as well as

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her family members, the petitioner was conducted LSCS with Sterilization

operation. The petitioner also gave undertaking before undergoing the family

planning operation to the effect that she knows about the family planning

operation which may fail some time for which, the doctors and hospital

authorities are not responsible and there is danger to her health to some extent

if she undergoes family planning operation and that she would inform to the

hospital authorities within two weeks if she does not get her menstruation

after undergoing the operation and she agrees to abort the fetus at free of cost

in the hospital, and that she receives the compensation as per the Scheme in

case of failure of operation etc. Therefore, having agreed to the terms, the

petitioner is estopped from making any claim for compensation towards

negligence on the part of the 3rd respondent, which cannot be sustained.

Further, the petitioner did not obey the doctor's advise to inform the hospital

authorities within two weeks if she does not get her menstruation and it is

note know whether the petitoiner has strictly followed the prescriptions and

advice given by the hospital authorities. The petitioner has not approached

the hospital authorities within 90 days from the date of knowledge of failure

of family planning operation. However, as per the Scheme, the petitioner can

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claim only for a sum of Rs.30,000/- only. It is also stated that by knowing full

well about the risk involved in the family planning operation, the petitioner

had given consent to under the operation and therefore, she cannot make any

accusation against the authorities. With these averments, the 4th respondent

sought for dismissal of the Writ Petition as devoid of merits.

4. Heard the learned counsel for the petitioner and the learned

Government Advocate appearing for the respondents and perused the entire

materials available on record.

5. The observation made by the Hon'ble Supreme Court in the case of

"State of Haryana and others versus Smt. Santra" reported in 2000 (3)

Supreme 520 will squarely apply to the fact-situation prevailing in the present

Writ Petition as well, which reads as under:

"Medical Negligence plays its game in strange ways.

Sometimes it plays with life; sometimes it gifts an "Unwanted Child" as in the instant case where the respondent a poor labourer woman, who already had many children and had opted for sterilization, developed pregnancy and ultimately

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gave birth to a female child in spite of sterilization operation which, obviously, had failed."

6. The learned counsel appearing for the petitioner would submit that

the sterilization operation was performed on the petitioner on 05.04.2014 and

a certificate to that effect was also issued to her under the signatures of the

Medical Officer, Kanyakumari Government Medical College Hospital,

Asaripallam, Nagercoil. He pointed out that the petitioner was assured that

sterilization operation had been performed successfully upon her and she

would not conceive a child in future. But despite the operation, she

conceived. The petitioner came to know this when she approached the 3rd

respondent on 05.04.2017 for general check up since she was suffering from

Thyroid problem and after examining her, the 3rd respondent informed the

petitioner that she is pregnant since her sterilization operation was not

successful and he also made an endorsement to that effect on the petitioner's

case sheet. Later, on 29.09.2017, the petitioner gave birth to a female child.

The learned counsel would also submit that the petitioner was already blessed

with two female children and the birth of new female child put her and her

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husband to a burden of rearing up the child as also to bear all the expenses

involved in the maintenance of the child, including the expenses towards her

food, clothes, education and marriage. Further, since she was blessed with

three children, the benefits under the Government Scheme for female children

would also be deprived of. It was in these circumstances, the learned counsel

submitted that the petitioner made a representation, claiming compensation of

Rs.10,00,000/- to the respondents and since the same evoked no response

from the respondents, the petitioner approached this Court and hence, he

prayed that this Court to grant appropriate compensation to the petitioner.

7. The claim of the petitioner was resisted by the respondents by taking

up technical pleas relating to non-maintainability of the writ petition on

various grounds, stating that there was no negligence on the part of the

Medical Officer of the Kanyakumari Government Medical College Hospital,

Asaripallam, Nagercoil. The learned Government Advocate contended that

the sterilization performed upon the petitioner was done carefully and

successfully and there was no negligence on the part of the Doctor who

performed that operation. He also submitted that before undergoing the

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sterilization operation, the petitioner was explained about pros and cons of

the operation and having understood the same, the petitioner has given an

undertaking that in case the operation was not successful, she would not

claim any damages. Therefore, the learned Government Advocate would

point out that the petitioner was estopped from raising the plea of negligence

or from claiming damages for an unsuccessful sterilization operation from the

State, which was not liable even vicariously for any lapse on the part of the

Doctor who performed the operation. The learned Government Advocate

would also submit that in similar Writ Petitions, this Court has not entertained

the similar claim as sought for in the present writ petition and held that the

extent of negligence and quantum of compensation cannot be decided in the

Writ Petition. Therefore, the learned Government Advocate prays this Court

to dismiss the Writ Petition.

8. Having heard the learned counsel for the petitioner and the learned

Government Advocate for the respondents, I find considerable force in the

contention raised by the learned counsel for the petitioner. It is not in dispute

that despite sterilization operation, the petitioner got conceived and gave birth

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to a female child. It cannot be brushed aside that without there being any

negligence or carelessness on the part of the doctor who performed the

sterilization operation on the petitioner, she gave birth naturally. In fact, the

3rd respondent has endorsed on 05.04.2017 after examining the petitioner

who visited the hospital for check up as suffering from Thyroid, that the

petitioner was pregnant and the sterilization operation was not successful. It

is pertinent to note that at the time of undergoing Tubectomy operation, the

petitioner was made to believe that after the operation, she would not

conceive. Therefore, the act of the medical officer, who conducted

sterilization operation, can be held that he did not perform his duty to the best

of his ability and with due care and caution and due to the above said act, the

petitioner was made to suffer mental pain and agony and burden of financial

liability. In such circumstances, this Court is of the view that the petitioner is

entitled to the compensation appropriately in respect of her 3rd child, who is

miserably became her 'unwanted child'.

9. However, the learned Government Advocate would submit that the

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negligence of the Medical Officer in performing the unsuccessful sterilization

operation upon the petitioner would not bind the State Government and the

State Government is not liable vicariously for any damages to the petitioner.

He also contended that in the matter of unsuccessful operation, the

Government already brought a scheme by issuance of G.O.Ms.No.150 Health

& Family Welfare (R2) Department dated 28.05.2014 and as per the said

scheme, the petitioner is entitled to 30,000/-. He pointed out that there was no

element of "tort" involved in it nor had the petitioner suffered any loss which

could be compensated in terms of money.

10. Negligence is a `tort'. Every Doctor who enters into the medical

profession has a duty to act with a reasonable degree of care and skill. This is

what is known as `implied undertaking' by a member of the medical

profession that he would use a fair, reasonable and competent degree of skill.

Under the English Law as laid down in "Bolam v. Friern Hospital

Management Committee" (1957) 2 All ER 118, a doctor, who acts in

accordance with a practice accepted as proper by a responsible body of

medical men, is not negligent merely because there is a body of opinion that

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takes a contrary view.

11. In two decisions rendered by the Hon'be Supreme Court, viz., "Dr.

Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr. AIR

1969 SC 128 and A.S. Mittal vs. State of U.P. AIR 1989 SC 1570, it was

laid down that when a Doctor is consulted by a patient, the former, namely,

the Doctor owes to his patient certain duties which are (a) a duty of care in

deciding whether to undertake the case; (b) a duty of care in deciding what

treatment to give; and (c) a duty of care in the administration of that

treatment. A breach of any of the above duties may give a cause of action for

negligence and the patient may on that basis recover damages from his

Doctor.

12. The word 'duty' connotes the relationship between one party and

another, imposing on the one an obligation for the benefit of that other to take

reasonable care in the first instance. Viewed from this angle, when the

petitioner approached the 3rd respondent for sterilization, it was with clear

objective not to bear any more children. It was therefore, the duty of the

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respondents to ensure that operation is successful. In fact, the duty of the

medical practitioner arises from the fact that he does something to human

being which is likely to cause physical damage unless it is done with proper

care and skill.

13. In the instant case, the petitioner was not suffering from any

disease for treatment of which she had gone to hospital authorities. She is a

normal healthy person. She had approached the hospital authorities as she

wanted to prevent birth of unwanted child. There was no question of error of

judgment in performing the operation properly, it could have been simply a

case of success. If in spite of this operation, she conceived and has given

birth to a child, which establishes that it is clear case of something amiss

while performing an operation and one can hopefully deduce that standard of

reasonable care expected of the doctor was not taken.

14. It may be mentioned at the cost of repetition that in the counter

affidavit the respondents have not at all stated that instead of taking

reasonable care in performing sterilization operation and in spite operation

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being successful, there could be a conception. The respondents blamed the

petitioner only to the extent she did not approach the hospital immediately

after the stoppage of her menstrual periods so that the same could have been

rectified. Therefore, the failure of the sterilization operation was not seriously

disputed by the respondents and for such failure, the petitioner was even

offered Rs.30,000/- as per the Scheme. This Court fails to understand as to

how the negligence on the part of the Medical Officer who performed the

sterilization operation on the petitioner, could be made good by just awarding

Rs.30,000/- irrespective of the status of the petitioner who does not wish to

have child any more because the petitioner was already blessed with two

female children and due to her poor financial ability and her incapacity to

maintain the third child all along.

15. In such circumstances, the 3rd child is considered as “unwanted

child” which had virtually taken birth only due to negligence on the part of

the 3rd respondent in performing sterilization operation on the petitioner.

Therefore, once the child was declared as unwanted child to the family of the

petitioner, now the State has to bear the expenses in bringing up the

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"unwanted child" and it becomes the obligation of the State. Family Planning

is a National Programme. It is being implemented through the agency of

various Govt. Hospitals and Health Centres. The implementation of the

Programme is thus directly in the hands of the Govt. officers, including

Medical Officers involved in the family planning programmes. The Medical

Officers entrusted with the implementation of the Family Planning Programme

cannot, by their negligent acts in not performing the complete sterilization

operation, sabotage the scheme of national importance. The people of the

country who cooperate 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 additional child. As such, the

petitioner also offered herself voluntarily for sterilization operation, however,

the fate turns against her due to improper performance of the 3rd respondent

in conducting the sterilization operation on the petitioner, by which, she gave

birth to unwanted child. Therefore, this Court is of the view that the

petitioner is certainly entitled to the compensation. However, taking into

consideration the poor financial status of the petitioner who was already

burdened with two female children and also lost the benefits under the

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scheme of the Government in respect of family consisting two female

children, this Court feels it appropriate to award compensation including

future cost of the child's upbringing upto the age of 18 years, on a

consideration of public policy.

15. When the petitioner did not want third child as she and her husband

had no economic means to bring up another child as already having two

female child and when the third child was born because of failure of

sterilization operation conducted on the petitioner by the respondents, who

are the instrumentalities of the State, it becomes bounden duty of the state to

meet the expenses for bringing up this child.

16. In a decision reported in the case of “State of Haryana versus

Santra” ((2000) 5 SCC 182=2001-2-LW 58), while dealing with a case of

birth of a child in spite of tubectomy operation. The Supreme Court held that

there was negligence on the part of the Doctors and ultimately, the State

Government was responsible for the negligence. The award of compensation

by the Court below was upheld by the Supreme Court. Ultimately, it was

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observed:-

"34. From the above, it would be seen that the Courts in the different countries are not unanimous in allowing the claim for damages for rearing the unwanted child born out of a failed sterilisation operation. In some cases, the Courts refused to allow this claim on the ground of public policy, while in many others, the claim was offset against the benefits derived from having a child and the pleasure in rearing that child. In many other cases, if the sterilisation was undergone on account of social and economic reasons, particularly in a situation where the claimant had already had many children, the Court allowed the claim for rearing the 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 of 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

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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 has 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."

16. In view of the above discussion, this Court of the view that the

petitioner is entitled to the compensation and keeping in view the economic

and social background of the petitioner and other relevant circumstances,

ends of justice would be met in providing the compensation of Rs. 3,00,000/-.

In addition to this, on attaining the age of five years, the respondents are

directed to admit the 3rd child of the petitioner in a Government school. She

would be provided free education, i.e., no fee would be charged; all her

expenses on books, stationary, uniforms and other miscellaneous educational

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expenses, would be met by the respondent. Further, the respondents shall pay

Rs. 1.5 lakhs to meet her needs for food and proper up-bringing till she

attains majority. Calculated @ Rs.1000/- per month, amount under this head