Madras High Court
Vasuki vs The Secretary To Government on 28 April, 2023
WP(MD)No.4505 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.4505 of 2016
and
WMP(MD)No.4085 of 2016
Vasuki : Petitioner
Vs.
1.The Secretary to Government,
Health Department,
Government of Tamil Nadu,
Fort St.George, Chennai – 600 009.
2.The Joint Director of Health Services,
DMS Office Campus,
Teynampettai,
Chennai – 600 018.
3.The Joint Director of Medical Services,
DMS Office Campus,
Teynampettai, Chennai – 600 018.
4.The District Collector,
Tuticorin District,
Tuticorin.
5.The Dean,
Tuticorin Government Medical College Hospital,
Palayamkottai Road, Tuticorin.
1/16
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WP(MD)No.4505 of 2016
6.Dr.D.Shobana : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Mandamus directing the respondents pay
Rs.25,00,000/- (Rupees Twenty Five Lakh only) towards compensation to the
petitioner for the medical negligence caused to the petitioner resulting in life time
financial constrains caused to the petitioner to bring up her third child.
For Petitioner : Mr.S.Srinivasa Raghavan
For Respondents : Mr.T.Vilavankothai
Additional Government Pleader
for R.1 to R.5
*****
ORDER
The petitioner before this Court is a house wife and her husband is an
Agricultural cooli. The petitioner gave birth to two children and after her second
delivery on 19.07.2013 in the fifth respondent Hospital, the petitioner underwent
Purperal Sterilization by Tubuctomy on 23.07.2013, in order to avoid further
pregnancy. The surgery was performed by the sixth respondent and the petitioner
was discharged from the Hospital on 29.07.2013. However, the petitioner was
conceived again in the month of March, 2014 and gave birth to a third child on
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WP(MD)No.4505 of 2016
06.01.2015. Thereafter, the petitioner again underwent the same procedure to
prevent future pregnancy. With a grievance that the petitioner underwent another
surgery and has to rear up another child due to the medical negligence of the
respondents 5 & 6, she has made representations to the respondents seeking
compensation. Since there was no proper response, she has moved the instant writ
petition for a mandamus directing the respondents to grant compensation for the
negligence in performing the Family Planning Operation.
2.Learned Counsel appearing for the petitioner submitted that the petitioner
was already having two children. During her second delivery at the fifth
respondent Hospital, she was given assurance that Puerperal Sterilization by
Tubuctomy is a fool-proof methodology to avoid fresh pregnancy. Believing the
version of the Doctors that there is no chance of fresh conception after the
successful surgery performed by the sixth respondent in the fifth respondent
Hospital, the petitioner and her husband entered into matrimonial obligations.
However, shockingly, the petitioner got conceived again and immediately, the
petitioner and her husband reported to the respondents 5 & 6. They have directed
the petitioner to abort the child, but the petitioner refused to abort the child in the
womb, since it is a sin. The petitioner delivered the third child on 03.01.2015, due
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WP(MD)No.4505 of 2016
to the medical negligence of the respondents 5 & 6 and she had undergone another
surgery by same methodology. Thereafter, she had not conceived once again,
which proves that the first surgery was unsuccessful. Therefore, the respondents
are vicariously and jointly liable for the lapses committed and prayed for
compensation.
3.Learned Additional Government Pleader appearing for the respondents, by
referring to the counter affidavit filed by the fifth respondent, submitted that the
petitioner was explained about the Family Planning Operation, its pros and cons,
success rate and post-operative complications, etc. Only after getting the consent
from the petitioner and her family members, the petitioner was conducted with the
sterilization operation. The petitioner also gave an undertaking before the
operation to the effect that she knows about the operation and that the Doctors and
the Hospital authorities are not responsible and that she would inform the Hospital
authorities within two weeks if she does not get her menstruation after undergoing
the operation and she agrees to abort the fetus and that she will not claim any
compensation. Having agreed to the terms, the petitioner is estopped from making
any claim for compensation.
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WP(MD)No.4505 of 2016
4.He further submitted that 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 not known as to whether the petitioner has strictly followed
the prescriptions and advice given by the Hospital authorities. In any event, as per
the Scheme, the petitioner can claim only a sum of Rs.30,000/- and therefore, he
prayed for dismissal.
5.This Court paid it's anxious consideration to the rival submissions and
also perused the available materials.
6.The Hon'ble Supreme Court, in State of Haryana and Others v. Santra
[2000 (3) SCC 520], has observed as follows:-
“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 gave birth to a female child in spite of sterilization
operation which, obviously, had failed.”
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WP(MD)No.4505 of 2016
7.This observation made by the Hon'ble Supreme Court squarely applies to
the case on hand. The facts of the case are not in dispute. The petitioner underwent
Puerperal Sterilization by Tubuctomy on 23.07.2013 after her second delivery. The
surgery was performed by the sixth respondent Doctor in the fifth respondent
Hospital. The discharge summary issued by the Hospital and the information
obtained by the petitioner under Right to Information Act prove the same.
8.The petitioner's contention is that they were already blessed with two
children and the birth of new child put her and her husband to a burden of rearing
up the child and also to bear all expenses including maintenance of the child, food,
clothes, education and marriage. Therefore, she underwent the sterilization
operation and she was made to believe that after the operation, she would not
conceive again. But, things went sideways and she got conceived and ultimately,
gave birth to a third child, despite the operation. Therefore, 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.
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9.In fact, after the third delivery, the petitioner underwent the very same
procedure for the second time and after the same, she was not conceived.
Therefore, the act of the Doctor, who performed the sterilization operation on the
petitioner for the first time, can be held that the Doctor did not perform the duty to
the best of her ability and with due care and caution and due to the said fact, the
petitioner was made to suffer mental pain and agony and burden of financial
liability.
10.Similar such case came up for consideration before this Court in the
Principal Seat in Dhanam v. Secretary to Government, Health & Family Welfare
Department, Chennai and Others [CDJ 2022 MHC 7836], wherein, this Court
has held that the petitioner is entitled to the compensation appropriately in respect
of her third child, who miserably became her 'unwanted child'.
11.Learned Additional Government Pleader, by referring the Government
Order in G.O.Ms.No.150, Health & Family Welfare Department, dated
28.05.2014, submitted that as per the scheme, the petitioner is entitled to a
compensation of Rs.30,000/-. He further submitted that there was no element of
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WP(MD)No.4505 of 2016
tort involved nor had the petitioner suffered any loss, which could be compensated
in terms of money.
12.This contention of the respondents was also addressed by this Court in
Dhanam's case (supra) and was answered as follows:-
“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 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
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WP(MD)No.4505 of 2016
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 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.
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WP(MD)No.4505 of 2016
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 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 "unwanted child" and it becomes the
obligation of the State.”
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WP(MD)No.4505 of 2016
13.Therefore, this Court is not inclined to accede the submission made by
the learned Additional Government Pleader. Family Planning is a National
Programme being implemented through various Government Hospitals and Health
Centres. The implementation of the programme is directly in the hands of the
Government, including the Medical Officers. 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 co-operate by offering
themselves voluntarily for sterilization 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, things went sideways due to improper
performance of the Doctor in conducting the sterilization operation on the
petitioner, by which, she gave birth to the third child.
14.In Santra's case (supra), the Hon'ble Supreme Court has held that there
was negligence on the part of the Doctors and ultimately, the State Government
was responsible for the negligence. The Hon'ble Supreme Court has ultimately
upheld the compensation ordered by the Court below, by observing as follows:-
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WP(MD)No.4505 of 2016
"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
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WP(MD)No.4505 of 2016
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
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."
15.By referring this decision, this Court, in Dhanam's case (supra), has
ordered for compensation as follows:-
“19. 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 or private school. She would be provided
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WP(MD)No.4505 of 2016
with free education, i.e., no fee would be charged and all the school fee
and other fees paid, shall be refunded by the respondents; all her
expenses on books, stationary, uniforms and other miscellaneous
educational expenses, would also be met by the respondents. Further,
the respondents shall pay Rs. 1.2 lakhs per year to meet her needs for
food and proper up-bringing till she completes her graduation or
attaining 21 years, whichever is earlier, calculated @ Rs.10,000/- per
month, amount under this head would be approximately Rs.1.2 lakhs.
Further, the benefits granted by the Government under the female child
scheme shall also be extended to the petitioner.”
16.Following the same and considering the economic and social
background of the petitioner and other circumstances, this Court is passing the
following order:-
The petitioner is entitled for a compensation of Rs.3,00,000/-. The
respondents shall provide free education to the third child of the
petitioner, either in a Government School or in a Private School. The
fees already paid, if any, shall be refunded and all the expenses on
books, stationary, uniforms and other miscellaneous educational
expenses shall also be met by the respondents. Further, the respondents
shall pay a sum of Rs.1,20,000/- per year [Rs.10,000/- per month] to
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WP(MD)No.4505 of 2016
meet the child's need for food and proper up-bringing till he completes
his graduation or attaining 21 years, whichever is earlier.
With the above directions, this writ petition stands disposed of. No costs.
Consequently, connected miscellaneous petition stands closed.
Internet : Yes 28.04.2023
Index : Yes / No
NCC : Yes / No
gk
To
1.The Secretary to Government,
Health Department,
Government of Tamil Nadu,
Fort St.George, Chennai – 600 009.
2.The Joint Director of Health Services,
DMS Office Campus,
Teynampettai,
Chennai – 600 018.
3.The Joint Director of Medical Services,
DMS Office Campus,
Teynampettai, Chennai – 600 018.
4.The District Collector,
Tuticorin District,
Tuticorin.
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WP(MD)No.4505 of 2016
B.PUGALENDHI, J.
gk
5.The Dean,
Tuticorin Government Medical College Hospital,
Palayamkottai Road, Tuticorin.
WP(MD)No.4505 of 2016
28.04.2023
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