Madras High Court

Santhi vs The District Medical Officer on 31 March, 2023

S.A.No. 1285 of 2008

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 31.03.2023

CORAM

THE HONOURABLE MR. JUSTICE V. LAKSHMINARAYANAN

S.A.No. 1285 of 2008

Santhi ... Plaintiff/Respondent/Appellant

Vs.

1. The District Medical Officer
Government General Hospital
Thiruvannamalai Town.

2. The District Family Welfare Officer
District Head Quarters
Government General Hospital
Thiruvannamalai District.

3. The Director, State Welfare
Department, having its office at
Egmore, Chennai.

4. The Collector
Thiruvannamalai District
Thiruvannamalai.

5. Dr.S.Vasantha,
Assistant Surgeon
Working at Government
Hospital, Thiruvannamalai.

6. Dr.S.Sundari,

https://www.mhc.tn.gov.in/judis 1
S.A.No. 1285 of 2008

Assistant Surgeon
Working at Govt. General Hospital
Thiruvannamalai District
... Defendants/Appellants/Respondents

PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Decree and Judgment passed in A.S.No. 83 of
2006 on the file of Principal Subordinate Judge at Thiruvannamalai dated
17.12.2007, reversing the Decree and Judgment passed in O.S.No. 205 of
2004 dated 21.02.2005, on the file of Principal District Munsiff at
Thiruvannamalai.

For Appellant : M/s. R.T.Sundari

For Respondents : Mr. B.Thamil Nidhi
Additional Government Pleader

JUDGMENT

The plaintiff in O.S.No. 359 of 2000 on the file of the Subordinte Judge,

Tiruvanamalai, is the appellant before this Court.

2. The plaintiff submits that she is an agricultural coolie and has two

daughters to be maintained in additional to her husband. She hails from a

poor family and has to eke out a living only by resorting to coolie work.

S.A.No. 1285 of 2008

The plaintiff submits that after the birth of the second female child, she

underwent Laproscopic operation at Tiruvannamalai Government Hospital

under the control of the District Medical Officer, Tiruvannamalai, who is

the first defendant. She was admitted and operated upon on 15th August

1991. After a brief period of treatment, she was discharged from the

hospital. Sometime in September 1991, she suffered from severe

abdominal pain and therefore, she was admitted to the hospital and

discharged again. In December 1991, her husband took her to one,

Dr.Saiprasanna and the Doctor informed, to the shock and surprise of the

plaintiff that she was pregnant. According to the plaintiff, she became

pregnant only on account of the fact that Laproscopic operation had not

been conducted in a proper manner and therefore, came forward with a

suit for claiming damages for a sum of Rs.1,00,000/-.

3. The first defendant did not agree to the averment made in the plaint

and filed a written statement hotly contesting the case. This statement was

adopted by the other defendants. The bare facts of the case is that on

15.08.1991, the plaintiff was admitted and underwent Laproscopic

surgery. According to them, the plaintiff did not report any menstrual

S.A.No. 1285 of 2008

problems after the operation and did not come for periodical medical check

up and had willingly carried on with her pregnancy. They would further

submit that, family planning operations are being done with special care as

such operations are of national interest. They would further submit that

the said special care which was endowed to all people was endowed to the

plaintiff also. They would further submit that in every surgery, there is a

given rate of failure and it is unfortunate that in this particular case, the

victim was the plaintiff. They would further submit that to avoid any suits

being filed, the Doctors are in habit of obtaining signature in a prescribed

from those who are operated upon. They denied the allegation that the

plaintiff is a poor person and stated that the Tahsildar gave a report that the

plaintiff's husband is having a house and is getting an annual income of

Rs.6,000/-. The matter was taken up for trial by the learned Special Judge,

Tiruvannamalai.

4. On behalf of the plaintiff, Santhi/ the plaintiff was examined herself

as PW-1 and she marked Exs. A-1 to A-3. On the side of the defendants,

Sundari and Senthamiz Selvi were examined as DW-1 and DW-2

respectively and they marked Exs. B-1 to B-4. The learned trial Judge

S.A.No. 1285 of 2008

took note of the fact that the plaintiff delivered a premature child after a

gestation period of 8 months. The trial Court framed the following issues

for consideration:-

“(i) Whether the plaintiff is entitled to get relief as prayed for:

(ii) To what relief?

Additional issues framed on 09.04.2003;

1) Whether there is a contributary negligency on the part of plaintiff?

2) Whether there is a negligence on the part of defendants?”

5. After detailed examination, the Court came to a conclusion that since

the child was delivered within 8 months of being conceived, it does not

give any credence to the defendants that the child is a fully grown baby

and therefore could have been conceived even before the operation. In

S.A.No. 1285 of 2008

order to reach the conclusion, the learned Trial Judge found that the

laproscopic operation had taken place on 15.08.1991 and the conception

had been taken place only thereafter. She returned a finding that if not

failure of the operation, the plaintiff would not conceived at all. Therefore,

the learned Trial Judge rejected the argument of contributory negligence.

6. On appeal to the Principal Subordinate Judge at Thiruvannamalai. The

learned Judge found that there is no evidence to show that the baby was

born on 18.04.1992 and that it was a premature baby. Therefore, he held

there is a possibility that there might have been a sexual contact between

the plaintiff and her husband before the sterilisation operation. He would

say that there is a possibility of child in the womb even on the date of

sterilisation itself and that relying upon the evidence of DW-1 that had

there been a sexual contact a date prior to the surgery, there is no

possibility of confirming the same at the time of the operation. He would

rely upon the Judgment of the Supreme Court reported in [State of

Haryana Vs. Raj Rani] 2005 (4) M.L.J, 131, stating that the person

claiming compensation has to prove negligence and without negligence,

the plaintiff is not entitled to any compensation. The Lower Appellate

S.A.No. 1285 of 2008

Court would further say that if the plaintiff found the child to be a burden,

she need not have proceeded further and could have aborted the child

instead of keeping the pregnancy and giving birth to child.

7. The learned counsel for the respondent would vehemently contended

that the issue is covered by the Judgment of the Hon'ble Supreme Court in

2005 7 SCC 1 [State Of Punjab vs Shiv Ram & Ors]. He would state that

the doctors are not negligent and if at all anybody is responsible for the

appellant to be pregnant, it is the appellant herself. She has further not

produced any evidence to show that she had kept away from her husband

prior to undergoing laproscopy operation and that every operation has

inherent failure and the present suit is one such case. He further stated that

the appellant should have gone for regular check up. Hence, negligence

cannot be placed on the doors of the doctor.

8. I have carefully considered the pleadings, evidence as well as the

Judgment of the trial Court and the Lower Appellate Court.

9. The appeal was admitted on the following substantial questions of

law:-

S.A.No. 1285 of 2008

“a) Whether the plaintiff/appellant is not entitled to compensation due to negligent act of not properly conducting laproscopic operation?; and

b) Whether the First Appellate Court is right in rejecting the claim of compensation without assigning acceptable reasons?”

10. I have heard M/s. R.T.Sundari, learned counsel appearing for the

appellant and Mr. B.Thamil Nidhi, learned Additional Government

Pleader appearing for the respondents.

11. I am unable to accept the view taken by the Lower Appellate Court.

The Lower Appellate Court did not consider the fact that the laproscopic

operation does not mean that a couple should not indulge in sexual

intercourse. The purpose for which a laproscopic operation undergone is

that a family does not want to have any more children and at the same time,

continue their sexual relationship. The idea of undergoing the operation

is that the couple can continue with their sexual relationship and still be

safe from the burden of bringing up a child. The view of the learned Judge

that the appellant ought to have been aborted the child is shocking to say

the least. It does not settle in with the social remarks of the country, which

S.A.No. 1285 of 2008

does not encourage abortion. Having given birth to two children and

coming from an agricultural coolie background, the learned Judge should

have viewed it in a rather sympathetic way.

12. The view taken by this Court in S.A.(MD).No. 129 of 2006 supports

my view. His Lordship had held that the very failure of the operation itself

will amount to negligence and it is not incumbent on the part of the

respondent/plaintiff to specifically prove the negligence. The view taken

by Hon'ble Mr. Justice M.M.Sundresh ( as His Lordship then was) has

been approved in S.A.Nos. 48 & 49 of 2018 dated 06.02.2018 by the

Hon'ble Mrs. Justice Pushpa Sathyanarayana. The relevant portions of the

said Judgment are extracted hereunder:-

“10. In the above said judgement, it has been held that the basis of liability of a professional in tort is negligence. Unless that negligence is established, the primary liability cannot be fastened on the medical practitioner. Unless the primary liability is established, vicarious liability on the State cannot be imposed. In the

S.A.No. 1285 of 2008

instant case, the Courts below have held that it is only due to the medical negligence and error, the plaintiff conceived and got her fourth child, which according to them, is an unwanted pregnancy. Though it is generally stated that the sterilization is permanent, the failure rates are also on the higher side. It is stated that the failure may be due to age factor of the woman, and the effectiveness also depends on the skill of the provider. In the instant case of the plaintiff, the procedure for sterilization was successful for more than ten years and only after ten years, the plaintiff had become pregnant which went undetected till the advance stage of pregnancy. Considering the background of the plaintiff, who is a wife of a coolie and who had already given birth to three female children and had voluntarily gone for sterlization got conceived after ten (10) years, negligence cannot be attributed either to the Doctor, who performed the procedure, or to the plaintiff for not taking the recommended precautions. The plaintiff had detected the pregnancy only during her advanced stage by which time, the same could not be terminated

S.A.No. 1285 of 2008

and she was forced to deliver the child. Even according to the medical science, there cannot be 100% guarantee for the women sterilization, as there are cases, where, even after the operation, women have become pregnant and delivered child. Hence, either the Surgeon or the employer cannot be held liable for compensation on account of, either unwanted pregnancy or unwanted child. If the conception is immediate, may be the negligence could be attributed to the surgeon, who performed the same. In such circumstances, it has to be seen whether Courts below were right in awarding compensation.

11. Admittedly, the plaintiff and her husband, who is a collie, have got three female children and they are illiterate. The appellants are not private bodies, but it is the State and their duty Doctor. The State may not be aggrieved, as there is no better service than to serve the poor and needy. The plaintiff had undergone the surgery with utmost faith in the hospital, in which, she had undergone the surgery. When her believe and faith was

S.A.No. 1285 of 2008

shaken by the unwanted pregnancy, she could not blame the appellants. The profession of a Doctor only aims at serving the humanity.”

13. In so far as the submissions of the learned Additional Government

Pleader is concerned, I am of the view that this issue had been raised

before Hon'ble Mrs. Justice Pushpa Sathyanarayana and it was not

accepted. What had been rejected & buried by this Court once, need not

be resurrected again. Therefore, though the arguments of the learned

Additional Government Pleader are attractive at the first blush, I am unable

to accept the same.

14. In the light of the clear and categorical view, I am unable to sustain

the view of the Lower Appellate Court and accordingly, it is reversed.

15. In fine, the Second Appeal is allowed. The Judgment and decree of