Research › Search › Judgment

Uttarakhand High Court · body

2005 DIGILAW 191 (UTT)

BALBIR SINGH v. SAVITA LUTHRA

2005-05-27

K.D.SHAHI, LUXMI SINGH

body2005
ORDER Mr. Justice K.D. Shahi, President—This is an appeal against the order dated 6.2.2004 passed by the District Forum, Dehra Dun whereby the complaint of the complainant for compensation on the failure of sterilization operation of his wife was dismissed. 2. The facts of the case are admitted except the quantum of fee. According to the complainant, he paid a sum of Rs. 15,000/- as fee for the operation of his wife, while the doctor has admitted that she has taken fee of Rs. 3,000/- but the operation on 8.1.1999 is admitted. It is admitted that the complainant’s wife has remained hospitalized in the nursing home of the opposite party from 7.1.1999 to 11.1.1999. According to the complainant after the operation there was a guarantee that his wife shall not give birth to any child in future but on 10.3.2001, the wife of the complainant gave birth to a female child. This was due to the negligence of the doctor in the operation. The complainant claimed compensation on various grounds from the doctor as given in the complaint. 3. The doctor has alleged that there is absolutely no cent percent guarantee in these matters and even in best operations, there are chances of failures. 4. The learned Forum after taking the evidence of the parties found that no expert evidence has been produced to show what negligence the doctor has committed. It has further found on the study of literatures that there is no 100% guarantee. Even in the cases of operation by the best doctors, there are failures on which basis the complaint was dismissed. Being aggrieved by that order, the present appeal has been filed. 5. We have heard the learned Counsel for the parties and gone through the records. It is true that the doctor has not produced the papers of operation. It is further true that it cannot be believed that the doctor gives all the papers to the patient but at the same time the burden to prove the negligence of the doctor is on the complainant. According to the complainant himself as pleaded in para 1 of the complaint, the doctor is an expert in family diseases and she has got a reputation in Uttaranchal and Uttar Pradesh as well. The actual pleadings are (“Hindi matter omitted”). Thus it cannot be said that the opposite party is not a competent doctor to operate. According to the complainant himself as pleaded in para 1 of the complaint, the doctor is an expert in family diseases and she has got a reputation in Uttaranchal and Uttar Pradesh as well. The actual pleadings are (“Hindi matter omitted”). Thus it cannot be said that the opposite party is not a competent doctor to operate. The failure is there but there is nothing in the complaint to show what the doctor should have done which she did not do and what she did which she should not have done. To prove the negligence of the doctor, the complainant should have got his wife medically examined by some expert doctor and should have produced evidence that this negligence was done by the opposite party, doctor. Some expert evidence should have been produced to show that the procedure adopted by the opposite party was not correct procedure. But no such expert evidence has been produced. The learned Counsel for the complainant argued that had the doctor produced the papers of operation, it could have been got examined by some doctor and he or she could have given his or her expert opinion. It may be true but if the doctor is an expert on the examination of the earlier operation made by the opposite party, an expert doctor can definitely say if there is any deficiency in the operation or some negligence has been committed. It cannot be said that only on the examination of papers, an expert opinion can be given. No expert evidence has been given in this case. In the ruling reported in II (2005) CPJ 487, Dr. (Mrs.) B. Dubey, Dubey Nursing Home v. Mrs. Bhagvati Sharma, the State Commission has given a finding that in the operation of tubectomy, possibility of conception cannot be ruled out even after successful operation. 6. In the ruling reported in III (1999) CPJ 167 (Del. CDRC), Smt. Jaiwati v. Parivar Sewa Sanstha and Another, the complainant had undergone sterilization but she had conceived after the sterilization. The case, as put forth by the complainant, was a case of ‘sterilization failure’ for which she claimed compensation. The point for consideration before the Delhi State Commission was that whether it can be stated that the opposite parties were guilty of such an error which no doctor of reasonable competence would commit. The case, as put forth by the complainant, was a case of ‘sterilization failure’ for which she claimed compensation. The point for consideration before the Delhi State Commission was that whether it can be stated that the opposite parties were guilty of such an error which no doctor of reasonable competence would commit. One of the most commonly used methods of sterilization is laproscopic sterilization which was adopted in the case of the complainant. The said method involves passing of a ring or band over the fallopian tubes. There are numerous medical studies which testify the fact that all methods of female sterilization, including tubal litigation have a certain failure rate since the risk of failure is inherent in the procedure. In Principles of Gynaecology by Sir Norman Jeffcoate, it has been observed: “No method, however, is absolutely reliable and pregnancy is reported after sub-total and total hysterectomy, and even after the hysterectomy with bilateral saplingectomy. The explanation of these extremely rare cases is a persisting communication between the ovary or tube and vaginal vault. Even when tubal occlusion operations are competently performed and all technical precautions taken, intra-uterine pregnancy occurs subsequently in 0.3% cases. This is because an ovum gains access to spermatozoa through a recanalized segment of the tube.” In the ‘Training Manual’ issued by the Department of Health and Family Welfare, Government of Himachal Pradesh, the procedure of laproscopic sterilization has been stated wherein a mention has been made of failure rate. Further, under the heading ‘Delayed Complications’ mention is made of failure of method leading to pregnancy. 7. In ‘Contraceptive Technology’ a table is given which gives the advantages and disadvantages of all methods of male and female sterilization. The said table also indicates that every method of sterilization has certain failure rate. 8. In the textbook of ‘Obstetrics’ by D.C. Datta, the procedure of laproscopic sterilization has been explained. Table 35.9 makes a mention of failure rate of sterilization, and Table 35.10 mentions the failure rate of laproscopic sterilization. Further, a mention has been made of failure rate of all methods of female sterilization. 9. In the ruling of the Hon’ble Supreme Court and Delhi State Commission mentioned above, after going through the aforesaid extracts from the repudiated medical texts, held that: “the risk of failure is inherent in female sterilization. That risk cannot be obviated despite due care and caution. 9. In the ruling of the Hon’ble Supreme Court and Delhi State Commission mentioned above, after going through the aforesaid extracts from the repudiated medical texts, held that: “the risk of failure is inherent in female sterilization. That risk cannot be obviated despite due care and caution. Risk of failure, being a risk inherent in the procedure and, therefore, it cannot be said that the opposite parties were, in any way, guilty of negligence merely because the procedure as failed. As such assuming that sterilization failure took place in the case of the complainant, it cannot be said that the same is indicative of any negligence on the part of the opposite parties.” 10. The learned Counsel for the complainant referred the ruling reported in III (2004) CPJ 520, Dr. S.D. Kulkarni and Others v. Khandoba Mairal Kodalkar. In this ruling there was interpolation in papers and the consent of the wife was obtained on prescribed format, which too was interpolated and, therefore, compensation was awarded. However in this ruling we do not find any finding or decision regarding the negligence and how it shall be decided. The ruling reported in I (1998) CPJ 1 (SC), Spring Meadows Hospital and Another Etc. v. Harjol Ahluwalia through K.S. Ahluwalia and Another, was referred. In this ruling, an injection was given by nurse, who was not authorized to give injection and, therefore, because of that injection, the victim became totally defunct and was having a vegetative life, therefore, compensation was given. No such allegations have been made in this particular case. In the ruling reported in II (2004) CPJ 12 (SC)=2004 (2) CON.LT 628, Ghaziabad Development Authority v. Balbir Singh, there was dispute regarding housing matter and decision was given how compensation or interest shall be awarded. 11. The negligence cannot be presumed. It is not a case where the negligence is apparent on the face of the record. The complainant should have specifically proved the negligence of the doctor. We do not find any such negligence. One can only be sorry that in spite of operation, a female child was born to the complainant against his wishes but if no negligence of the doctor is proved, the doctor cannot be penalized for that. 12. However this is a welfare state. We do not find any such negligence. One can only be sorry that in spite of operation, a female child was born to the complainant against his wishes but if no negligence of the doctor is proved, the doctor cannot be penalized for that. 12. However this is a welfare state. The complainant is a Government servant and he has definitely alleged in para 7 of his complaint that he has been given an increment of Rs. 60/- per month because of this operation and having only two issues. To our mind it strikes that had the complainant got his wife operated in any Government. Hospital, he would have got an insensitive of Rs. 300/- for this operation but he got his wife operated in a famous hospital by paying handsome sum of Rs. 3,000/- as admitted by the doctor only to be sure that there shall not be any more issue to him. The opposite party has also filed papers to show that the CMO has given a certificate that the present doctor is registered for making such operations on behalf of the Government. The certificate dated 13.4.2005 specifically shows that Luthra Nursing Home is approved by CMO’s office for sterilization. This certificate further shows that Mrs. Reeta Solanki, wife of complainant is registered in their office as a case of sterilization. This specifically shows that the complainant did whatsoever he could have done to get the benefit from the Government for having two children only, therefore, we direct the State Government and the official machinery to continue to give the benefits to the complainant of the operation got done by a Government Servant on having two issues only. The complainant did whatsoever he could have done, the mistake if any is not his, if not that of the doctor, therefore, he should not be deprived of the benefits given by the Government on operations like this. ORDER The appeal is hereby dismissed. However we issue a direction to the State Government to continue to give benefits to the complainant, which he could have obtained has his wife not given birth to third issue after operation and not to withdraw facilities earlier awarded to him. Costs of this appeal shall be easy. Appeal dismissed.