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2013 DIGILAW 1325 (RAJ)

State of Rajasthan v. Smt. Padam Kanwar

2013-07-22

GOVIND MATHUR

body2013
JUDGMENT 1. - To question correctness of the award dated 11.02.2011 passed by the Permanent Lok Adalat, Jodhpur in Public Utility Case No.5/2007, this petition for writ is preferred. 2. In brief, facts of the case are that the respondent applicant undergone a surgery for sterilisation on 12.05.2006 at Community Health Center, Balesar. In spite of sterilization, the applicant conceived and delivered a girl child on 14.02.2007. Being suffered with mental shock and economic loss caused as a consequence of giving birth to a girl child despite sterilization, she claimed a compensation in a tune of Rs. 2,50,000/- from the present petitioners. On being failed to get any relief by the respondents at their own, she preferred an application as per the provisions of Section 22(B) of the Legal Services Authority Act, 1987. The Permanent Lok Adalat after considering contents of the application and the reply thereto arrived at the conclusion that though there was no evidence about negligence on part of medical practitioner, but the birth of child after sterilisation itself is sufficient to conclude that the medical practitioner was negligent. Accordingly, a compensation in a tune of Rs. 85,000/- was awarded with interest at the rate of 9% per annum. The cost of litigation in a tune of Rs. 1100/- too was awarded. 3. It is submitted by learned counsel for the petitioner that the Permanent Lok Adalat itself observed that the applicant-respondent failed to establish negligence on the part of medical practitioner but awarded compensation, that could have not been given without arriving at a definite conclusion about negligence on the part of medical practitioner with the aid of cogent evidence. To substantiate the contention, reliance is placed by learned counsel for the petitioner upon a judgment of Hon'ble Supreme Court in State of Punjab v. Shiv Ram & Ors., reported in 2005 (2) WLC (SC) Civil 500 . In the case aforesaid, Hon'ble Apex Court arrived at the conclusion that in spite of operation having been successfully performed and without any negligence on the part of Surgeon, the sterilised woman can become pregnant due to natural causes. Compensation in such event can be granted only after arriving at a conclusion that the pregnancy occurred due to some negligence on the part of the surgeon. 4. Compensation in such event can be granted only after arriving at a conclusion that the pregnancy occurred due to some negligence on the part of the surgeon. 4. While opposing the petition for writ and defending the order passed by learned Permanent Lok Adalat, it is submitted by learned counsel for the respondent that the fact of conceiving pregnancy after sterilisation itself is sufficient to presume negligence on the part of the surgeon. He has substantiated his argument with the aid of the judgment of Hon'ble Supreme Court in State of Haryana & Ors. v. Santra (Smt.), reported in (2000) 5 SCC 182 . He has also placed reliance upon a Division Bench judgment of this court in D.B. Civil Special Appeal (Writ) No. 134 of 2002, Mangilal Tavri v. State of Rajasthan & Ors. . 5. Heard learned counsel for the parties. 6. It is not in dispute that the Permanent Lok Adalat while awarding compensation to the respondent under the award dated 11.02.2011 did not arrive at any conclusion relating to negligence on the part of Surgeon. The Permanent Lok Adalat drew presumption of negligence on the count that in spite of sterilization, the applicant conceived pregnancy. It is well-settled that sterilisation is not cent per cent guarantee of not getting conceived. It is having an error value to the extent of 1-2%. Being having error value, the Permanent Lok Adalat should have examined the negligence on the part of surgeon in conducting surgery for sterilization. In absence of such negligence, no tortious liability could have been settled for payment of compensation. Hon'ble Supreme Court in State of Punjab v. Shiv Ram & Ors. (supra) examined this issue in detail and held as under:- 27. The methods of sterilisation so far known to medical science which are most 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. 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 Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to subsection (2) of Section 3 provides- "Explanation II. - 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." 28. And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971. 29. The cause of action for claiming compensation in cases of failed sterilisation operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilisation operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed." 7. So far as the judgment of Hon'ble Supreme Court in State of Haryana & Ors. v. Santra (Smt.) (supra) is concerned, suffice to mention here that in that case, only after arriving at a definite finding regarding negligence on the part of medical practitioner, compensation was awarded. Learned counsel for the respondent also placed reliance upon the Division Bench judgment of this court in Mangilal Tavri v. State of Rajasthan & Ors. (supra), but that too is of no avail as in this case too a definite finding was given about negligence on the part of medical practitioner. 8. Learned counsel for the respondent also placed reliance upon the Division Bench judgment of this court in Mangilal Tavri v. State of Rajasthan & Ors. (supra), but that too is of no avail as in this case too a definite finding was given about negligence on the part of medical practitioner. 8. In view of the discussion made above, especially looking to the law laid down by Hon'ble Supreme Court in the case of State of Punjab v. Shiv Ram & Ors. (supra), I am of considered opinion that the Permanent Lok Adalat erred while awarding compensation to the respondent-applicant. As a consequent thereto, this petition for writ deserves acceptance. Accordingly, the same is allowed. The award dated 11.02.2011 passed by Permanent Lok Adalat, Jodhpur in Public Utility Case No.5/2012 is quashed. The application submitted by learned counsel for the respondent under Section 20(B) of the Legal Services Authority Act, 1987 is dismissed.Petition Allowed. *******