BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/07/2011 CORAM THE HON'BLE MR.JUSTICE M.M.SUNDRESH S.A. (MD) No.129 OF 2006 and C.M.P.(MD) No.932 of 2006 1.The District Collector, having office at Katchery, Thanjavur Town. Thanjavur District. 2.The Superintendent, Government District Head Quarters Hospital, Dr.Moorthy Road, Kumbakonam Town and Munsifi. 3.The Joint Director, Health Services, Kumbakonam Government Hospital, Dr.Moorthy Road, Kumbakonam. .. Appellants/Defendants Vs. Saraswathi .. Respondent/Plaintiff Prayer Second appeal under Section 100 of Civil Procedure Code, against the judgment and decree dated 29.04.2005, passed by the Court of Principal District Judge, Thanjavur, in A.S.No.66 of 2004, confirming the judgment and decree dated 27.02.2004 passed by the Court of Principal Subordinate Judge, Kumbakonam in O.S.No.27/1999. !For Appellants ... Mr.S.Kumar Additional Government Pleader ^For Respondent ... Mr.M.V.Krishnan ***** :JUDGMENT
The defendants are the appellants herein. Challenging the judgment and
decree rendered in O.S.No.27 of 1999, on the file of Principal Sub Court,
Kumbakonam, as confirmed in A.S.No.66 of 2004, on the file of the Principal
District Court, Thanjavur, the appellants have filed the present Second Appeal.
2. At the time of admission, the following substantial questions of law
have been framed:
” (1) Whether the Courts below erred in allowing the plaint in the absence of
proof for negligence on the part of the respondent side Doctors who conducted
the family planning operation?
(2) Whether the Courts below erred in passing the award of compensation up to
an amount of Rs.1,25,000/- together with interest as just and reasonable?”
3. The suit was filed by the respondent herein, claiming damages for a sum
of Rs.3,00,000/- for the negligence committed by a Medical Officer in performing
the family planning operation, the failure of which has resulted in the
respondent’s begetting two girl children. It is the case of the respondent that
she was married to one R.Murugan in the year 1985. The respondent is a house
wife and she gave birth to two children. After the birth of the second child,
she was admitted to the 2nd defendant Government Hospital on 04.01.1989 for the
purpose of a family planning operation. The operation was done on 05.01.1989 by
the doctors attached to the second respondent hospital. After the operation was
done successfully, she was discharged.
4. To the shock and surprise of the respondent, she realised that she
became pregnant again in spite of the family planning operation. She could not
take any effective step to abort the pregnancy, since by that time the stage was
advanced. She ultimately, gave birth on 15.09.1992 to twins at St. Annees
Hospital, Kumbakonam. The husband of the respondent is a daily wager. Due to the
negligence committed by the doctors, who performed the operation, she is made to
maintain two children. Therefore, the suit has been laid claiming damages for a
sum of Rs.3,00,000/- with interest.
5. A written statement has been filed by the second appellant and adopted
by the other appellants. It has been admitted in the written statement that on
05.01.1989, a family planning sterilization operation was done by the doctors
attached to the second respondent. It has been further stated that the operation
was successful. According to the appellants, there would be a chance of failure
of 2% in the operation done. The fact that the respondent delivered the children
after three years would exemplify the position, the operation was successful.
There was no negligence on the part of the doctors, who have performed the
operation. Hence, it is prayed in the written statement that the suit will have
to be dismissed.
6. The Courts below on appreciation of facts have decreed the suit for a
sum of Rs.1,25,000/- with 12% interest per annum from the date of institution of
the suit till the date of decree and afterwards 6% interest per annum till date
of realization of the amount with proportionate costs. challenging the judgments
and decrees rendered by the Courts below, the appellants have preferred the
present appeal framing substantial questions of law as mentioned above.
7. The learned counsel appearing for the appellants submitted that the
respondent has not proved the negligence. It is further submitted that the
operation was done three years before the respondent gave birth to twins. There
is an element of failure in all operations. Since there is no specific fault on
the doctors, the respondent is not entitled to any damages and hence, it is
submitted that the judgments and decrees rendered by the Courts below will have
to be set aside and the suit is to be dismissed.
8. Mr.M.V.Krishnan, the learned counsel appearing for the respondent
submitted that there is no dispute on facts. The factum of operation and the
consequential delivery of children has never been disputed or denied. When
admittedly there was failure in the surgery performed, by the doctrine of
vicarious liability the appellants will have to pay the compensation. The
concurrent findings of fact held by the Courts below do not warrant any
interference under Section 100 of Civil Procedure Code. Therefore, it is
submitted that, the Second Appeal will have to be dismissed.
9. It is the admitted case of the parties that the respondent was admitted
to the 2nd appellant Hospital on 04.01.1989. Thereafter, the family planning
operation was conducted by the doctors of the second appellant hospital. After
the completion of the surgery, it was informed to the respondent that the said
surgery has been successfully completed. The fact that the respondent got
conceived thereafter, and delivered two children at the same time on 15.09.1992
is not in dispute. It is also not the case of the appellants that the
respondent was in any way responsible for the delivery of the children. The only
plea raised on behalf of the appellant is that there is an element of 2% failure
in the operations conducted. The said contention cannot be countenanced for the
simple reason that the respondent was informed that the operation was
successful. While it may be true that the failure was not deliberate, it cannot
be denied that the respondent was made to conceive due to the failure caused by
the doctors of the second appellant. Therefore, by applying the doctrine of
vicarious liability, the Courts below have rightly held that the appellants are
liable to pay the compensation amount. Un-wantonly the respondent has given
birth to two children due to the mistake committed by the doctors of the second
appellant. Even though the respondent has sought for a sum of Rs.3,00,000/-,
the Courts below have awarded only a sum of Rs.1,25,000/- by way of damages. The
factual findings have also been given by the Courts below about the financial
status of the Courts below.
10. The Hon’ble Supreme Court of India in State of Haryana v. Santra, 2000
ACJ 1188 has held that in a case where sterilization operation was performed has
failed and the person, who underwent operation conceived and gave birth to a
child, it has to be presumed that the doctor, who performed the surgery was
negligent. The following passage of the Hon’ble Supreme Court would be apposite:
”
…
37. Ours is a developing country where 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 the 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
daily basis by taking up the job of an ordinary labour, cannot be denied the
claim for damages on account of medical negligence.
…
43. The contention as to the vicarious liability of the State for the negligence
of its officers in performing the sterilisation operation cannot be accepted in
view of the law settled by this Court in N. Nagendra Rao & Co. v. State of
Andhra Pradesh, AIR 1994 SC 2663; Common Cause v. Union of India, (1999) 6 SCC
667 and Achutrao Haribhau Khodwa v. State of Maharashtra, 1996 ACJ 505 (SC). The
last case, which related to the fallout of a sterilisation operation, deals,
like the two previous cases, with the question of vicarious liability of the
State on account of medical negligence of a doctor in a government hospital. The
theory of sovereign immunity was rejected.
44. Santra, as already stated above, was a poor lady who already had 7 children.
She was already under considerable monetary burden. The unwanted child (a girl)
born to her has created additional burden for her on account of the negligence
of the doctor who performed the sterilisation operation upon her and, therefore,
she is clearly entitled to claim full damages from the State Government to
enable her to bring up the child at least till she attains puberty.
45. Having regard to the above facts, we find no merit in this appeal which is
dismissed but without any order as to costs.”
11. The different facets of negligence, has been considered by the
Honourable Apex Court in Poonam Verma v. Ashwin Patel, 1996 CCJ 721 (SC) in the
following manner.
“40. Negligence has many manifestations – it may be active negligence,
collateral negligence, comparative negligence, concurrent negligence, continued
negligence, criminal negligence, gross negligence, hazardous negligence, active
and passive negligence, wilful or reckless negligence or negligence per se,
which is defined in Black’s Law Dictionary as under:
‘Negligence per se.-Conduct, whether of action or omission, which may be
declared and treated as negligence without any argument or proof as to the
particular surrounding circumstances, either because it is in violation of a
statute or valid municipal ordinance, or because it is so palpably opposed to
the dictates of common prudence that it can be said without hesitation or doubt
that no careful person would have been guilty of it. As a general rule, the
violation of a public duty, enjoined by law for the protection of person or
property, so constitutes.’ ”
12. It has been further observed by the Hon’ble Apex Court that where a
person is guilty of negligence per se, no further proof is needed. The ratio
laid down by the Hon’ble Apex Court has been quoted with the approval in the
subsequent decision of the Hon’ble Apex Court in State of Haryana v. Santra,
2000 ACJ 1188.
13. In Spring Meadown Hospital v. Jarjot Ahluwalia, 1998 CCJ 521 (SC), it
has been held by the Hon’ble Apex Court in the following manner:
“In the case in hand we are dealing with a problem which centres round the
medical ethics and as such it may be appropriate to notice the broad
responsibilities of such organisations who in the garb of doing service to the
humanity have continued commercial activities and have been mercilessly
extracting money from helpless patients and their family members and yet do not
provide the necessary services. The influence exerted by a doctor is unique. The
relationship between the doctor and the patient is not always equally balanced.
The attitude of a patient is poised between trust in the learning of another and
the general distress of one who is in a state of uncertainty and such
ambivalence naturally leads to a sense of inferiority and it is, therefore, the
function of medical ethics to ensure that the superiority of the doctor is not
abused in any manner. It is a great mistake to think that doctors and hospitals
are easy targets for the dissatisfied patient. It is indeed very difficult to
raise an action of negligence. Not only there are practical difficulties in
linking the injury sustained with the medical treatment but also it is still
more difficult to establish the standard of care in medical negligence of which
a complaint can be made. All these factors together with the sheer expense of
bringing a legal action and the denial of legal aid to all but the poorest
operate to limit medical litigation in this country.
15. It was further observed as under:
“In recent days there has been increasing pressure on hospital facilities,
falling standard of professional competence and in addition to all, the ever-
increasing complexity of therapeutic and diagnostic methods and all these
together are responsible for the medical negligence. That apart, there has been
a growing awareness in the public mind to bring the negligence of such
professional doctors to light. Very often in a claim for compensation arising
out of medical negligence a plea is taken that it is a case of bona fide mistake
which under certain circumstances may be excusable, but a mistake which would
tantamount to negligence cannot be pardoned. In the former case a court can
accept that ordinary human fallibility precludes the liability while in the
latter the conduct of the defendant is considered to have gone beyond the bounds
of what is expected of the reasonable skill of a competent doctor.”
14. Therefore, considering the said ratio laid down above by the Hon’ble
Apex Court, this Court is of the view that the very failure of the operation
itself would amount to negligence and it is not incumbent on the
respondent/plaintiff to specifically prove the negligence any further. Further,
considering that the very fact that after the surgery, the respondent has
conceived and delivered children resulting in the failure of the operation,
itself would prove the negligence. Moreover, the appellants themselves have
admitted that there is possibility of failure in the operations. Therefore, the
negligence being a question of fact and the same having been proved as found by
the Courts below, there is no substantial question of law involved in this
Second Appeal warranting interference by exercising power under Section 100 of
the Civil Procedure Code.
15. Accordingly, the Second Appeal fails and the same is dismissed. No
costs. Consequently, connected C.M.P.(MD) No.932 of 2006 is dismissed.
sj
To
1. The Principal District Judge,
Thanjavur.
2. The Principal Sub Judge,
Kumbakonam.
3. The District Collector,
Thanjavur District,
having office at
Katchery,
Thanjavur Town.
4. The Superintendent,
Government District Head Quarters Hospital,
Dr.Moorthy Road,
Kumbakonam Town and Munsifi.
5. The Joint Director,
Health Services,
Kumbakonam Government Hospital,
Dr.Moorthy Road,
Kumbakonam.