IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28-06-2010
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
S.A.No.990 of 2009 and
M.P.No.1 of 2009
1. The Medical Officer,
Government Hospital, Uthangarai.
2.State of Tamil Nadu,
represented by the District Collector,
Krishnagiri. .. Appellants.
Versus
Kairunnissa @ Kairoon Bee .. Respondent.
PRAYER: Appeal against the judgment and decree made in A.S.No.9 of 2007, dated 2.11.2007, on the file of the learned Principal Subordinate Judge, Krishnagiri, confirming the judgment and decree made in O.S.No.48 of 2004, dated 30.8.2005, on the file of the District Munsif, Uthangarai.
For Appellants: Ms.R.Revathi, Government Advocate for
Special Government Pleader (C.S.)
For Respondent: Mr.P.Mani
JUDGMENT
This second appeal has been filed against the judgment and decree, dated 2.11.2007, made in A.S.No.9 of 2007, on the file of the Principal Subordinate Court, Krishnagiri, confirming the judgment and decree of the District Munsif Court, Uthangarai, dated 30.8.2005, made in O.S.No.48 of 2004.
2. The second appeal has been filed by the defendants in the suit and the appellants in the first appeal. The plaintiff in the suit, in O.S.No.48 of 2004, on the file of the District Munsif Court, Uthangarai, is the respondent herein. The plaintiff had filed the suit, in O.S.No.48 of 2004, praying for a judgment and decree to permit the plaintiff to sue, as an indigent person and to direct the defendants to pay Rs.1,00,000/-, as compensation, together with interest at 12% per annum, from the date of the suit, till its realization and for costs.
3. The plaintiff, a Muslim lady, had been married to one K.S.Gulabjan. Out of the wedlock she had given birth to three children. Since, the plaintiffs husband is a poor person they had decided not to have a fourth child. Therefore, the plaintiff and her husband had approached the first defendant in the fourth week of June, 1996, for undergoing Tubectomy operation. The plaintiff had been admitted in the General Hospital, at Uthangarai and on 25.6.1996, she underwent the Tubectomy operation. After her discharge from the hospital the plaintiff had followed all the instructions given by the Doctor. However, the plaintiff became pregnant in the month of April, 1999. Later, she had given birth to a female child, on 24.1.2000, at the Primary Health Centre, Samelpatty.
4. It had been stated that the plaintiff had conceived, even after she had undergone the Tubectomy operation, only due to the negligence of the Doctor, who had performed the operation. Therefore, the first defendant is liable for the negligence of the Doctor, who had performed the operation on the plaintiff. The second defendant is vicariously liable to pay compensation to the plaintiff for the negligent manner in which the operation had been performed and for the mental agony caused to the plaintiff and her family members.
5. On behalf of the defendants it had been stated that the procedure to be followed during the Tubectomy operation had been fully explained to the plaintiff and her family members. It had also been informed that there was a chance of 0.5% failure in the operation. No false assurance had been given to the plaintiff that the operation would be 100 per cent successful. It had also been stated that the plaintiff had not consulted any doctor, immediately, after she had conceived. The plaintiff ought to have discussed the matter with the Doctor, who had conducted the operation. Since, there was no negligence on the part of the Doctor the claim of the plaintiff cannot be entertained.
6. In view of the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration:
1) Whether the plaintiff is entitled to get compensation from the first and the second defendants, as prayed for by her?
2) What other relief, the plaintiff is entitled to?
7. Based on the claims made on behalf of the plaintiff, as well as the defendants and on considering the evidence available, the trial Court had partly decreed the suit in favour of the plaintiff directing the defendants to pay the plaintiff Rs.1,00,000/-, as compensation.
8. The trial Court had decreed the suit in favour of the plaintiff, by its judgment and decree, dated 30.8.2005, by coming to the conclusion that the plaintiff had conceived in spite of the Tubectomy operation having been performed on her, only due to the negligence in the performance of such operation.
9. Aggrieved by the judgment and decree of the trial Court, dated 30.8.2005, the defendants in the suit had filed an appeal on the file of the Principal Subordinate Court, Krishnagiri, in A.S.No.9 of 2007. The First Appellate Court, by its judgment and decree, dated 2.11.2007, made in A.S.No.9 of 2007, had confirmed the findings of the trial Court.
10. Aggrieved by the concurrent findings of the Courts below, the defendants in the suit, who were the appellants in the first appeal, had filed the present second appeal before this Court, raising the following questions, as substantial questions of law.
1. Is not it is wrong to shift the burden on the petitioner/defendant?
2. Is not it is the duty of the plaintiff/respondent to prove the case?
3. Whether the appellant is liable for the failure of the operation happens in the rarest of rare cases since 4% failures may occur?
11. The learned counsel appearing on behalf of the appellants had submitted that the judgment and decree passed by the Courts below are contrary to the evidence available on record and the probabilities of the case. It had also been stated that the plaintiff/respondent had not proved before the Courts below that she had conceived due to the negligence of the Doctor, who had performed the Tubectomy operation on her. The Courts below had erred in coming to the conclusion that it is for the defendants to prove that there was negligence on the part of the Doctor concerned, who had performed the operation on the plaintiff. The Courts below had erred in shifting the burden of proof on the defendants instead of holding that it is for the plaintiff to prove her case by sufficient evidence, both oral, as well as documentary.
12. It had also been stated that the plaintiff, as well as her husband had given their consent for performing the operation even though it had been clearly informed to them that there were chances of its failure. It cannot be stated that the plaintiff, being a Pardanashin lady, cannot be presumed to know that there were some chances of failure in Tubectomy operations.
13. The learned counsel appearing on behalf of the appellants had also placed before this Court the decision of the Supreme Court reported in State of Haryana V. Raj Rani (2005(4) CTC 703) in support of her contentions, wherein it had been held as follows:
A 3-Judge Bench of this Court has held in State of Punjab V. Shif Ram and others, 2005(4) CTC 627, (C.A.5128 of 2002, decided on August 25, 2005) that child birth in spite of a sterilization operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous re-canalisation. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognized the percentage of failure of the sterilization operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognized by medical science. Thus, the pregnancy can be for reasons de hors and negligence of the surgeon. In the absence o proof of negligence, the surgeon cannot be held liable to pay compensation. Then the question of the State being held vicariously liable also would not arise. The decrees cannot, therefore, be upheld.
14. The learned counsel appearing on behalf of the respondent had relied on the following decisions in support of his contentions:
14.1. In State of Haryana V. Santra (AIR 2000 Supreme Court 1888), it had been held as follows:
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 the family planning as an important programme for the implementation of which it had created mass awakening for the use of various devices including sterilization operation, the doctor as also the State must be held responsible in damages if the sterilization 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 sterilization.
14.2. In Alice George and another V. Lakshmi (AIR 2007 Madras 130), it had been held as follows:
Both the Courts have clearly pointed out that so long as the family planning operation done by the first defendant on the plaintiff, the subsequent conception of the fourth child by the plaintiff and the delivery of the same by her are all admitted position, it is for the medical person to prove that the operation was done carefully and without any negligence whatsoever. Having failed to do so, it cannot be inferred that it was properly done exercising care, and even then, the child was born, and even after the child was born, it could not be avoided. Once both the courts have recorded a concurrent findings on the facts, this Court is of the considered opinion that nothing requires to make any disturbance over the same.
14.3. In Hasmukh F.Prajapati and another V. Shashikalaben (2007(4) AKAR (NOC) 569), it had been held as follows:
5When the matter was gone into further, it was found that the operation related only to the right fallopian tube and the left fallopian tube was not touched, which indicated that the complete sterilization operation was not done. In the instant case no material brought on record by the appellant in support of his contention that due care was taken; if so what was it? In the absence of the material, we are constrained to draw an adverse inference.
6. In the aforementioned circumstances, we find no infirmity in the orders passed by the State Commission to call for any interference as according to us this is a clear case of medical negligence based on our drawing an adverse inference of non-production of medical record relating to sterilization operation by the appellants.
14.4. In Punnam Somalakshmi and others V. Govt. of A.P. and others (AIR 2007 (NOC) 1238 (A.P.), it had been held as follows:
8. Award of compensation, by its very nature, depends upon the proof of negligence on the part of the persons against whom it is claimed. The failure of the operation conducted upon the first petition is evident from the very fact that the third petitioner was born more than one year after the operation. However, before it is held that the failure was on account of negligence attributable to the respondents alone, specific facts are required to be pleaded and thereafter proved in a given case. Negligence on the part of the person, who has undergone the operation leading to failure, cannot be ruled out. The po9int of time at which the grievance is made out would also assume significance. If the complaint comes to be made immediately after the grievance is felt, the person, who is otherwise responsible, may have an opportunity to take corrective steps.
15. However, from the above decisions it is clear that, compensation could be awarded in cases of a birth of a child even after a Tubectomy operation had been performed, only when the medical negligence is proved, or in cases where there has been a failure on the part of the Doctor concerned to show, prima facie that the operation had been done diligently and with due care. The above cited cases would not be applicable to the present case, since, there was nothing shown by the respondent to substantiate her claim that the appellants had been negligent in performing the operation or that the operation had been performed diligently, with due care and caution.
16. In view of the submissions made on behalf of the appellants, and on a perusal of the records available and in view of the decision of the Supreme Court cited above, this Court is of the considered view that the judgment and decree of the Courts below are not sustainable in the eye of law. From the above decision of the Supreme Court it is clear that unless the negligence of the Doctor, who had performed the Tubectomy operation had been clearly established, by way of sufficient evidence, the question of vicarious liability would not arise to hold the concerned hospital or the Government liable for the failure of the operation.
17. Even though both the Courts below had concurrently found that the defendants in the suit, the appellants herein, are liable to pay an amount of Rs.1,00,000/-, as compensation to the plaintiff, the respondent herein, it is clear that the issue regarding the negligence of the Doctor concerned, in performing the operation, had not been proved by the plaintiff in the suit. In such circumstances, this Court is inclined to hold that the judgment and decree of the Courts below are unsustainable in the eye of law, and therefore, they are liable to be set aside. Therefore, the judgment and decree of the District Munsif Court, dated 30.8.2005, made in O.S.No.48 of 2004, and the judgment and decree of the Principal Subordinate Court, dated 2.11.2007, made in A.S.No.9 of 2007 are set aside. Accordingly, the second appeal stands allowed. No costs. Consequently, connected miscellaneous petition is closed.
Index:Yes/No 28-06-2010 Internet::Yes/No csh To 1) The learned Principal Subordinate Judge, Krishnagiri 2) The District Munsif, Uthangarai. M.JAICHANDREN,J Csh S.A.No.990 of 2009 and M.P.No.1 of 2009 28-06-2010