ORDER
P.K. Misra, J.
1. The petitioner has prayed for quashing the order of the third respondent dated 01.11.2001 and for a direction to the respondents to pay a sum of Rs. 5, 00, 000/- as compensation.
2. The petitioner had undergone tubectomy (Sterilisation Operation) on 22.05.1999 at the Medical Centre, Vadapani Post Partum Project, Corporation of Chennai. However, in spite of such operation, she conceived again. The petitioner has submitted that the operation was performed negligently and therefore, the respondents should be directed to pay compensation and damages to the petitioner. A legal notice was issued by the petitioner on 02.06.2001. Since no reply was received, the petitioner had filed W.P.No. 17498 of 2001, which was disposed of on 25.09.2001, directing the first respondent to consider the notice dated 02.06.2001. Thereafter, the present impugned order has been passed rejecting the application on 01.11.2001. Subsequently, a male child was born to the petitioner on 12.11.2001 and thereafter, the petitioner has been again subjected to Sterlisation Operation. It is the case of the petitioner that since the operation had been performed negligently, the respondents are liable to pay the compensation.
3. A counter affidavit has been filed on behalf of the respondents, wherein it is stated that the tubectomy operation had been conducted with due care by experienced Medical Officer. It is further stated that the negligence was only on the part of the petitioner, as she had not attended the periodical check ups. It has been further stated that the petitioner is put to strict proof regarding the negligence, allegedly committed by the Doctors. It is also indicated that there is always a possibility of recanalisation after tubectomy and the Medical Officers and the Doctors and the Corporation are not responsible for the failure of the family planning operation.
4. Learned counsel for the petitioner has relied upon a decision in the case of Poonam Verma v. Ashwin Patel . That was a case, where the person, who was not an allopathic Doctor, had prescribed certain allopathic medicines for a patient and ultimately, the patient died. In those circumstances, it was held that the Doctor was guilty on account of the negligence.
5. The learned counsel has also placed reliance upon the decision in the case of A.S.Mittal v. State of U.P . The case was related to a public interest litigation. An Eye Camp had been held for effecting surgery. While considering the various proposals and while expressing the opinion on the factual aspects that were required to be gone into, the Supreme Court issued a direction for grant of monetary relief by the State Government on humanitarian consideration.
6. The decision – Nilabati Behera v. State of Orissa, relied upon by the petitioner relates to a case of custodial death and the Supreme Court has granted compensation. That ratio of the said decision may not be strictly applicable to the present case.
7. The decision reported in the case of State of Haryana v. Santra , is more appropriate in the sense that it relates to a case of birth of a child in spite of tubectomy operation. The Supreme Court held that there was negligence on the part of the Doctors and ultimately, the State Government was responsible for the negligence. The award of compensation by the Court below was upheld by the Supreme Court. Ultimately, it was observed:-
” 34. From the above, it would be seen that the Courts in the different countries are not unanimous in allowing the claim for damages for rearing the unwanted child born out of a failed sterilisation operation. In some cases, the Courts refused to allow this claim on the ground of public policy, while in many others, the claim was offset against the benefits derived from having a child and the pleasure in rearing that child. In many other cases, if the sterilisation was undergone on account of social and economic reasons, particularly in a situation where the claimant had already had many children, the Court allowed the claim for rearing the child.”
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” 37. Ours is a developing country where the 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 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.”
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” 42. 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 family planning as an important programme for the implementation of which it has created mass awakening for the use of various devices including sterilisation operation, the doctor as also the State must be held responsible in damages if the sterilisation 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 sterilisation.”
8. Applying the ratio of the above said decision, it has to be seen whether the petitioner is entitled for any compensation. The main objection raised by the learned counsel for the respondents is to the effect that there is no material on record to establish negligence on the part of the Doctors and in normal course, there can be failure of such operation. It is, of course true that the petitioner has not produced any positive material to show negligence at the time of operation. However, in such case, where the failure rate is negligible, the initial presumption would be regarding the negligence in the operation. Thus, the doctrine of Res ipsa loquitur would be applicable to such cases. In other words, where it is found that in spite of undergoing sterilising operation, there is conception and birth of child, the burden would be shifted to the concerned Doctor, to prove that there was no negligence and the fact that “there was conception in spite of tubectomy operation” would speak for itself. In the present case, except a vague denial about the allegations and shifting the blame to the petitioner, no material has been produced on behalf of the respondents to prove that due care had been taken at the time of operation.
9. A question has been raised by the learned counsel for the respondents to the effect that such claim should be decided by adducing evidence in a suit and not in a writ exercising jurisdiction under Article 226 of The Constitution of India. It is true that the disputed question of fact is to be decided in a civil Court and the person has to go before the Civil Court, but in the absence of any prima facie material disclosing the reason for failure of the operation, it would not be proper to drive the petitioner to a Civil Court at this juncture. It has to be remembered that the procedure adopted and the steps taken were within the special knowledge of the Doctor and the other Staff, who had assisted at the time of the operation and such persons being the employees under the respondents and it was within the domain of the respondents to produce prima facie materials that there was no negligence, the presumption of negligence is available to be raised by applying the doctrine of Res ipsa loquitur. Moreover, as held in the compensation is also payable on humanitarian consideration.
10. Having regard to all these aspects, I am of the considered opinion that this is a fit case, where compensation should be paid.
11. The petitioner’s husband is a non technical worker and it is obviously difficult for the petitioner and her husband to maintain the family, which has now become larger because of the arrival of a 3rd child. The petitioner had to undergo a subsequent operation and there cannot be any doubt that she has to bear the prolonged mental as well as physical agony.
12. Having regard to all these aspects, I am of the view that payment of a sum of Rs. 60, 000/- would meet the ends of justice. Accordingly, it is so directed. Out of the amount, sum of Rs. 50, 000/- should be kept in a fixed deposit in the name of the child during his minority and quarterly interest shall be permitted to be withdrawn. Two months time granted to comply with the direction.
13. The writ petition is ordered with the above terms. No costs.