BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20/12/2006 CORAM: THE HONOURABLE MR.JUSTICE K.MOHAN RAM Writ Petition (MD) No.8645 of 2006 Muthumanickam, W/o.Murugananthan. ... Petitioner vs. 1.The Secretary to Government, Health Department, Government of Tamilnadu, Fort St.George, Chennai-600 009. 2.The District Collector, Madurai District, Madurai. 3.The Dean, Government Head Quarters Rajaji Hospital, Madurai, Madurai District. ... Respondents Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of mandamus directing the 1st respondent to award a compensation of Rs.5,00,000/- to the petitioner. !For Petitioner ... Mr.V.Gopalsamy ^For Respondents ... Mr.D.Sasikumar, 1 to 3 Govt.Advocate. :ORDER
Heard the learned counsel for the petitioner as well as the learned
Government Advocate for the respondents.
2.The petitioner is said to have undergone family planning operation
in the Government Headquarters Rajaji Hospital, Madurai on 31.01.2005. But,
inspite of the operation, she became pregnant again. Setting out the said
facts, the petitioner sent a representation to the second on 07.08.2006 and to
the third respondent on 17.08.2006 seeking adequate compensation. As there was
no response, she again sent a representation to the 1st respondent on 11.09.2006
seeking a compensation of Rs.5,00,000/- and also sought for a job in the third
respondent hospital either to her or to her husband. But no action has been
taken till date. In the said circumstances, the above writ petition has been
filed seeking the issuance of writ of Mandamus.
3.The issue raised in this writ petition is covered by the decision
of this Court in W.P.(MD)No.11048 of 2006, decided on 11.12.2006, wherein this
Court has observed as follows:
“2.Even if the petitioner had undergone a family planning operation and
subsequently she became pregnant that fact alone is not sufficient to establish
the negligence on the part of the surgeon who performed the operation. The
negligence as a matter of fact has to be pleaded and proved with acceptable
evidence and if the surgeon, who performed the operation, is not fully qualified
that has also to be proved by the petitioner. The above said disputed questions
of fact can be established only in a civil Court and not in a writ petition
filed under 226 of the Constitution of India. It is settled law that disputed
questions of fact cannot be gone into in the writ petition filed under Article
226 of the Constitution of India.
3. Therefore, this Court is of the considered view that the the above writ
petition is misconceived and is not maintainable. Accordingly, the writ
petition fails and the same is dismissed. However, it is open to the petitioner
if so advised to seek appropriate legal remedy before the competent forum.”
4.Following the above decision, this writ petition is dismissed.
However, it is open to the petitioner, if so advised, to seek appropriate legal
remedy before the competent forum.
gb.
To:
1.The Secretary to Government,
Health Department,
Government of Tamilnadu,
Fort St.George,
Chennai-600 009.
2.The District Collector,
Madurai District, Madurai.
3.The Dean,
Government Head Quarters Rajaji Hospital,
Madurai, Madurai District.