CASE NO.: Appeal (civil) 2743 of 2002 PETITIONER: State of Haryana & Ors. RESPONDENT: Raj Rani DATE OF JUDGMENT: 29/08/2005 BENCH: CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan JUDGMENT:
J U D G M E N T
With
C.A. No. 1359 of 2005
C.A. No. 5316 of 2005 (@ SLP (c) No. 3106/2004)
C.A. No. 5312 of 2003
C.A. No. 6272 of 2003
C.A. No. 6417 of 2002
R.C. Lahoti, CJI
Leave granted in SLP (C) No. 3106/2004.
In all these appeals, it is not necessary to notice the facts
of individual cases. It would suffice to state that in all these
cases, the plaintiff, a woman, had undergone a sterilization
operation performed by a surgeon in the employment of the
State of Haryana. Subsequent to the performance of the
surgery, the woman became pregnant and delivered a child.
Suit was filed against the doctor who had performed the surgery,
claiming compensation based on the cause of action of
‘unwanted pregnancy’ and ‘unwanted child’, attributable to the
failure of the surgery. State of Haryana was impleaded, claiming
decree against it on the principle of vicarious liability. The suits
have been decreed and such decrees have been put in issue by
filing these appeals by special leave.
A 3-Judge Bench of this Court has held in State of Punjab
v. Shiv Ram & Ors. (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
recanalisation. 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 any negligence of the surgeon. In
the absence of 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.
However, the learned counsel for the appellant-State
stated at the very outset that the plaintiffs in all these cases are
poor persons and the State was not interested in depriving the
decree-holders of the payment made in satisfaction of the
decrees but the State was certainly interested in having the
question of law settled. The stand taken by the appellant-State
has been that in spite of the decrees under appeal having been
set aside, any payment already made thereunder would be
treated by the State as ex gratia payment.
In view of the law laid down in State of Punjab v. Shiv
Ram & Ors.,(supra) all these appeals are allowed. The
judgments and decrees under appeals are set aside. All the suits
filed by the plaintiffs-respondents are dismissed. There will be no
order as to costs throughout. However, any amount paid by the
appellant-State to the plaintiffs-decree holders shall not be liable
to be refunded by way of restitution.
