{"id":201681,"date":"2011-07-26T00:00:00","date_gmt":"2011-07-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-district-collector-vs-saraswathi-on-26-july-2011"},"modified":"2018-11-20T18:52:11","modified_gmt":"2018-11-20T13:22:11","slug":"the-district-collector-vs-saraswathi-on-26-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-district-collector-vs-saraswathi-on-26-july-2011","title":{"rendered":"The District Collector vs Saraswathi on 26 July, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
The District Collector vs Saraswathi on 26 July, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 26\/07\/2011\n\nCORAM\nTHE HON'BLE MR.JUSTICE M.M.SUNDRESH\n\nS.A. (MD) No.129 OF 2006\nand\nC.M.P.(MD) No.932 of 2006\n\n1.The District Collector,\n  having office at\n  Katchery,\n  Thanjavur Town.\n  Thanjavur District.\n2.The Superintendent,\n  Government District Head Quarters Hospital,\n  Dr.Moorthy Road,\n  Kumbakonam Town and Munsifi.\n3.The Joint Director,\n  Health Services,\n  Kumbakonam Government Hospital,\n  Dr.Moorthy Road,\n  Kumbakonam.\t\t\t.. Appellants\/Defendants\n\nVs.\n\nSaraswathi\t\t\t.. Respondent\/Plaintiff\n\n\nPrayer\n\nSecond appeal under Section 100 of Civil Procedure Code, against\nthe judgment and decree dated 29.04.2005, passed by the Court of Principal\nDistrict Judge, Thanjavur, in A.S.No.66 of 2004, confirming the judgment and\ndecree dated 27.02.2004 passed by the Court of Principal Subordinate Judge,\nKumbakonam in O.S.No.27\/1999.\n\n!For Appellants ... Mr.S.Kumar\n\t\t    Additional Government Pleader\n^For Respondent\t... Mr.M.V.Krishnan\n\n*****\n\n:JUDGMENT\n<\/pre>\n
\tThe defendants are the appellants herein.  Challenging the judgment and
\ndecree rendered in O.S.No.27 of 1999, on the file of Principal Sub Court,
\nKumbakonam, as confirmed in A.S.No.66 of 2004, on the file of the Principal
\nDistrict Court, Thanjavur, the appellants have filed the present Second Appeal.\n<\/p>\n
\t2. At the time of admission, the following substantial questions of law
\nhave been framed:\n<\/p>\n
” (1) Whether the Courts below erred in allowing the plaint in the absence of
\nproof for negligence on the part of the respondent side Doctors who conducted
\nthe family planning operation?\n<\/p>\n
  (2) Whether the Courts below erred in passing the award of compensation up to
\nan amount of Rs.1,25,000\/- together with interest as just and reasonable?”\n<\/p>\n
\t3. The suit was filed by the respondent herein, claiming damages for a sum
\nof Rs.3,00,000\/- for the negligence committed by a Medical Officer in performing
\nthe family planning operation, the failure of which has resulted in the
\nrespondent’s begetting two girl children. It is the case of the respondent that
\nshe was married to one R.Murugan in the year 1985. The respondent is a house
\nwife and she gave birth to two children. After the birth of the second child,
\nshe was admitted to the 2nd defendant Government Hospital on 04.01.1989 for the
\npurpose of a family planning operation. The operation was done on 05.01.1989 by
\nthe doctors attached to the second respondent hospital. After the operation was
\ndone successfully, she was discharged.\n<\/p>\n
\t4. To the shock and surprise of the respondent, she realised that she
\nbecame pregnant again in spite of the family planning operation. She could not
\ntake any effective step to abort the pregnancy, since by that time the stage was
\nadvanced.  She ultimately, gave birth on 15.09.1992 to twins at St. Annees
\nHospital, Kumbakonam. The husband of the respondent is a daily wager. Due to the
\nnegligence committed by the doctors, who performed the operation, she is made to
\nmaintain two children. Therefore, the suit has been laid claiming damages for a
\nsum of Rs.3,00,000\/- with interest.\n<\/p>\n
\t5. A written statement has been filed by the second appellant and adopted
\nby the other appellants.  It has been admitted in the written statement that on
\n05.01.1989, a family planning sterilization operation was done by the doctors
\nattached to the second respondent. It has been further stated that the operation
\nwas successful. According to the appellants, there would be a chance of failure
\nof 2% in the operation done. The fact that the respondent delivered the children
\nafter three years would exemplify the position, the operation was successful.
\nThere was no negligence on the part of the doctors, who have performed the
\noperation. Hence, it is prayed in the written statement that the suit will have
\nto be dismissed.\n<\/p>\n
\t6. The Courts below on appreciation of facts have decreed the suit for a
\nsum of Rs.1,25,000\/- with 12% interest per annum from the date of institution of
\nthe suit till the date of decree and afterwards 6% interest per annum till date
\nof realization of the amount with proportionate costs. challenging the judgments
\nand decrees rendered by the Courts below, the appellants have preferred the
\npresent appeal framing substantial questions of law as mentioned above.\n<\/p>\n
\t7. The learned counsel appearing for the appellants submitted that the
\nrespondent has not proved the negligence. It is further submitted that the
\noperation was done three years before the respondent gave birth to twins. There
\nis an element of failure in all operations. Since there is no specific fault on
\nthe  doctors, the respondent is not entitled to any damages and hence, it is
\nsubmitted that the judgments and decrees rendered by the Courts below will have
\nto be set aside and the suit is to be dismissed.\n<\/p>\n
\t8. Mr.M.V.Krishnan, the learned counsel appearing for the respondent
\nsubmitted that there is no dispute on facts. The factum of operation and the
\nconsequential delivery of children has never been disputed or denied.  When
\nadmittedly there was failure in the surgery performed, by the doctrine of
\nvicarious liability the appellants will have to pay the compensation. The
\nconcurrent findings of fact held by the Courts below do not warrant any
\ninterference under Section 100 of Civil Procedure Code. Therefore, it is
\nsubmitted that, the Second Appeal will have to be dismissed.\n<\/p>\n
\t9. It is the admitted case of the parties that the respondent was admitted
\nto the 2nd appellant Hospital on 04.01.1989.  Thereafter, the family planning
\noperation was conducted by the doctors of the second appellant hospital. After
\nthe completion of the surgery, it was informed to the respondent that the said
\nsurgery has been successfully completed. The fact that the respondent got
\nconceived thereafter, and delivered two children at the same time on 15.09.1992
\nis not in dispute.  It is also not the case of the appellants that the
\nrespondent was in any way responsible for the delivery of the children. The only
\nplea raised on behalf of the appellant is that there is an element of 2% failure
\nin the operations conducted. The said contention cannot be countenanced for the
\nsimple reason that the respondent was informed that the operation was
\nsuccessful. While it may be true that the failure was not deliberate, it cannot
\nbe denied that the respondent was made to conceive due to the failure caused by
\nthe doctors of the second appellant.  Therefore, by applying the doctrine of
\nvicarious liability, the Courts below have rightly held that the appellants are
\nliable to pay the compensation amount. Un-wantonly the respondent has given
\nbirth to two children due to the mistake committed by the doctors of the second
\nappellant.  Even though the respondent has sought for a sum of Rs.3,00,000\/-,
\nthe Courts below have awarded only a sum of Rs.1,25,000\/- by way of damages. The
\nfactual findings have also been given by the Courts below about the financial
\nstatus of the Courts below.\n<\/p>\n
\t10. The Hon’ble Supreme Court of India in State of Haryana v. Santra,<\/a> 2000
\nACJ 1188 has held that in a case where sterilization operation was performed has
\nfailed and the person, who underwent operation conceived and gave birth to a
\nchild, it has to be presumed that the doctor, who performed the surgery was
\nnegligent. The following passage of the Hon’ble Supreme Court would be apposite:
\n”\n<\/p>\n
…\n<\/p>\n
37. Ours is a developing country where majority of the people live below the
\npoverty line. On account of the ever-increasing population, the country is
\nalmost at the saturation point so far as its resources are concerned. The
\nprinciples on the basis of which damages have not been allowed on account of
\nfailed sterilisation operation in other countries either on account of public
\npolicy or on account of pleasure in having a child being offset against the
\nclaim for damages cannot be strictly applied to the Indian conditions so far as
\npoor families are concerned. The public policy here professed by the Government
\nis to control the population and that is why various programmes have been
\nlaunched to implement the State-sponsored family planning programmes and
\npolicies. Damages for the birth of an unwanted child may not be of any value for
\nthose who are already living in affluent conditions but those who live below the
\npoverty line or who belong to the labour class, who earn their livelihood on a
\ndaily basis by taking up the job of an ordinary labour, cannot be denied the
\nclaim for damages on account of medical negligence.\n<\/p>\n
…\n<\/p>\n
43. The contention as to the vicarious liability of the State for the negligence
\nof its officers in performing the sterilisation operation cannot be accepted in
\nview of the law settled by this Court in N. Nagendra Rao & Co. v. State of
\nAndhra Pradesh, AIR 1994 SC 2663; Common Cause v. Union of India,<\/a> (1999) 6 SCC
\n667 and Achutrao Haribhau Khodwa v. State of Maharashtra,<\/a> 1996 ACJ 505 (SC). The
\nlast case, which related to the fallout of a sterilisation operation, deals,
\nlike the two previous cases, with the question of vicarious liability of the
\nState on account of medical negligence of a doctor in a government hospital. The
\ntheory of sovereign immunity was rejected.\n<\/p>\n
44. Santra, as already stated above, was a poor lady who already had 7 children.
\nShe was already under considerable monetary burden. The unwanted child (a girl)
\nborn to her has created additional burden for her on account of the negligence
\nof the doctor who performed the sterilisation operation upon her and, therefore,
\nshe is clearly entitled to claim full damages from the State Government to
\nenable her to bring up the child at least till she attains puberty.\n<\/p>\n
45. Having regard to the above facts, we find no merit in this appeal which is
\ndismissed but without any order as to costs.”\n<\/p>\n
\t11. The different facets of negligence, has been considered by the
\nHonourable Apex Court in Poonam Verma v. Ashwin Patel,<\/a> 1996 CCJ 721 (SC) in the
\nfollowing manner.\n<\/p>\n
“40. Negligence has many manifestations – it may be active negligence,
\ncollateral negligence, comparative negligence, concurrent negligence, continued
\nnegligence, criminal negligence, gross negligence, hazardous negligence, active
\nand passive negligence, wilful or reckless negligence or negligence per se,
\nwhich is defined in Black’s Law Dictionary as under:\n<\/p>\n
‘Negligence per se.-Conduct, whether of action or omission, which may be
\ndeclared and treated as negligence without any argument or proof as to the
\nparticular surrounding circumstances, either because it is in violation of a
\nstatute or valid municipal ordinance, or because it is so palpably opposed to
\nthe dictates of common prudence that it can be said without hesitation or doubt
\nthat no careful person would have been guilty of it. As a general rule, the
\nviolation of a public duty, enjoined by law for the protection of person or
\nproperty, so constitutes.’ ”\n<\/p>\n
\t12. It has been further observed by the Hon’ble Apex Court that where a
\nperson is guilty of negligence per se, no further proof is needed. The ratio
\nlaid down by the Hon’ble Apex Court has been quoted with the approval in the
\nsubsequent decision of the Hon’ble Apex Court in State of Haryana v. Santra,<\/a>
\n2000 ACJ 1188.\n<\/p>\n
\t13. In Spring Meadown Hospital v. Jarjot Ahluwalia,<\/a> 1998 CCJ 521 (SC), it
\nhas been held by the Hon’ble Apex Court in the following manner:\n<\/p>\n
“In the case in hand we are dealing with a problem which centres round the
\nmedical ethics and as such it may be appropriate to notice the broad
\nresponsibilities of such organisations who in the garb of doing service to the
\nhumanity have continued commercial activities and have been mercilessly
\nextracting money from helpless patients and their family members and yet do not
\nprovide the necessary services. The influence exerted by a doctor is unique. The
\nrelationship between the doctor and the patient is not always equally balanced.
\nThe attitude of a patient is poised between trust in the learning of another and
\nthe general distress of one who is in a state of uncertainty and such
\nambivalence naturally leads to a sense of inferiority and it is, therefore, the
\nfunction of medical ethics to ensure that the superiority of the doctor is not
\nabused in any manner. It is a great mistake to think that doctors and hospitals
\nare easy targets for the dissatisfied patient. It is indeed very difficult to
\nraise an action of negligence. Not only there are practical difficulties in
\nlinking the injury sustained with the medical treatment but also it is still
\nmore difficult to establish the standard of care in medical negligence of which
\na complaint can be made. All these factors together with the sheer expense of
\nbringing a legal action and the denial of legal aid to all but the poorest
\noperate to limit medical litigation in this country.\n<\/p>\n
   15. It was further observed as under:\n<\/p>\n
“In recent days there has been increasing pressure on hospital facilities,
\nfalling standard of professional competence and in addition to all, the ever-
\nincreasing complexity of therapeutic and diagnostic methods and all these
\ntogether are responsible for the medical negligence. That apart, there has been
\na growing awareness in the public mind to bring the negligence of such
\nprofessional doctors to light. Very often in a claim for compensation arising
\nout of medical negligence a plea is taken that it is a case of bona fide mistake
\nwhich under certain circumstances may be excusable, but a mistake which would
\ntantamount to negligence cannot be pardoned. In the former case a court can
\naccept that ordinary human fallibility precludes the liability while in the
\nlatter the conduct of the defendant is considered to have gone beyond the bounds
\nof what is expected of the reasonable skill of a competent doctor.”\n<\/p>\n
\t14. Therefore, considering the said ratio laid down above by the Hon’ble
\nApex Court, this Court is of the view that the very failure of the operation
\nitself would amount to negligence and it is not incumbent on the
\nrespondent\/plaintiff to specifically prove the negligence any further. Further,
\nconsidering that the very fact that after the surgery, the respondent has
\nconceived and delivered children resulting in the failure of the operation,
\nitself would prove the negligence. Moreover, the appellants themselves have
\nadmitted that there is possibility of failure in the operations. Therefore, the
\nnegligence being a question of fact and the same having been proved as found by
\nthe Courts below, there is no substantial question of law involved in this
\nSecond Appeal warranting interference by exercising power under Section 100 of
\nthe Civil Procedure Code.\n<\/p>\n
\t15. Accordingly, the Second Appeal fails and the same is dismissed. No
\ncosts.  Consequently, connected  C.M.P.(MD) No.932 of 2006 is dismissed.\n<\/p>\n
sj<\/p>\n
To<\/p>\n
1. The Principal District Judge,
\n   Thanjavur.\n<\/p>\n
2. The Principal Sub Judge,
\n   Kumbakonam.\n<\/p>\n
3. The District Collector,
\n   Thanjavur District,
\n   having office at
\n   Katchery,
\n   Thanjavur Town.\n<\/p>\n
4. The Superintendent,
\n   Government District Head Quarters Hospital,
\n   Dr.Moorthy Road,
\n   Kumbakonam Town and Munsifi.\n<\/p>\n
5. The Joint Director,
\n   Health Services,
\n   Kumbakonam Government Hospital,
\n   Dr.Moorthy Road,
\n   Kumbakonam.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The District Collector vs Saraswathi on 26 July, 2011 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-201681","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe District Collector vs Saraswathi on 26 July, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-district-collector-vs-saraswathi-on-26-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The District Collector vs Saraswathi on 26 July, 2011 - 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