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Judgment
G. Rajasuria, J.—This second appeal is focussed by the plaintiff, inveighing the judgment and decree dated 13.07.2011 passed by the
learned Additional District and Sessions Judge cum Fast Track Court No. II, Coimbatore in A.S. No. 81 of 2009 in reversing the judgment and
decree dated 15.12.2008 passed by the learned Subordinate Judge, Pollachi in O.S. No. 180 of 2004. The parties, for the sake of convenience,
are referred to here under according to their litigative status and ranking before the trial Court.
Heard the learned counsel for the appellant.
Compendiously and concisely, the germane facts absolutely necessary for the disposal of this second appeal would run thus:
a] Pithily and precisely, the facts as stood unveiled and un-curtained from the plaint averments would run thus:
a] The plaintiff, Sumathi filed the suit seeking the following reliefs:
- to grant a decree directing the defendants to pay a sum of Rs. 3,00,000/- (Rupees three lakhs only) towards damages to the plaintiff with interest
from 8.3.2000 at 24% till realisation and for costs. (extracted as such)
On the main ground that she underwent sterilisation operation on 25.12.1997 and as on that date, she had already two children to her credit. It so
happened that even after the sterilisation operation, she got conceived and gave birth to a child. Whereupon she filed the suit seeking the aforesaid
reliefs by contending that there was medical negligence in conducting the medical operation, which alone had resulted in the plaintiff giving birth to
her third child.
b] Per contra, D4 filed the written statement, which was adopted by the other defendants, the warp and woof of the averments therein would run
thus:
There is nothing to indicate that there was any medical negligence on the part of the Doctor, who conducted the operation. The plaintiff also did not
take any steps to undergo abortion on knowing that she got conceived.
Accordingly, they prayed for the dismissal of the suit.
c] Whereupon issues were framed by the trial court.
d] Up went the trial, during which, the plaintiff examined herself as PW1 along with P.W. 2 and marked Exs. A1 to A9. On the side of the
defendants, DW1 and DW2 were examined and Exs. B1 to B4 were marked.
e] Ultimately, the trial court decreed the suit awarding Rs. 1,08,000/- as damages; as against which, the defendants'' preferred appeal; whereupon,
the first appellate court reversed the judgment and decree of the trial court and dismissed the original suit.
f] Challenging and impugning the judgment and decree of the first appellate court, the plaintiff has preferred this second appeal on various grounds
and also suggesting the following substantial questions of law:
Whether the lower appellate court erred in holding that the appellant has conceived due to spontaneous and natural re-canalization of the
severed fallopian tubes without any evidence on record?
Whether the lower appellate court erred in holding that the appellant was explained about pros and cons of the sterilisation operation by
misconstruing the exhibit B-1?
Whether the lower appellate court is correct in holding that the appellant conceived after 1 = years after the operation itself proof that there is no
possibility of medical negligence based on theory of probability and not based on oral and documentary evidence? [extracted as such]
The learned counsel for the plaintiff, placing reliance on the grounds of second appeal would pyramid his argument, the epitome and the long and
short of it would run thus:
Ex facie and prima facie, it is pellucidly and palpably clear that the Doctor, who conducted the sterilisation operation failed to exercise due care
and skill in conducting the operation and because of that alone, within a period of a year and a half, the plaintiff got conceived and that itself
betokens and bespeaks about the negligence of the Doctor, who conducted the operation and the trial court appropriately and appositely,
correctly and legally awarded damages; but the first appellate court on conjectures and surmises, simply reversed the findings of the trial court and
dismissed the original suit itself, warranting interference in this second appeal.
At the outset itself, I would like to fumigate my mind with the following decisions of the Hon''ble Apex Court and certain excerpts from those
decisions would run thus:
(i)V State of Punjab Vs. Shiv Ram and Others,
We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilisation operation became pregnant and
delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted
child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence
shall have to satisfy Bolam''s test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had
assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo
surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee.
The cause of failure of the sterilisation operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination,
or by pathological examination of the materials removed at a subsequent operation of resterilisation. The discrepancy between operation notes and
the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of
negligence on the part of the gynaecologist in case of failure of sterilisation operation. (See Law of Medical Negligence and Compensation by R.K.
Bag, 2nd Edn., p. 139)
Mrs. K. Sarada Devi, the learned counsel appearing for the plaintiff-respondents placed reliance on a two-Judge Bench decision of this Court
in State of Haryana v. Santra wherein this Court has upheld the decree awarding damages for medical negligence on account of the lady having
given birth to an unwanted child on account of failure of sterilisation operation. The case is clearly distinguishable and cannot be said to be laying
down any law of universal application. The finding of fact arrived at therein was that the lady had offered herself for complete sterilisation and not
for partial operation and, therefore, both her fallopian tubes should have been operated upon. It was found as a matter of fact that only the right
fallopian tube was operated upon and the left fallopian tube was left untouched. She was issued a certificate that her operation was successful and
she was assured that she would not conceive a child in future. It was in these circumstances, that a case of medical negligence was found and a
decree for compensation in tort was held justified. The case thus proceeds on its own facts.
The methods of sterilisation so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of
the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilised woman can become
pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical
advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of
pregnancy by a registered medical practitioner, notwithstanding anything contained in the Penal Code, 1860 in certain circumstances and within a
period of 20 weeks of the length of pregnancy. Explanation II appended to sub-section (2) of Section 3 provides:
Explanation II. Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the
purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the
mental health of the pregnant woman.
And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it
can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971.
The cause of action for claiming compensation in cases of failed sterilisation operation arises on account of negligence of the surgeon and not
on account of childbirth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to
go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone the sterilisation
operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child
cannot be claimed.
(ii) State of Haryana and Others Vs. Raj Rani,
A three-Judge Bench of this Court has held in State of Punjab Vs. Shiv Ram and Others, that childbirth in spite of a sterilisation 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 recognised the percentage of failure of the sterilisation 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 recognised by medical science. Thus, the pregnancy can be for reasons dehors 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.
A mere running of the eye over those decisions would exemplify and demonstrate, display and connote that merely because, after the sterilisation
operation, a lady gives birth to a child, there is no presumption that there was medical negligence.
The onus probandi is on the part of the plaintiff to prove that there was medical negligence. The first appellate court correctly pointed out that in
these days, there are methods to find out as to whether the plaintiff conceived after the operation due to spontaneous recanalisation of fallopian
tubes out of natural causes or because of the negligence of the Doctor. Absolutely, there is no iota or shred, shard or miniscule extent of evidence
to show that there was any such negligence on the part of the Doctor, who conducted the operation. It has also been highlighted by the defendants
that the plaintiff never even took care to approach the Government Hospital for getting the pregnancy aborted at the earliest point of time. In such a
case, I could see no illegality or infirmity in the judgment and decree of the first appellate court, warranting interference in this second appeal.
In the result, this second appeal is dismissed. However, there shall be no order as to costs.