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Equivalent Citation: 2008(3)ShimLC480 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Decided On: 15.09.2008 Appellants: Smt.

Urmila Devi Vs. Respondent: State of H.P. and Ors. Hon'ble Judges: D.D. Sud, J. Subject: Criminal Catch Words Mentioned IN Case Note: Criminal - Recovery of amount - Suit filed by Plaintiff against the State for the recovery of a sum of Rs. 10,05,000/- on the allegations that she had undergone sterilization operation conducted by Defendants and after undergoing surgery she was issued a certificate that the operation was successful and Plaintiff would not bear any children - Held, evidence on record did not establish a case where the surgery had been performed in a manner which would lead to the inference that the Defendants were negligent in performing the surgery - Onus to prove was on the Defendants Plaintiff unable to establish case of medical negligence, no relief could be granted - Suit dismissed. Disposition: Suit dismissed JUDGMENT Dev Darshan Sud, J. 1. This suit has been instituted by Smt. Urmila Devi against the State for the recovery of a sum of Rs. 10,05,000/- on the allegations that she had undergone sterilization (laparoscopic) operation on 6.2.1998 at Institutional Camp Indora, conducted by defendants No. 1 to 3 and after undergoing surgery she was issued a certificate that the operation was successful and the plaintiff would not bear any children. 2. It is pleaded that despite the laparoscopic surgery, the plaintiff conceived and was tested positive for pregnancy on 26.11.1999. Pursuant to this conception a female child was born to the plaintiff on 18.7.2000. The plaintiff alleges that conception was owing to the negligence of defendants No. 1 to 3 and that now she is saddled with the costs of raising a female child, educating her, bringing her up in life, marrying her and settling her in life. The purpose for laparoscopic surgery was to avoid the pregnancy and not to be burdened with the cost of another child which she and her husband could ill afford. 3. A preliminary issue was framed on 7.5.2004, as to whether the suit filed by the plaintiff is within time. Subsequently, this Court framed six more issues on 31.8.2004. The defendants raised a number of objections regarding the maintainability of the suit. Parties went to trial on the following issues: 1-A. Whether the suit is not maintainable as alleged?' OPD. 2. Whether the plaintiff is estopped from filing the present suit as alleged? OPD. 3. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD.

4. Whether the Laparoscopic sterilization operation had failed due to the negligence of defendant No. 3, as alleged? OPP. 5. If issue No. 4 is decided in the affirmative, to what extent the plaintiff is entitled to damages, and if so, from whom? OPP. 6. Relief. Issue No. 4: 4. This is the pivotal issue which requires consideration. Plaintiff seeks to establish negligence of the defendants from the very fact that she has conceived even after laparoscopic surgery on her was declared successful and she was assured that she would not bear any more children. The plaintiff appeared as PW-1 and stated that prior to the sterilization operation she had only one son and after the sterilization operation had been performed, she conceived one more female child. She states that she was issued a certificate Ex.PW-1/A testifying that she had successfully undergone sterilization at Indora. She conceived thereafter and when she got herself examined at Ludhiana, her urine report Ex.PW-1/B proved positive, whereafter she underwent an ultra sonography test and by report Ex. PW-l/C her pregnancy was confirmed. Thereafter she gave birth to a female child which fact is proved by birth certificate Ex.PW-1/D. She had issued noticed Ex.PW-1/E to the State bringing these facts to their notice and demanding compensation. This was again followed by another notice Ex.PW-1/G. The postal receipts are Ex.P-l/F, PW-1/HI to H3. To similar effect is the testimony of her husband PW-2. DW-2, Shri Harbans Lal was posted as Male Health Supervisor at the Community Health Centre at Indora. He states in examination-inchief that the plaintiff had herself voluntarily visited the Community Health Centre, Indora for laparoscopic sterilization. He states that he had explained the positive and negative effects of sterilization operation to the plaintiff and had also made her understand that no hospitalization is required and that this was the easiest way to avoid pregnancy. He is positive in his statement when he says that she should contact a doctor in case she did not menstruate for 15 days after the sterilization. He has proved on record Ex.DA, which is the consent form. He also states in his evidence that on the particular day 56 laparoscopic operations were performed. DW-3 Shri T.K. Roy, is the Block Medical Officer, Indora, who states in his evidence that she wanted to undergo laparoscopic sterilization operation. He says that he examined her and found her fit for surgery and explained to her the pros and cons of the procedure. She was operated upon by Dr. Anil Mahajan and was discharged on the same day and given an introduction card Ex.PW-1/A. He also states in his cross-examination that he told her that in case she does not menstruate for 15 days after due date of menstruation during any cycle she should immediately consult the Medical Officer. 5. DW-4, Dr. Anil Mahajan, conducted the surgery on the plaintiff. He states that he was posted at Sub Divisional Office, Dehra Gopipur and had gone to the Community Health Centre, Indora for organizing a laparoscopic sterilization Camp. He checked the plaintiff and after her consent form Ex.DA was received, he verified that she had been certified fit for laparoscopic surgery by the Block Medical Officer. He also says that her councilor and the Block Medical Officer had told her about the contents of Ex.DA. He informed the plaintiff that the sterilization operation was a mechanical process and there were chances of its failure. In cross-examination he admitted that he conducted about 56 operations on that day. 6. This is the entire evidence which has been placed on the record of the case. The only inference which can be drawn from this evidence is that on the relevant date, the operation was carried out. Whether there has been negligence or not, is something

which has to be established on the record. In State of Punjab v. Shiv Ram and Ors. MANU/SC/0513/2005 : AIR2005SC3280 , the Supreme Court has discussed not only on the question of negligence, but the cause of action entitling the plaintiff to claim damages. Following the decision in Jacob Mathew v. State of Punjab MANU/SC/0457/2005 : 2005CriLJ3710 , the Court held that mere failure of sterilization operation, is no proof that there has been negligence. In-fact, barring the fact that there has been a conception there is nothing on the record, to show that there is any negligence. The birth of a child does not by itself establish the negligence of the doctor performing the surgery. Holding that there is no foolproof sterilization operation, such opinion being based on the Shaw's Textbook of Gynecology. The Court holds in Jacob Mathew's case: 12. In Shaw's Textbook of Gynaecology (Edited by V. Padubidri and Shirish N. Daftar, Eleventh Edition), after describing several methods of female sterilization, the textbook states that the most popular technique adopted in mini-lapartomy sterilization is Pomeroy method in which the fallopian tube is identified on each side, brought out through the incision, and the middle portion is formed into a loop which is tied at the base with catgut and excised. The failure rate is only 0.4% and it is mainly due to spontaneous recanalisation. The operation is simple, requires a short hospitalization, does not require any sophisticated and expensive equipment like a laparoscope, and can be performed in a primary health centre by a doctor trained in this procedure. In Madlener method, a loop of the tube is crushed and ligated with a non-absorbable suture. Failure rate is of 7% and occurrence of an ectopic pregnancy are unacceptable though it is a simple procedure to perform. There are other methods, less popular on account of their indications, which are also stated. Dealing with the topic of complications and sequelae of sterilization, the textbook states: "failure rate of sterilization varies from 0.4% in Pomeroy's technique, 0. 3-0. 6% by laparoscopic method to 7% by Madlener method. Pregnancy occurs either because of faulty technique or due to spontaneous recanalisation. 25. We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilization 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. 26. The cause of failure of sterilization operation may be obtained from laparoscopic inspection of the uterine lubes, or by X-ray examination, or by pathological examination of the materials removed at a subsequent operation of re-sterilization. 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, Second Edition, p. 139). 27. Mrs. K. Sarada Devi, the learned Counsel appearing for the plaintiffs-respondents placed reliance on a 2-Judge Bench decision of this Court in State of Haryana and Ors. v. Smt. 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 sterilization 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 sterilization 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. 28. The methods of sterilization 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 sterilized 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 MedicalTermination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian 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. 29. 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. 30. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. 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 medicaltermination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization 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. 31. For the foregoing reasons, toe are of the opinion that the judgments and the decrees passed by the High Court and Courts below cannot be sustained. The trial Court has proceeded to pass a decree of damages in favour of the plaintiffsrespondents solely on the ground that in spite of the plaintiff-respondent No. 2 having undergone a sterilization operation, she became pregnant. No finding has been arrived at that will hold the operating surgeon or its employer the State, liable for damages either in contract or in tort. The error committed by the trial Court though pointed out to the first appellate Court and the High Court, has been overlooked. The appeal has, therefore, to be allowed and the judgment and decree under appeal have to be set aside. (Emphasis supplied) 7. The evidence on record does not establish a case where the surgery has been performed in a manner which would lead to the inference that the defendants were

negligent in performing the surgery. This issue is, therefore, decided against the plaintiff. Issue Nos. 1, 1-A, 2 and 3: 8. No evidence has been led on these issues. The onus to prove was on the defendants. In view of this, all these issues are decided against the defendants. Issue Nos. 5 and 6: 9. Having held that the plaintiff has been unable to establish of medical negligence, no relief can be granted to the plaintiff. 10. This suit is accordingly dismissed. There shall be no order as to costs. case