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AIR 2005 SUPREME COURT 3280
(From:
Punjab and Haryana)*
R. C. LAHOTI, C.J.I., C. K. THAKKER
AND P. K. BALASUBRAMANYAM, JJ.
Civil Appeal No. 5128 of 2002, D/- 25-8-2005
State of Punjab, Appellant v. Shiv Ram and others, Respondents.
(A) Medical Council Act (102 of 1956), S. 20-A Doctor Negligence
Compensation Pregnancy despite sterilization operation _ Compensation
can be awarded only if failure of operation is attributable to
negligence of doctor _ Failure due to natural causes do not provide
ground for claim _ If claimants opt for bearing child despite failure
of operation _ they cannot claim compensation for its upbringing.
R.S.A. No. 2741 of 2001, D/- 26-7-2001 (P & H), Reversed Torts
Negligence Damages.
Contract Act (9 of 1872), 8. 126
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 medical termination 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 un-wanted child. Compensation for maintenance and upbringing of
such a child cannot be claimed.R.S.A. No. 2741 of 2001, D/- 26-7-2001
(P&H), Reversed (Para 28)
The claim for compensation 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 plain tiff
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.
Ordinarily a surgeon does not offer such guarantee. As such a decree
of damages cannot be passed In favour of the plaintiff solely on the
ground that In spite of the plaintiff having under-gone a
sterilization operation, she became pregnant.
(Paras
23,29)
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. Section 3(2), Expin. II provides that 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.
(Paras
26,271) |
