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AIR 2005 SUPREME COURT 3279
(From : Punjab and
Haryana)*R.
C. LAHOTI, C. J. 1., G. P. MATHUR AND P. K. BALASUBRAMANYAN, JJ.
Civil Appeal No. 2743 of 2002 with C. A. Nos.6417 of 2002, 5312, 6272
of 2003, 5316 and 1359 of 2005. D/- 29-8-2005.
State of Haryana and others. Appellants v. Raj Rani, Respondent.'
Medical Council Act [102 of 1956] S.20*A Doctor Professional
negligence _ Compensation _ unwanted pregnancy despite sterilization
operation _ Such pregnancy can occur de hors negligence by doctor
Doctor cannot be made to pay compensation without proof of negligence.
R.S.A. No. 4322 of 2000, D/- S-10-2001 (P and H), Reversed. (Paras
2,5)
Cases Referred : Chronological Paras
State of Punjab v. Shiv Ram, 2005 AIR SCW 4108
Ajay Siwach, T. V. George, Pardeep Dalilya. Ms. Jyotika Kaira. Bhaskar
Y. Kulkarni and Mrs. K. Sharda Devi. Advocates, for appearing parties.
R.
C. LAHOTI, C.J.I. : Leave granted In SLP(C) No. 3106/2004
2.
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 under- gone 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.
3,
A 3-Judge Bench of this Court has held In State of Punjab v. Shiv Ram
and others (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°/o 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
dehors and 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.
4.
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.
5.
In view of the law laid down In State of Punjab v. Shiv Ram & others,
(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 wilt be no order as to
costs through- out. However, any amount-paid by the appellant-State to
the plaintiffs-decree holders shall not be liable to be refunded by
way of restitution.
Appeal allowed |
