State
of Haryana & Ors Vs. Raj Rani [2005] Insc
449 (29 August 2005)
Cji
R.C. Lahoti, G.P. Mathur & P.K. Balasubramanyan
J U D
G M E N T With C.A. No. 1359 of 2005 C.A. No. 5316 of 2005 (@ SLP (c) No.
3106/2004) C.A. No. 5312 of 2003 C.A. No. 6272 of 2003 C.A. No. 6417 of 2002
R.C. Lahoti, CJI Leave granted in SLP (C) No. 3106/2004.
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
undergone 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.
A
3-Judge Bench of this Court has held in State of Punjab v. Shiv Ram & Ors. (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% 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 de hors 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.
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.
In
view of the law laid down in State of Punjab v. Shiv Ram & Ors.,(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 will be no order as to costs
throughout. However, any amount paid by the appellant-State to the
plaintiffs-decree holders shall not be liable to be refunded by way of
restitution.
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