VERY IMPORTANT POINT
In a country where the population is increasing by the tick of every second on the clock and the Government had taken up the family planning as an important programme for the implementation of which it had created mass awakening for the use of various devices including sterilisation operation, the doctor as also the State must be held responsible in damages if the sterilisation operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who had chosen to be operated upon for sterilisation.

Headnote:Torts-Medical negligence-Family planning programme of State Government-Sterilisation operation at Government Hospital-Certificate issued that full, complete and successful sterilisation operation had been performed upon respondent-Respondent conceiving and giving birth to a girl child-Suit for damages-Evidence that only right Fallopian Tube was operated upon while left tube untouched-Trial Court awarding Rs. 54000/- with interest at 12 -State s plea of theory of sovereign immunity against vicarious liability of its doctor rejected-Doctor and State responsible for damages for failure of sterilisation on account of negligence-Unwanted child created additional burden on account of negligence of doctor-Respondent entitled to claim full damages from State to enable her to bring up the child at least till the girl attains puberty.
       Negligence is a tort . Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known is implied undertaking by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. (Para 10)
       Family Planning is a National Programme. It is being implemented through the agency of various Govt. Hospitals and Health Centres and at some places through the agency of Red Cross. In order that the National Programme may be successfully completed and the purpose sought may bear fruit, every body involved in the implementation of the Programme has to perform his duty in all earnestness and dedication. The Govt. at the Centre as also at the State level is aware that India is the second most-populous country in the world and in order that it enters into an era of prosperity, progress and complete self-dependence, it is necessary that the growth of the population is arrested. It is with this end in view that family planning programme has been launched by the Government which has not only endeavoured to bring about an awakening about the utility of family planning among the masses but has also attempted to motivate people to take recourse to family planning through any of the known devices or sterilisation operation. The Programme is being implemented through its own agency by adopting various measures, including the popularisation of contraceptives and operation for sterilising the male or female. The implementation of the Programme is thus directly in the hands of the Govt. officers, including Medical Officers involved in the family planning programmes. The Medical Officers entrusted with the implementation of the Family Planning Programme cannot, by their negligent acts in not performing the complete sterilisation operation, sabotage the scheme of national importance. The people of the country who cooperate by offering themselves voluntarily for sterilisation reasonably expect that after undergoing the operation they would be able to avoid further pregnancy and consequent birth of additional child. (Para 17)
       If Smt. Santra, in these circumstances, had offered herself for complete Sterilisation, both the Fallopian Tubes should have been operated upon. The Doctor who performed the operation acted in a most negligent manner as the possibility of conception by Smt. Santra was not completely ruled out as her left Fallopian Tube was not touched. Smt. Santra did conceive and gave birth to an unwanted child. Who has to bear the expenses in bringing up the "unwanted child", is the question which is to be decided by us in this case. (Paras 18 and 19)
       The courts in the different countries are not unanimous in allowing the claim for damages for rearing up the unwanted child born out of a failed sterilisation operation. In some cases, the courts refused to allow this claim on the ground of public policy, while in many other, the claim was offset against the benefits derived from having a child and the pleasure in rearing up that child. In many other cases, if the sterilisation was undergone on account of social and economic reasons, particularly in a situation where the claimant had already had many children, the court allowed the claim for rearing up the child. (Para 32)
       Ours is a developing country where majority of the people live below the poverty line. On account of the ever-increasing population, the country is almost at the saturation point so far as its resources are concerned. The principles on the basis of which damages have not been allowed on account of failed sterilisation operation in other countries either on account of public policy or on account of pleasure in having a child being offset against the claim for damages cannot be strictly applied to the Indian conditions so far as poor families are concerned. The public policy here professed by the Government is to control the population and that is why various programmes have been launched to implement the state-sponsored family planning programmes and policies. Damages for the birth of an unwanted child may not be of any value for those who are already living in affluent conditions but those who live below the poverty line or who belong to the labour class who earn their livelihood on daily basis by taking up the job of an ordinary labour, cannot be denied the claim for damages on account of medical negligence. (Para 35)
       It is, no doubt, true that the parents are under an obligation to maintain their minor children. This is a moral, apart from a statutory, liability in view of the provisions contained in Section 125 of the Code of Criminal Procedure. It is also a statutory liability on account of Section 20 of the Hindu Adoptions and Maintenance Act. But the statutory liability to maintain the children would not operate as a bar in claiming damages on account of tort of medical negligence in not carrying out the sterilisation operation with due care and responsibility. The two situations are based on two different principles. The statutory as well as personal liability of the parents to maintain their children arises on account of the principles that if a person has begotten a child, he is bound to maintain that child. Claim for damages, on the contrary, is based on the principle that if a person has committed civil wrong, he must pay compensation by way of damages to the person wronged. (Paras 36 and 38)
       Having regard to the above discussion, we are positively of the view that in a country where the population is increasing by the tick of every second on the clock and the Government had taken up the family planning as an important programme for the implementation of which it had created mass awakening for the use of various devices including sterilisation operation, the doctor as also the State must be held responsible in damages if the sterilisation operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who had chosen to be operated upon for sterilisation. (Para 40)
       The contention as to the vicarious liability of the State for the negligence of its officers in performing the sterilisation operation cannot be accepted. Smt. Santra, as already stated above, was a poor lady who already had seven children. She was already under considerable monetary burden. The unwanted child (girl) born to her has created additional burden for her on account of the negligence of the doctor who performed sterilisation operation upon her and, therefore, she is clearly entitled to claim full damages from the State Govt. to enable her to bring up the child at least till she attains puberty. (Paras 41 and 42)

JUDGMENT

S. Saghir Ahmad, J.-Leave granted.

2. Medical Negligence plays its game in strange ways. Sometimes it plays with life; sometimes it gifts an "Unwanted Child" as in the instant case where the respondent, a poor labourer woman, who already had many children and had opted for sterilisation, developed pregnancy and ultimately gave birth to a female child in spite of sterilisation operation which, obviously, had failed.

3. Smt. Santra, the victim of the medical negligence, filed a suit for recovery of Rs. 2 lakhs as damages for medical negligence, which was decreed for a sum of Rs. 54,000/- with interest at the rate of 12 per cent per annum from the date of institution of the suit till the payment of the decretal amount. Two appeals were filed against this decree in the court of District Judge, Gurgaon, which were disposed of by Addl. District Judge, Gurgaon, by a common judgment dated 10.5.1999. Both the appeals - one filed by the State of Haryana and the other by Smt. Santra were dismissed. The second appeal filed by the State of Haryana was summarily dismissed by the Punjab and Haryana High Court on 3.8.1999. It is in these circumstances that the present Special Leave Petition has been filed in this court.

4. "Sterilisation Scheme", admittedly, was launched by the Haryana Govt. and taking advantage of that scheme, Smt. Santra approached the Chief Medical Officer, Gurgaon, for her sterilisation in 1988. The sterilisation operation was performed on her and a certificate to that effect was also issued to her on 4.2.1988 under the signatures of the Medical Officer, General Hospital, Gurgaon, Smt. Santra was assured that full, complete and successful sterilisation operation had been performed upon her and she would not conceive a child in future. But despite the operation, she conceived. When she contacted the Chief Medical Officer and other Doctors of the General Hospital, Gurgaon, she was informed that she was not pregnant. Two months later when the pregnancy became apparent, she again approached those Doctors who then told her that her sterilisation operation was not successful. Dr. Sushil Kumar Goyal, who was examined as DW-2, stated that the operation related only to the right Fallopian Tube and the left Fallopian Tube was not touched, which indicates that `complete sterilisation operation was not done. She requested for an abortion, but was advised not to go in for abortion as the same would be dangerous to her life. She ultimately gave birth to a female child. Smt. Santra already had seven children and the birth of a new child put her to unnecessary burden of rearing up the child as also all the expenses involved in the maintenance of that child, including the expenses towards her clothes and education.

5. It was in these circumstances that the suit was filed by Smt. Santra which was contested by the State, who, besides taking up the technical pleas relating to non-maintainability of the suit on various grounds, denied in the written statement that there was any negligence on the part of the Medical Officer of the General Hospital, Gurgaon. It was contended by the defendants that the sterilisation operation performed upon Smt. Santra on 4.2.1988 was done carefully and successfully and there was no negligence on the part of the Doctor who performed that operation. It was further pleaded that Smt. Santra had herself put her thumb impression on a paper containing a recital that in case the operation was not successful, she would not claim any damages. It was pleaded that she was estopped from raising the plea of negligence or from claiming damages for an unsuccessful sterilisation operation from the State which, it was further pleaded, was not liable even vicariously for any lapse on the part of the Doctor who performed the operation.

6. The trial court as also the lower appellate court both recorded concurrent findings of fact that the sterilisation operation performed upon Smt. Santra was not complete as in that operatio

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2000 Supreme(SC) 840

Cases Referred (5)