2005 Supreme(SC) 1088

2005(6) Supreme 58
Supreme Court of India
(From Punjab and Haryana High Court)
R.C. Lahoti, CJI, C.K. Thakker & P.K. Balasubramanyan, JJ.
State of Punjab —Appellant
versus
Shiv Ram & Ors. —Respondents
Civil Appeal No. 5128 of 2002
Decided on 25-8-2005
Counsel for the Parties :
For the Appellant : D.P. Singh, Addl. Advocate General for State of Punjab, Ms. Avneet Toor, Sanjay Jain, Arun K. Sinha, Advocate (NP)/Advocates.
For the Respondents Nos. 1-2 : Mrs. K. Sarada Devi, Advocate.

Important point
Merely because a woman having undergone a sterilization operation became pregnant and delivered a child, operating surgeon or his employer could not be held liable for compensation on account of unwanted pregnancy or unwanted child.

Headnote:Constitution of India—Article 136 —Medical Negligence—Appeal against decree for compensation in a suit for damages on account of a female child born inspite of plaintiff wife having undergone a tubectomy operation performed by lady surgeon of State Hospital—Courts below proceeded on reasoning that on birth of child to a woman who was allured into undergoing sterilization operation by State in pursuance of its Family Planning Schemes, State was liable to compensate—Principles on which liability of medical professional is to be determined—No allegations in suit that Surgeon who performed sterilization operation was not competent—No findings were arrived by Courts below that surgeon was negligent in performing surgery—Surgery was performed by a technique known and recognised by medical science—None of the several alternative methods of female sterilization operation was fool proof—Claim in tort could be sustained only if there was negligence on part of surgeon and proof of negligence shall have to satisfy Bolam’s test—Impugned judgment could not be sustained.

       Held : The plaintiffs have not alleged that the lady surgeon who performed the sterilization operation was not competent to perform the surgery and yet ventured into doing it. It is neither the case of the plaintiffs, nor has any finding been arrived at by any of the courts below that the lady surgeon was negligent in performing the surgery. The present one is not a case where the surgeon who performed the surgery has committed breach of any duty cast on her as a surgeon. The surgery was performed by a technique known and recognized by medical science. It is a pure and simple case of sterilization operation having failed though duly performed. The learned Additional Advocate General has also very fairly not disputed the vicarious liability of the State, if only its employee doctor is found to have performed the surgery negligently and if the unwanted pregnancy thereafter is attributable to such negligent act or omission on the part of the employee doctor of the State. (Para 8)

       It is thus clear that there are several alternative methods of female sterilization operation which are recognized by medical science of today. Some of them are more popular because of being less complicated, requiring minimal body invasion and least confinement in the hospital. However, none is foolproof and no prevalent method of sterilization guarantees 100 success. The causes for failure can well be attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon. Authoritative Text Books on Gynaecology and empirical researches which have been carried out recognize the failure rate of 0.3 to 7 depending on the technique chosen out of the several recognized and accepted ones. The technique which may be foolproof is removal of uterus itself but that is not considered advisable. It may be resorted to only when such procedure is considered necessary to be performed for purposes other than merely family planning. (Para 17)

       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. (Para 23)

       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 unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed. For the foregoing reasons, we 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 plaintiffs-respondents 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. (Paras 28 and 29)