The first petitioner has moved this Court in its writ jurisdiction under Article 226 of the Constitution, seeking compensation of Rs.5 lacs for a failed vasectomy operation, claiming this amount to be necessary for the education and survival of the second petitioner, who is the child born subsequent to the surgery.
The marriage of the first petitioner is stated to have been solemnized sixteen years ago. The first petitioner and his spouse have five children of whom the last was stated to have been adopted. The first petitioner was operated upon by the district hospital, Hardoi on 27 February 2009 by the fourth respondent. The case is that, despite the surgery, the spouse of the first petitioner became pregnant after a few months of the date of the surgery and the second petitioner was born. An amount of Rs.30,000/- was admittedly paid to the first petitioner and his spouse on 29 May 2013 for the failed vasectomy surgery under and pursuant to an insurance policy of ICICI Lombard General Insurance Co. Ltd. The insurance policy has been obtained by the State and a compensation of Rs.30,000/- was paid.
The petitioner has relied upon a decision of the Supreme Court in State of Haryana vs. Santra (Smt.)1 in support of the claim for compensation. That was a case where a patient had been admitted to a Government Hospital for a sterilization operation. A child was born despite the surgery following which, a suit for damages was filed for medical negligence. The trial Court decreed the claim for an amount of Rs.54,000/- together with interest @ 12% per annum against which, an appeal before the District Court and thereafter a Second Appeal before the High Court were dismissed. The facts of the case would indicate that there was a specific finding of negligence on the part of the surgeon in performing the surgery inasmuch as though the patient had sought a complete sterilization, one of the Fallopian tubes had not been operated upon in the course of the surgery. These facts are clear from the findings recorded in paragraphs 18 and 20 of the judgment of the Supreme Court, which are as follows:
"18. The facts which are not disputed are that Smt. Santra, respondent, had undergone a sterilization operation at the General Hospital, Gurgaon, as she already had seven children and wanted to take advantage of the scheme of sterilization launched by the State Government of Haryana. She underwent the sterilization operation and she was issued a certificate that her operation was successful. She was assured that she would not conceive a child in future. But, as luck would have it, she conceived and ultimately gave birth to a female child. The explanation offered by the officers of the appellant State who were defendants in the suit, was that at the time of the sterilization operation, only the right Fallopian tube was operated upon and the left Fallopian tube was left untouched. This explanation was rejected by the courts below and they were of the opinion, and rightly so, that Smt. Santra had gone to the hospital for complete and total sterilization and not for partial operation. The certificate issued to her, admittedly, was also in respect of total sterilization operation.
20. If Smt. Santra, in these circumstances, had offered herself for complete sterilization, 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."
The decision in Santra (supra) did not arise out of the exercise of the writ jurisdiction under Article 226 of the Constitution, but arose out of a decree of the trial Court in a regular civil suit.
The decision in Santra (supra) was rendered by a Bench of two learned Judges of the Supreme Court and subsequently, it was considered in a decision of three learned Judges of the Supreme Court in State of Punjab v. Shiv Ram2. That was also a case where a decree for compensation was passed by the trial Court following the birth of a child, despite a tubectomy operation. The decree was upheld by the first appellate Court, while the second appeal was dismissed by the High Court. The Supreme Court observed, after reviewing the medical literature on the subject that there is, in a sterilization operation, no guarantee of a successful operation in every case and authoritative medical learning on the subject recognizes the possibility of failure depending upon the technique which is chosen. This is evident from the observations contained in paragraph 17 of the judgment, which read as follows:
"17. 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 textbooks on gynaecology and empirical researches which have been carried out recognise the failure rate of 0.3% to 7% depending on the technique chosen out of the several recognised and accepted ones. The technique which may be foolproof is the removal of the 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."
In this state of medical knowledge and medical science, the Supreme Court observed as follows:
"25. 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."
Hence, the view of the Supreme Court was that the cause of action for claiming compensation in a case of a failed sterilization operation would arise on account of negligence of the surgeon and not on account of childbirth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to opt or not to opt for medical termination of pregnancy. Having known of the pregnancy in spite of having undergone the 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, the Supreme Court held, be claimed.
While allowing the appeal, the Supreme Court however, observed that the State Government should contemplate devising welfare schemes or take up the matter with Insurance Companies for obtaining appropriate insurance policies to provide coverage of such claims where a child is born of a woman, despite having undergone a successful sterilization operation. It is in pursuance of these observations that it would appear that a claim of the present nature has been covered under the insurance policies obtained by the State pursuant to which, an amount of Rs.30,000/- has already been paid to claimant in the present case by way of compensation.
Whether, as a matter of fact, the operating surgeon had exercised due and reasonable care while performing the surgery or conversely whether, as the claimant suggests, there was negligence on the part of the surgeon in performing the surgery, cannot be determined in writ proceedings under Article 226 of the Constitution. These are matters of evidence which, in fact, can be resolved only on the basis of material which is produced in the course of the trial of a suit. Santra (supra), in fact, was a case which originated in a suit before the trial Court as was the subsequent decision of the Supreme Court in Shiv Ram (supra). The remedy under Article 226 of the Constitution can, in appropriate cases, be availed of for remedying a violation of the fundamental rights, such as the right to life and personal liberty under Article 21 of the Constitution. Where, however, a claim of the nature, such as the present, intrinsically depends upon proof of an act of medical negligence, such a claim cannot be determined in exercise of writ jurisdiction under Article 226 of the Constitution. A suit for the recovery of the amount of a claim of that nature would be dealt with under the provisions of Section 9 of the Code of Civil Procedure, 1908.
Consequently, we decline to entertain the petition only on the ground that disputed questions of fact, which would arise in these proceedings, would have to be adjudicated upon by the trial Court in a regular civil suit.
Leaving it open to the petitioner to pursue the ordinary civil remedy available in law, we dismiss the petition. However, there shall be no order as to costs.
Order Date :- 23.9.2014 RKK/-