SUPREME COURT OF INDIA
State of Haryana
Vs.
Raj Rani
C.A.No.2743 of 2002
(R.C.Lahoti CJI. and G.P.Mathur JJ.)
29.08.2005
R.C. Lahoti CJI., J.
1. 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 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.
3. A 3-Judge Bench of this Court has held in State of Punjab vs. Shiv Ram and
others (C.A. 5128 of 2002, decided on August 25,2005) (followed) 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 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 laid down in State of Punjab vs. 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 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.