Chhattisgarh High Court: In an appeal filed challenging the impugned judgment passed by the lower court, wherein the court awarded Rs 51,000 towards compensation to the respondent due to the failure of a Laparoscopic Tubectomy (LTT) operation, P. Sam Koshy, J. held that respondent would not be entitled for any compensation/damages as upon conceiving the 5th child (unwanted child) as a result of the alleged failure of the LTT operation, as there was no intimation given by the respondent to the Government or to the concerned Doctor at Primary Health Centre (PHC) from where she had undergone LTT Operation, and if she was really not interested in having the 5th child or was serious about the family planning operation , she must have approached the concerned Doctor at the PHC with a request for termination of her pregnancy in terms of the Medical Termination of Pregnancy Act, 1971.
In this case a family planning camp was organized on 9.12.1998, wherein a large number of women belonging to the said locality had undergone the LTT Operation. The said operation is a surgical sterilization procedure adopted on the willing ladies in order to ensure that they do not have any further children. However, the respondent’s surgery resulted in a failure, as immediately about a year’s time she again conceived and gave birth to her 5th child.
The Court noted that there was no pleading, no evidence led by the respondent to show any lapse or negligence on the part of the doctor conducting the operation or on the part of any other persons involved in the said operation. Further, placing reliance on the Explanation (2) of S.3 of the Medical Termination of Pregnancy Act, 1971 (‘MTP Act’) that provides for termination of pregnancy where pregnancy occurs as a result of failure of device or methods used by any married women or husband for the purpose of limiting the number of children, the court observed that the respondent does not seem to have made any immediate approach to the PHC where the Doctors could have advised the respondent about the options available to her.
The court further observed that “it is established that even after having the 5th child the respondent has further conceived and gave birth to another child i.e., 6th child at a later stage which further gives an indication of the fact that she was not quite serious about the issue of failure of LTT Operation or else she would have taken appropriate remedial measures that were medically available at that point of time”.
The Court took note of the ruling in State of Punjab v. Shiv Ram, (2005) 7 SCC 1, wherein the Court held 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”. It further relied on State of Chhattisgarh v. Meenabai, 2019 SCC OnLine Chh 132 having an almost similar set of facts, wherein the Court has allowed the appeal of the State Government of setting aside the decision passed by the Trial Court.
[State of Chhattisgarh v. Triveni Bai, 2022 SCC OnLine Chh 1557, decided on 22.08.2022]
Advocates who appeared in this case :
Avinash K. Mishra, Advocate, Counsel for the Appellant;
Vivek Tripathi, Advocate, Counsel for the Respondent.