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CASE NO.: Appeal (civil)  2743 of 2002

PETITIONER: State of Haryana & Ors.                            

RESPONDENT: Raj Rani

DATE OF JUDGMENT: 29/08/2005

BENCH: CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan

JUDGMENT: J  U  D  G  M  E  N  T With

C.A. No. 1359 of 2005 C.A. No. 5316 of 2005 (@ SLP (c) No. 3106/2004) C.A. No. 5312 of 2003 C.A. No. 6272 of 2003 C.A. No. 6417 of 2002

R.C. Lahoti, CJI

Leave granted in SLP (C) No. 3106/2004.

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.

A 3-Judge Bench of this Court has held in State of Punjab  v. Shiv Ram & Ors. (C.A. 5128 of 2002 decided on August 25,   2005) 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 any 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

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cannot, therefore, be upheld.   

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.   

In view of the law laid down in State of Punjab  v. Shiv  Ram & Ors.,(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.