STATE OF HARYANA AND ORS.versusRAJ RANI

                   STATE OF HARYANA AND ORS.                                    A
                                     V.

                                RAJ RANI

                            AUGUST 29, 2005

                [R.C. LAHOTI, CJ., G.P. MATHUR AND                              B
                    P.K. BALASUBRAMANYAN, JJ.]

      Torts-Medical negligence-Performance of sterilization operation by
a surgeon employed by the State Government-Delivery of unwanted child-
Claim petition/or compensation from the State Government on the principle       C
of vicarious liability-Held : In the absence of proof of negligence,
the Surgeon cannot be held liable-The pregnancy could be for reasons
de hors any negligence of the Surgeon-Consequently, State cannot be
held vicariously liable to pay compensation to the victim-However, the
compensation amount already paid by the State to the ivon1an decree-holder
not to be refunded                                                              D
     The respondent, a women, had undergone a sterilization operation
performed by a surgeon in the employment of the State of Haryana.
However, the woman became pregnant and delivered_ a child. Suit
was filed by her against the doctor claiming compensation from the
State of Haryana on the principle of vicarious liability; The suit and the
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connected suits on the same issue have been decreed. Hence the present
appeals.

     Allowing the appeals, the Court
                                                                                F
      HELD : 1.1. A 3-Judge Bench of this Court has held in the case of
State ofPunjab v. Shiv Ram & Ors. that child birth in spite of• sterilization
operation can occur due to negligence of the doctor in performance of the
operation, or due to certain natural causes such a 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.   G
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            H
                                    1027
    1028                  SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A   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
B   the State being held vicariously liable also would not arise. The decrees
    cannot, therefore, be upheld. [1029-B, C, DJ

        State ofPunjab v. Shiv Ram & Ors. decided by the Supreme Court on
    August 25, 2005, relied on.

C         1.2. However amount, if any, paid by the appellant-State to the
    plaintiffs-decree holders shall not be liable to be refunded by way of
    restitution. [1029-G]

           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2743 of2002.

D       From the Judgment and Order dated 8.10.2001 of the Punjab and
    Haryana High Court in R.S.A. No. 4322 of 2000.

                                         WITH

         C.A. Nos. 6417/2002, 5312, 6272/2003, C.A. Nos. 5316 and 1359 of
E
    2005.

        Ajay Siwach, T.V. George and Pardeep Dahiya, Ms. Jyotika Kalra,
    Bhaskar, Y. Kulkarni and Mrs. K. Sharda Devi for the appearing parties.

F          The Judgment of the Court was delivered by

           R.C. LAHOTI, CJ. : 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,
G   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',
H   attributable to the failure of the surgery. State of Haryana was impleaded,
                   STATE v. RAJ RANI [LAHOTI, CJ.]                          1029

claiming decree against it on the principle of vicarious liability. The suits have   A
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 of2002 decided on August 25, 2005) that child birth in
spite of a sterilization operation can occur due to negligence of the doctor in      B
performance of the operation, or due to certa;n 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
                                                                                     c
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            D
the surgeon. In the absence of proof ofnegligence, 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.

      However, the learned counsel for the appellant-State stated at the very
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outset that the plaintiffs in all these cases are poor persons and the State wa>
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            F
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         G
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.

S.K.S.                                                         Appeals allowed.
                                                                                     H