Allowed

State of Rajasthan , through Secretary v. Geeta Devi

Rajasthan HC24 Apr 2024CW/7071/2022

Case brief

AI extract

What is this about?

The High Court of Rajasthan at Jodhpur allowed the writ petition against a consent judgment of a Permanent Lok Adalat compensating a patient for sterilization failure, relying on a coordinate bench order and Supreme Court precedents stating no automatic compensation without proof of negligence.

What did the court decide?

The impugned orders of the Permanent Lok Adalat dated 26.04.2019, 28.05.2019, 28.08.2019, and 30.07.2021, allowing compensation, are quashed and set aside, and all pending applications are disposed of

State of Rajasthan , through Secretary Vs… — Pension and Retirement Benefits | Rajasthan HC (2024)

¶1

[2024:RJ-JD:17984]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶3

S.B. Civil Writ Petition No. 7071/2022

¶4

State Of Rajasthan, Through Secretary, Medical And Health Department, Jaipur

¶5

Chief Medical And Health Officer, Sirohi

¶6

Medical Officer Incharge, Primary Health Centre, Posaliya, Tehsil Sheoganj, Distt. Sirohi

¶7

----Petitioners

¶8

Versus

¶9

Smt. Geeta Devi W/o Bheema Ramji, Aged About 35 Years, R/o 861, Tanki Wali Gali, Ward No. 11, Arathwada, Tehsil Sheoganj, Distt. Sirohi.

¶10

	----Respondent
For Petitioner(s)	: Ms. Khushi Makwana for Ms. Vandana Bhansali
For Respondent(s)	: Mr. Pravin Vyas

¶11

HON'BLE DR. JUSTICE NUPUR BHATI Order

¶12

24/04/2024

¶13

Learned counsel for the parties jointly submit that the issue involved in the present writ petition is squarely covered by the order dated 16.02.2022 passed by a Co-ordinate Bench of this Court in the case of Chief Medical and Health Officer Vs. Jaswinder Kaur & Anr. in S.B. Civil Writ Petition No.11943/2019 and & other connected matters. The order dated 16.02.2022 is reproduced hereunder:-

¶14

“1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

¶15

These writ petitions have been preferred claiming the following reliefs:

¶16

CWP No. 11943/2019:

(2 of 7)

[2024:RJ-JD:17984]

[CW-7071/2022]

“by an appropriate writ, order or direction, the present petition may be allowed and the impugned order dated 26.04.2019 (Annex-3) passed by the learned Chairman Permanent Lok Adalat, Hanumangarh along with other members in case no.147/2006 be quashed and set aside qua the petitioners and consequence thereof the application (Annex-1) filed by the respondent no.1 be rejected qua the petitioners.”

¶21

CWP No.12051/2019:

¶22

“by an appropriate writ, order or direction, the present petition may be allowed and the impugned order dated 28.05.2019 (Annex-4) passed by the learned Chairman Permanent Lok Adalat, Hanumangarh along with other members in case no.39/2010 be quashed and set aside qua the petitioners and consequence thereof the application (Annex-1) filed by the respondent no.2 be rejected qua the petitioners.”

¶23

CWP No.18940/2019:

¶24

“By issuing an appropriate writ, order or direction, the impugned order dated 28.08.2019 (Annex-3) passed by the Permanent Lok Adalat, Bikaner, in Case No.181/2018 may kindly be quashed and set aside.”

¶25

The common controversy involved in all the present petitions is whether the pregnancy of the petitioner after the sterilization operation would entitle the parents for compensation from the State.

¶26

For the sake of brevity, the present adjudication is being made while treating SBCWP No.11943/2019 as a lead case.

¶27

Learned counsel for the petitioner submits that the respondent no. 2 is in fact only a General Physician with an MBBS Degree and not a surgeon, and therefore could not and did not conduct operation of the respondent no.1, neither did he promise the payment of the sum of money of Rs.20,000/- under the relevant government scheme to the respondent no.1, and therefore, should not have been prosecuted for medical negligence.

¶28

Learned counsel for the petitioner further submits that the petitioner was not party to the said application, and therefore, could not file a reply before the learned P.L.A., and was thus,

(3 of 7)

[2024:RJ-JD:17984]

[CW-7071/2022]

incorrectly directed to pay the said sum of money to the respondent no.1.

¶33

Learned counsel for the petitioner, in support of the aforesaid submissions, placed reliance upon the following judgments:

¶34

7.1 State of Rajasthan and Ors. Vs. Smt. Geeta Devi and Ors. (S.B. Civil Writ Petition No. 915/2006, decided on 11.01.2013) , wherein a Coordinate Bench of this Hon’ble Court observed as under:

¶35

“11. In view of the position of law settled by the Hon’ble Supreme Court in Shivram’s case (supra) which squarely applies on the facts of the present case, in considered opinion of this court, the order impugned passed by the Permanent Lok Adalat is not sustainable in eyes of law.

¶36

12. In the result, the writ petition succeeds, it is hereby allowed. The impugned award dated 22.7.05 passed by the Permanent Lok Adalat, Churu in Permanent Lok Adalat Case No. 8/04 is quashed and set aside. However, if any compensation is payable for failure of the sterilization operation in terms of any Scheme notified by the State Government, the respondent no. 1 shall be at liberty to make representation before the State Government in this regard. Needless to say that if any representation is made by the respondent no.1 for payment of compensation in terms of the Scheme, if any, in force of at the relevant time, the same shall be considered by the State Government expeditiously. No order as to costs.”

¶37

7.2. Smt. Geeta Devi and Anr. Vs. State of Rajasthan and Ors. (D.B. Spl. Appl. Writ No. 581/2013, decided on 01.11.2017) , wherein a Division Bench of this Hon’ble Court held as under:

¶38

“No compensation could have been awarded without arriving at a conclusion that there was some negligence on part of the doctor performing sterilization.

¶39

From perusal of the judgment impugned, it is apparent that the Permanent Lok Adalat nowhere arrived at a conclusion about negligence of the doctor performing surgery. Hon’ble Supreme Court in the case of State of Punjab Vs. Shivram & Ors. reported in 2005 (2) WLC (SC), 500 while dealing with the same issue held that without having any finding about

(4 of 7)

[2024:RJ-JD:17984]

[CW-7071/2022]

negligence of Surgeon or its employer, no damages could have been awarded as a tortuous liability.”

¶44

7.3 Chief Medical & Health Officer, Banswara & Anr. Vs. Smt. Nathi and Ors. (S.B. Civil Writ Petition No. 10614/2012, decided on 06.12.2013) , wherein the Coordinate Bench of this Hon’ble Court held asunder:

¶45

“9. … there was no allegation that the respondent no. 2 who performed the sterilization operation has committed any breach of the duty cast on him as surgeon or acted with negligence which has resulted in failure of the sterilization operation … There is nothing on record to show as to what prevented the respondent no. 1 to act promptly and go for abortion if she was not desirous of having yet another child.. . . . .

¶46

11. But then, in Shivram (supra), the Hon’ble Apex Court

¶47

held as under:

¶48

24. 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.. . . .

¶49

29. . . . .It is not for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone 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 be claimed.

¶50

12. In view of the position of law settled by the Hon’ble Supreme Court in Shivram’s case (supra) which squarely applies on the facts of the present case, in the considered opinion of this court, the order impugned passed by the Permanent Lok Adalat is not sustainable in the eye of law.

(5 of 7)

[2024:RJ-JD:17984]

[CW-7071/2022]

13. In the result, the writ petition succeeds, it is hereby allowed. The impugned order dated 28.3.12 passed by the Permanent Lok Adalat, Banswara in Case No. 55/09 is quashed and set aside. However, the respondent no.1 shall be entitled for compensation to the extent it is permissible to be paid to the acceptor of sterilization operation in terms of Family Planning Insurance Scheme introduced w.e.f. 29.11.2005, revised from time to time, in case of failure of sterilization operation. No order as to costs.”

¶55

On the other hand, learned counsel for the respondent No.1 submits that the respondent consented to undergo the sterilization operation on the advice of Dr. Mahendrapal, the Medical Officer at the Primary Health Centre, Dablirathan Tehsil & District Hanumangarh i.e. the respondent No.2 herein, who stated that the respondent no. 1 would receive Rs. 20,000 for the same. Learned counsel also submits that the respondent no.1 underwent the surgery on 07.02.1998.

¶56

Learned counsel for the respondent no.1 further submits that the respondent no.1 despite having undergone the sterilization surgery, conceived a child on 31.10.2006, and that the respondent no.1 having saddled with the financial burden of raising three children, sought relief against the respondent no.2 and the petitioner before the learned P.L.A.

¶57

Learned counsel for the respondent no.1 also submits that the submission so made by the respondent no. 2 before the learned P.L.A that the respondent no.1 could have informed the doctor about the pregnancy in question and sought a safe abortion within the period of three months after such pregnancy, if she truly did not wish to continue with the pregnancy. Learned counsel further submits that her continuation of the pregnancy is indicative of the fact that she wished to give birth to the third child.

¶58

Learned counsel for the respondent no.1 further submits that the learned P.L.A. had rightly observed that the respondent no.1 had undergone a sterilization operation, and that she should not have, as a result of the same, conceived the third child at the first instance itself, and that, the decision to undergo an abortion or not was secondary to that.

¶59

Learned counsel for the respondent no.1 further submits that the learned P.L.A. had also rightly observed that other than the

(6 of 7)

[2024:RJ-JD:17984]

[CW-7071/2022]

respondent no.2, there was no other doctor present on the premises of the concerned Primary Health Centre at Dablirathan on the day, the respondent no.1 underwent the sterilization operation.

¶64

12.1 Learned counsel thus submits that the learned P.L.A. did not find merit in the argument advanced by the respondent no.2 that he is only an M.B.B.S. degree holder, and therefore, incapable of performing any operation.

¶65

Learned counsel for the respondent no. 1 placed reliance on the judgment rendered by this Hon’ble Court in State of Rajasthan & Ors. Vs. Kailash Kanwar & Ors.(S.B. Civil W.P. No. 2438 of 2009, decided on 30.03.2009) , wherein the Hon’ble Court held thus:

¶66

“7. … The applicant – respondent no. 1 is suffering from polio and second child was born after major surgery and at that time, a request was made by the respondent no. 1 and her family members for sterilization operation and thereafter, the said operation was performed by the doctors but even after the sterilization operation, third child was born and these facts are not disputed by the petitioner Department and only assertion was made that there was no negligence on the part of the doctors but the fact remains that a disabled lady suffered not only mental agony but also the maintenance of third child due to negligent act of employees of the State Government. Therefore, the welfare State is under obligation to grant compensation for the act which is caused due to negligence of doctors and has caused harm to the applicant – respondent no. 1. . . . .

¶67

9. In this view of the matter, I am of the opinion that no wrong has been committed by the Permanent Lok Adalat while allowing the compensation of Rs. 2 lakhs in favour of the applicant, which was to be paid upto 16.3.2009. Therefore, no case for interference is made out in the order impugned dated 16.1.2009 passed by Permanent Lok Adalat, Udaipur. Hence this writ petition is dismissed.”

¶68

Heard learned counsel for the parties as well as perused the record of the case, alongwith the judgments cited at the Bar.

(7 of 7)

[2024:RJ-JD:17984]

[CW-7071/2022]

This Court observes that in the judgment rendered in State of Rajasthan Vs. Smt.Geeta Devi (supra) , it was held that the damages may only be claimed once it is satisfactorily proved that there was medical negligence on the part of the concerned doctor concerned.

¶73

This Court further observes, as has been clearly laid down in the judgment rendered in Smt. Geeta Devi Vs. State of Rajasthan (supra) , that only once medical negligence has been proved on the part of the doctors concerned, the damages may be claimed, and thereby, the Hon’ble Division Bench vide the said judgment, had upheld the decision of the Hon’ble Single Bench.

¶74

This Court further observes that in the case of Chief Medical & Health Officer Vs. Smt. Nathi Devi (supra) , on the basis of the judgment of the Hon’ble Apex Court rendered in State of Punjab Vs. Shivram & Ors., 2005(2) WLC (SC) 500 held that any claim as to damages for financial burden, regarding the upbringing and maintenance of the child so conceived after having undergone a sterilization operation, is not sustainable once the parents decide to continue the pregnancy to full term until birth of the child.

¶75

Thus, in light of the aforesaid observations, the present petitions deserve to be allowed, and the same are hereby allowed, and accordingly, the impugned orders dated 26.04.2019 (CW No.11943/2019), 28.05.2019 (CW No.12051/2019) and 28.08.2019 (CW No.18940/2019) are quashed and set aside. All pending applications stand disposed of.”

¶76

In view of the above, the present writ petition is allowed in terms of the order dated 16.02.2022 passed in SBCWP No.11943/2019 and other connected matters, and accordingly, the impugned order dated 30.07.2021 (Annexure-3) is hereby quashed and set aside.

¶77

Stay petition and all pending applications, if any, stand disposed of.

¶78

(DR. NUPUR BHATI),J

¶79

150-amit/-

State of Rajasthan , through Secretary v. Geeta Devi

Case brief

What is this about?

What did the court decide?

State of Rajasthan , through Secretary v. Geeta Devi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Rajeshwar Singh Vs State of Rajasthan

Kan Singh Vs Sambhav Energy Ltd. Sirohi and Anr.

Guddi Devi Vs Nirmla Devi

Anil Vs the Rajasthan Nursing Council

Rampal Sharma Vs State of Rajasthan

Adarsh Shiksha Samiti Vs State of Rajasthan