USHA DEVI Vs. STATE OF U P

JUDGEMENT

(1.) Petitioners are claiming themselves to be the alleged victims of unsuccessful tubectomy commonly known as female sterilization, performed on them, as a result of which they have now given birth to an unwanted child and as they belong to the marginalized section of the society, hence, they are unable to bare the strain of raring of such a child, putting them under immense physical, mental and financial stress that they have now staked a claim for compensation/damages from the State, alleging medical negligence of the doctor concerned.

(2.) The submission of Sri M.S. Pandey, learned counsel appearing in the petitions is that as medical negligence is established per se from the documents on record, in as much as, tubectomy stands proved and there are authentic documents on record to prove that even after the victims had undergone tubectomy, yet unfortunately they have conceived again and given birth to an unwanted child and therefore, considering the social background and the financial status of the victims and in view of the schemes launched by the Central Government for grant of compensation/damages, each of the victims is entitled to appropriate damages/compensation to be paid by the State Government for the medical negligence of the doctor concerned. To buttress his submission, learned counsel for the petitioners placed reliance on a Division Bench judgment of this court, Smt. Shakuntala Sharma and others Vs. State of U.P. and others, 2000 AIR(All) 219 wherein in such a situation the court directed for grant of compensation to the tune of Rs. 1 lac to the victim, a copy whereof has been filed as Annexure-6 to the writ petition no. 37288 of 2009.

(3.) Per contra, the submission of Sri Pankaj Saxena, learned Standing Counsel for the State-respondent is that it has now been established by decisions of the Apex Court, relying on the opinion of Medical Experts in Obstetrics and Gynaecology that failure of tubectomy can also be attributed to natural causes, beyond the control of the doctor who carried out such sterilization and therefore, till such time, it is not established by way of evidence on record as to whether it was the negligence of the doctor concerned or because of natural reasons that the child was born on account of unsuccessful tubectomy a claim for compensation under Article 226 of the Constitution of India is not maintainable and therefore, the writ petition is not the appropriate remedy and accordingly the same is liable to be dismissed.