KISMAT Vs. STATE OF U P

JUDGEMENT

(1.) The first petitioner has moved this Court in its writ jurisdiction under Article 226 of the Constitution, seeking compensation of Rs.5 lacs for a failed vasectomy operation, claiming this amount to be necessary for the education and survival of the second petitioner, who is the child born subsequent to the surgery.

(2.) The marriage of the first petitioner is stated to have been solemnized sixteen years ago. The first petitioner and his spouse have five children of whom the last was stated to have been adopted. The first petitioner was operated upon by the district hospital, Hardoi on 27 February 2009 by the fourth respondent. The case is that, despite the surgery, the spouse of the first petitioner became pregnant after a few months of the date of the surgery and the second petitioner was born. An amount of Rs.30,000/- was admittedly paid to the first petitioner and his spouse on 29 May 2013 for the failed vasectomy surgery under and pursuant to an insurance policy of ICICI Lombard General Insurance Co. Ltd. The insurance policy has been obtained by the State and a compensation of Rs.30,000/- was paid.

(3.) The petitioner has relied upon a decision of the Supreme Court in State of Haryana vs. Santra, 2000 5 SCC 182 in support of the claim for compensation. That was a case where a patient had been admitted to a Government Hospital for a sterilization operation. A child was born despite the surgery following which, a suit for damages was filed for medical negligence. The trial Court decreed the claim for an amount of Rs.54,000/- together with interest @ 12% per annum against which, an appeal before the District Court and thereafter a Second Appeal before the High Court were dismissed. The facts of the case would indicate that there was a specific finding of negligence on the part of the surgeon in performing the surgery inasmuch as though the patient had sought a complete sterilization, one of the Fallopian tubes had not been operated upon in the course of the surgery. These facts are clear from the findings recorded in paragraphs 18 and 20 of the judgment of the Supreme Court, which are as follows: