R.C Lahoti, C.J—Leave granted in SLP (C) No. 3106 of 2004.
2. 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 sterilisation 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 surgery. The 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.
3. A three-Judge Bench of this Court has held in State of Punjab v. Shiv Ram (2005) 7 SCC 1 that childbirth in spite of a sterilisation 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 recognised the percentage of failure of the sterilisation 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 recognised by medical science. Thus, the pregnancy can be for reasons dehors 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 cannot, therefore, be upheld.
4. 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.
5. In view of the law laid down in State of Punjab v. Shiv Ram (2005) 7 SCC 1 all these appeals are allowed. The judgments and decrees under appeals are set aside. All the suits filed by the plaintiff-respondents are dismissed. There will be no order as to costs throughout. However, any amount paid by the appellant State to the plaintiff-decree-holders shall not be liable to be refunded by way of restitution.