- (1.) TO question correctness of the award dated 11.02.2011 passed by the Permanent Lok Adalat, Jodhpur in Public Utility Case No.5/2007, this petition for writ is preferred.
(2.) IN brief, facts of the case are that the respondent- applicant undergone a surgery for sterilization on 12.05.2006 at Community Health Center, Balesar. In spite of sterilization, the applicant conceived and delivered a girl child on 14.02.2007. Being suffered with mental shock and economic loss caused as a consequence of giving birth to a girl child despite sterilization, she claimed a compensation in a tune of Rs.2,50,000/- from the present petitioners. On being failed to get any relief by the respondents at their own, she preferred an application as per the provisions of Section 22(B) of the Legal Services Authority Act, 1987. The Permanent Lok Adalat after considering contents of the application and the reply thereto arrived at the conclusion that though there was no evidence about negligence on part of medical practitioner, but the birth of child after sterilization itself is sufficient to conclude that the medical practitioner was negligent. Accordingly, a compensation in a tune of Rs.85,000/- was awarded with interest at the rate of 9% per annum. The cost of litigation in a tune of Rs.1100/- too was awarded. It is submitted by learned counsel for the petitioner that the Permanent Lok Adalat itself observed that the applicant-respondent failed to establish negligence on the part of medical practitioner but awarded compensation, that could have not been given without arriving at a definite conclusion about negligence on the part of medical practitioner with the aid of cogent evidence. To substantiate the contention, reliance is placed by learned counsel for the petitioner upon a judgment of Hon'ble Supreme Court in State of Punjab Vs. Shiv Ram & Ors. reported in 2005 (2) WLC (SC) Civil 500. In the case aforesaid, Hon'ble Apex Court arrived at the conclusion that in spite of operation having been successfully performed and without any negligence on the part of Surgeon, the sterilized woman can become pregnant due to natural causes. Compensation in such event can be granted only after arriving at a conclusion that the pregnancy occurred due to some negligence on the part of the surgeon.
(3.) WHILE opposing the petition for writ and defending the order passed by learned Permanent Lok Adalat, it is submitted by learned counsel for the respondent that the fact of conceiving pregnancy after sterilization itself is sufficient to presume negligence on the part of the surgeon. He has substantiated his argument with the aid of the judgment of Hon'ble Supreme Court in State of Haryana & Ors. Vs. Santra (Smt.) reported in (2000) 5 SCC 182. He has also placed reliance upon a Division Bench judgment of this court in D.B. Civil Special Appeal (Writ) No.134/2002 (Mangilal Tavri Vs. State of Rajasthan & Ors.).;