Topic: State of Haryana v/s Smt. Santra

State of Haryana & Ors vs Smt. Santra
Bench: S.S.Ahmad, D.P.Wadhwa - Supreme Court of India - DATE OF JUDGMENT: 24/04/2000

JUDGMENT:
S. SAGHIR AHMAD, J.    Leave    granted. Medical Negligence plays its game in strange ways. Sometimes it plays with life; sometimes it gifts an "Unwanted Child" as in the    instant case where the respondent, a poor labourer woman,    who already had many children and had opted    for sterilisation, developed pregnancy and ultimately gave birth to a female child in spite of sterilisation operation which, obviously, had    failed. Smt.    Santra, the victim of    the medical negligence, filed a suit for recovery of Rs.2 lakhs as damages for medical negligence, which was decreed for a sum of Rs.54,000/- with interest at the rate of 12 per cent per annum from the date of institution of the suit till the payment    of the decretal amount. Two appeals    were filed against this decree in the court of District Judge, Gurgaon, which were disposed of by Addl.    District Judge, Gurgaon, by a common judgment dated 10.5.1999. Both the appeals -    one filed by the State of Haryana and the other by Smt. Santra were dismissed. The second appeal filed by the State of Haryana was summarily dismissed by the Punjab & Haryana High Court on 3.8.1999. It is in these circumstances that    the present Special Leave Petition has been filed in this court. "Sterilisation    Scheme", admittedly, was launched by    the Haryana    Govt.    and taking advantage of that scheme,    Smt. Santra    approached the Chief Medical Officer, Gurgaon,    for her sterilisation in 1988. The sterilisation operation was performed on her and a certificate to that effect was    also issued    to her    on 4.2.1988 under the    signatures of    the Medical    Officer, General Hospital, Gurgaon. Smt. Santra was assured that full, complete and successful sterilisation operation had    been performed upon her and she would    not conceive a child in future. But despite the operation, she conceived. When she contacted the Chief Medical Officer and other Doctors    of the General Hospital, Gurgaon, she    was informed that she was not pregnant. Two months later    when the pregnancy    became apparent, she again approached those Doctors    who then told her that her sterilisation operation was not successful.    Dr. Sushil Kumar Goyal, who    was examined as DW-2, stated that the operation related only to the right Fallopian Tube and the left Fallopian Tube was not touched, which indicates that `complete sterlisation' operation was not done. She requested for an abortion, but was advised not to go in for abortion as the same would be dangerous to her life.    She ultimtely gave birth to a female child.    Smt.    Santra    already had seven children and    the birth of a new child put her to unnecessary burden of rearing    up the child as also all the expenses involved in the maintenance of that child, including the expenses towards    her clothes and education.    It was in these circumstances that the suit was filed by Smt.    Santra which was contested    by the State, who, besides taking up    the technical pleas relating to non-maintainability of the suit on various grounds, denied in the written statement    that there was any negligence on the part of the Medical Officer of the General Hospital, Gurgaon. It was contended by    the defendants that the sterlisation operation performed    upon Smt. Santra on 4.2.1988 was done carefully and successfully and there was no negligence on the part of the Doctor    who performed that operation. It was further pleaded that Smt. Santra    had herself put her thumb impression    on a paper containing a recital    that in case the operation was    not successful, she would not claim any damages. It was pleaded that she was estopped from raising the plea of negligence or from claiming    damages    for an    unsuccessful sterilisation operation from the State which, it was further pleaded, was not liable even vicariously for any lapse on the part of the Doctor    who performed that operation.    The trial court as also the lower appellate court both    recorded concurrent findings of fact that the sterlisation operation performed upon Smt. Santra was not `complete' as in that operation only the right Fallopian Tube was operated upon while    the left Tube was    left untouched. The courts were of    the opinion    that this exhibited negligence on the part of    the Medical    Officer who performed the operation. Smt. Santra, in spite of the unsuccessful operation, was informed    that sterlisation operation was successful and that she would not conceive any child in future.    The plea of estoppel raised by the    defendants was also rejected.    The trial court    has recorded the    following findings on    the question    of negligence:- "The birth of the female child by plaintiff Smt. Santra after operation    for sterilization is    not disputed and the case of the defts is that there was no negligence and carelessness on the part of the deft. but on going through    the documents placed on the file as well as testimony of PWs that the medical officer who conducted the operation has    threw the care and caution to the winds    and focussed attention to    perform as many as operations as possible to build record and earn publicity. It is in such settling that a poor lady obsessed to plan his family,    was negligently operated upon and treated and left in the larch to suffer agony and burden which he was made to believe was avoidable. Therefore, the act of the DW 2 Dr.    Sushil Kumar shows that he did not perform his duty to the best of    his ability    and with due care and caution and due to the above said act, the plaintiff has to suffer mental pain and agony and burden of    financial liability." The findings of    the Lower Appellate Court on this question are as under:-    "In the instant case, admittedly, plaintiff Santra was operated for right tube and not for left tube.    Dr. Sushil Kumar Goel while appearing as DW2 has categorically stated so. He has specifically stated that Santra,    plaintiff was    not traceable. I am of the considered opinion that if Santra, plaintiff was not operated for left side in that event    the doctor    should not have issued certificate of sterilization to her. The doctors who operated plaintiff Santra should have advised her to come for second time for her operation of left side. The plaintiff has placed family sterilization case card Ex.P2 on the file. The defendant State    has admitted in its written statement that she was successfully operated on 4.2.88 in General Hospital, Gurgaon.    When admittedly Santra, plaintiff was not operated, as discussed above,    for her left    tube in that    event issuance    of certificate to    her of her sterilization amounts gross negligence." The High Court, as pointed out above, summarily dismissed the second appeal. Learned counsel appearing on behalf    of the    State    of Haryana has    contended that    the negligence of    the Medical    Officer    in performing    the unsuccessful sterlisation operation upon Smt.    Santra would not bind the State Govt. and the State Govt.    would not be liable    vicariously for any damages to Smt. Santra. It was also claimed that the expenses awarded for rearing up    the child and for her maintenance could not have been legally decreed as there was no element of "tort" involved in it nor had Smt. Santra suffered any loss which could    be compensated in    terms    of money. Negligence is a `tort'. Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care    and skill. This is what is known as `implied undertaking' by a member of the    medical profession that he    would use a fair, reasonable and    competent degree of skill. In Bolam    vs. Friern    Hospital Management Committee (1957) 2 All ER    118, McNair,    J. summed up the law as under : "The test is    the standard of the ordinary skilled    man exercising    and professing to    have that special skill. A man need    not possess    the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the    case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper    standards, and    if he conforms with one of these proper    standards, then he is not negligent." This decision has since been approved by the House of Lords in Whitehouse vs. Jordon (1981) 1 All ER 267 (HL);    Maynard vs.    West Midlands Regional Health Authority (1985) 1 All ER 635 (HL); and Sidway vs.    Bathlem Royal Hospital (1985) 1 All ER    643 (HL).    In two decisions rendered by this Court, namely, Dr. Laxman    Balakrishna Joshi vs.    Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128 and A.S. Mittal vs. State of    U.P. AIR 1989 SC 1570, it was laid down that when a Doctor is consulted by a patient, the former, namely, the Doctor owes to his patient certain duties which are (a) a duty of    care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment.    A breach of any of    the above duties may give a cause of action    for negligence and the patient may on that basis recover damages from his Doctor. In a recent decision in Poonam Verma    vs. Ashwin    Patel & Ors. (1996) 4 SCC 332 = AIR 1996 SC    2111 where the question of medical negligence was considered in the context of treatment of a patient, it was observed as under : "40.    Negligence has many manifestations - it    may be active negligence, collateral negligence,    comparative negligence, concurrent    negligence, continued    negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or Negligence    per se, which is defined in    Black's    Law Dictionary as under : Negligence per se: Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or    proof    as to    the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because    it is so palpably opposed to the dictates of common prudence that    it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general    rule,    the violation of a public duty, enjoined by law for the    protection of    person    or property,    so constitutes." It was also observed that where a person is guilty of Negligence per se, no further proof is needed. In M/s Spring Meadows Hospital & Anr. vs. Harjol Ahluwalia through    K.S.    Ahluwalia & Anr.JT 1998(2) SC 620, it    was observed as under : "In the case in hand we    are dealing with a problem which centres round the medical ethics and as such it may    be appropriate to    notice    the broad responsibilities of such organisations who in the garb of doing service    to the humanity have continued commercial activities and have been mercilessly extracting money    from helpless patients and their family members and yet do    not provide    the necessary services. The influence exerted by a doctor    is unique. The relationship between the doctor    and the patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in    a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics    to ensure that the superiority of the doctor is not abused    in any manner.    It is a great mistake to think    that doctors    and hospitals are easy targets for the dissatisfied patient. It is indeed very difficult to raise an action of negligence. Not only there are practical difficulties in linking    the injury sustained with the medical treatment but also it is still more difficult to establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer    expense of bringing a legal action and the denial of legal aid to    all but the poorest operate to limit medical litigation in this country." It was further observed as under :    "In recent days there has been    increasing pressure on hospital facilities, falling standard of professional competence and in addition to all,    the ever increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence. That apart there has been a growing awareness in the public mind to bring the negligence of    such professional doctors to light.    Very often in a claim for compensation arising out    of medical negligence a plea is taken that it is a case of bona    fide mistake    which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In    the former case a court can    accept    that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of    the reasonable skill of a competent doctor." In this judgment, reliance was placed on the decision of the House of Lords in Whitehouse vs.    Jordan & Anr.    (1981) 1 ALL ER 267.    Lord Fraser,    while    reversing the    judgment of Lord Denning (sitting in the Court of Appeal), observed as under :    "The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one    that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having,    and acting with ordinary    care, then it    is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence." The principles stated above have to be kept in view    while deciding the issues involved in    the present    case.    The facts which are not disputed are    that Smt. Santra,    respondent, had undergone a Sterilisation Operation at the General Hospital, Gurgaon, as she already had seven children and wanted to take advantage of    the scheme    of Sterilisation launched by the State Govt.    of Haryana. She underwent the Sterlisation Operation and    she was issued a certificate that her operation was successful. She was assured that she would not conceive    a child in future.    But, as the luck would have it, she conceived    and ultimately gave birth to a female child. The    explanation offered    by the officers of the appellant-State who    were defendants in    the suit, was that at the time    of Sterilisation Operation, only the right Fallopian Tube    was operated upon    and the left    Fallopian Tube was    left untouched. This explanation    was rejected by    the courts below and they were of the opinion, and rightly so,    that Smt. Santra had gone to the Hospital for complete and total Sterlisation and not for partial operation. The certificate issued    to her, admittedly, was also in respect of total Sterlisation Operation. Family Planning is    a National Programme. It    is being implemented through the agency of various    Govt. Hospitals and Health Centres and at    some places    through the agency of Red Cross. In order that the National Programme may be successfully completed and    the purpose    sought    may bear fruit, every body involved in    the implementation    of the Programme has to perform his duty in all earnestness and dedication.    The Govt. at the Centre as also at the State level is aware that India is the second most-populous country    in the world and in order that it enters    into an era of prosperity, progress and complete self-dependence, it is necessary that the growth of    the population is    arrested. It is with this end in view    that family    planning programme has been launched by    the Government which has not only endeavoured to bring about an awakening about the utility of family planning among    the masses    but has also attempted to motivate people to    take recourse to family planning through any of the known devices or sterilisation operation. The Programme is being implemented through its own agency by adopting various measures, including the popularisation of contraceptives and operation for    sterilising the male or female. The implementation    of the    Programme is thus directly in    the hands of the Govt. officers, including Medical Officers involved in the family planning programmes.    The Medical Officers entrusted with the implementation of    the Family Planning Programme cannot, by their negligent acts in    not performing the complete sterlisation operation, sabotage the scheme    of national importance. The people of the country who cooperate    by offering themselves voluntarily    for sterilisation reasonably expect that after undergoing    the operation they would be able to avoid further pregnancy and consequent birth of additional child.    If Smt.    Santra, in these circumstances, had offered herself for complete Sterilisation,    both the Fallopian Tubes should have    been operated upon.    The Doctor who performed the opeation acted in a most negligent manner as the possibility of conception by Smt. Santra was not completely ruled out as her    left Fallopian Tube was not touched. Smt.    Santra did conceive and gave birth to an unwanted child. Who has to bear    the expenses in bringing    up the    "unwanted child", is    the question which    is to be decided by us in this    case.    The amount    of Rs.54,000/- which has been decreed by the courts below represents the amount of expenses which Smt. Santra would have to incur at the rate of Rs.3,000/- per annum in bringing up the child upto the age of puberty.    The domestic legal scenario on this question appears to be silent, except one or    two stray decisions of the High Courts, to which a reference shall be made presently. Before coming to those cases,    let us have a look around the Globe. In Halsbury's Laws of England, Fourth Edition (Re- issue) Vol. 12(1), while considering the question of "failed sterilisation", it is stated in para 896 as under : "Failed sterilisation. Where    the defendant's negligent    performance of a sterilisation operation results in the birth of a healthy child,    public    policy    does not prevent the parents    from recovering damages for the unwanted birth, even though    the child may in    fact be wanted by the time of    its birth. Damages    are recoverable for personal injuries    during    the period    leading up to the delivery of the child, and for the economic loss    involved in the expense of    losing    paid occupation and    the obligation of having to pay for    the upkeep    and care of an unwanted child.    Damages may include loss of earnings for the mother, maintaining the child (taking    into account child benefit), and pain and suffering to the    mother." In Udale v. Bloomsbury    Area Health Authority [1983] 2 All ER 522, a woman who had approached Hospital Authorities for sterilisation was awarded damages not only for    pain and suffering on account of pregnancy which she developed as a result of failed sterilisation, but also damages for the disturbance of the family finances, including the    cost of layette and increased accommodation for the family. The Court, however, did not allow damages for future cost of the child's upbringing upto the age of 16 years,    on a consideration of public policy. The Court held that the public policy required that the child should    not learn that the Court had declared its life to be a mistake. The Court further held that the joy of having a child and the pleasure derived in rearing up that child have to be set off against the cost in upbringing the child.    The doctrine of public policy, however, was not followed    in Emeh v. Kensington and Chelsea and Westminster Area Health Authority [1984]    3 All ER 1044 = [1985] QB 1012 and it was held    that there was no rule of public policy which precluded recovery of damages for pain and suffering for maintaining the child. So also, in Thake v. Maurice [1984] 2 All ER 513 = [1986] QB 644, in which a vasectomy was performed on the husband who was also    told, subsequent to the operation,    that contraceptive precautions were not necessary. Still, a child was born to him and damages for the child's upkeep upto the seventeenth birthday were awarded, though for an agreed    sum. The Court of Appeal in    its judgment since reported in [1986] 1 All ER 497 = [1986] QB 644, held    that the joy of having a child could be set off    against    the trouble    and care in the upbringing of the child, but    not against    pre-natal pain and distress, for which damages    had to be awarded. In Benarr v.    Kettering Health Authority (1988) 138 NLJ 179, which related to a negligently performed vasectomy operation, damages were awarded for    the future private education of the child. In Allen v.    Bloomsbury Health    Authority [1993] 1 All ER 651, damages were awarded in the    case of negligence in the    termination of    the pregnancy and    it was held that these damages will include general    damages for pain and discomfort associated with the pregnancy and birth as also damages for economic loss being the financial    expenses for the unwanted child in order to feed, clothe and care for and possibility to    educate    the child till he becomes an adult. On these considerations, a general    and    special    damages including the cost    of maintaining the child until the age of 18 were allowed.    The judgment was followed in two other cases, namely, Crouchman v. Burke (1997) 40 BMLR 163 and Robinson v. Salford Health Authority [1992] 3 Med LR 270. In a    case in Scotland, namely,    Allan v. Greater Glasgow Health Board (1993)    1998 SLT 580, public policy considerations were rejected and cost of rearing the child was also awarded. In three cases in the United States of America, namely, Szekeres v. Robinson (1986)    715 P 2d 1076;    Johnson v. University Hospitals of Cleveland (1989) 540 NE 2d 1370 (Ohio) and Public Health Trust v. Brown (1980) 388 So 2d 1084, damages were    not allowed for rearing up the child. In the first of these three cases, the Supreme Court of Nevada refused to award damages    for the birth of an unwanted child even though    the birth was partially attributable to the negligent conduct of the doctor attempting to prevent the child birth. In    the second case, it was held that the parents could recover only the damages for the cost of the pregnancy, but not the expense    of rearing an unwanted child. The basis of    the judgment appears to be the public policy that the birth of a normal,    healthy child cannot be treated to be an injury to the parents. In the third case in which the claim    was preferred by a woman    alleging that the sterilisation operation performed upon her was negligently    done which resulted in pregnancy for a child which she never wanted, the Supreme Court of Florida was of the opinion that "it was a matter of universally-shared emotion and sentiment    that the tangible but all-important, incalculable but invaluable `benefits' of    parenthood far    outweigh any of the    mere monetary burdens involved." However, in another case arising in the    United States, the Supreme Court of New Mexico in Lovelace Medical Center v. Mendez (1991) 805 P 2d    603 allowed    damages in the form of reasonable expenses to raise the child to    majority as it was of the opinion that    the prime motivation for sterilisation was to conserve family resources and    since it was a failed    sterilisation case, attributable to the negligent failure of Lovelace Medical Center,    the petitioner was entitled to damages. In a South African case in Administrator, Natal v.    Edouard 1990 (3) SA 581, damages were awarded for the cost of maintaining    the child in a case where sterilisation of the wife did not succeed. It was found in that case that the wife    had submitted for sterilisation for socio-economic reasons    and in that situation the father of the child was held entitled to recover the cost likely to be incurred for    maintaining the child. In a Newzealand case in L v. M [1979] 2 NZLR 519, the court of appeal refused to allow cost of rearing a child.    In a    case from Australia, namely, CES    v. Superclinics (Australia) Pty. Ltd. (1995) 38 NSWLR 47, the expenses involved in rearing the child were not allowed. In this case, a woman who was pregnant, claimed    damages for loss of the opportunity to terminate the pregnancy which Doctors    had failed to diagnose. The claim was dismissed by the trial judge on the ground that abortion would have been unlawful. Meagher JA discounted the claim altogether on the ground of public policy, but the other Judge, Kirby A-CJ was of the opinion that the woman was entitled to damages    both for the pain    and suffering which she had to    undergo on account    of pregnancy as also for the birth and the cost of rearing    the child. But he thought that it would be better to offset against the claim of damages, the value of    the benefits which would be derived from the birth and rearing of the    child.    He was of the opinion that the matter of setting    off of nett    benefits against the    nett injury incurred would depend upon the facts of each case. In    the result,    therefore, he agreed with Priestley JA, that    the ordinary expenses of rearing the child should be excluded. Priestley JA was of the view that, "The point in the present case is that the plaintiff chose to keep her    child.    The anguish    of having to make the choice is part of the damage caused    by the    negligent breach of duty, but the    fact remains, however, compelling the psychological pressure on the plaintiff    may have been    to keep the    child,    the opportunity of choice was in my opinion real and the choice made was voluntary. It was this choice which was the cause, in my opinion, of the subsequent cost of rearing the child." From the above, it would be seen that the courts in    the different countries are not unanimous in allowing the claim for damages for rearing up the unwanted child born out of a failed    sterilisation operation. In some cases, the courts refused    to allow this claim on the ground of public policy, while in many    other,    the claim was    offset    against    the benefits derived from having a child and the pleasure in rearing    up that child. In    many other cases, if    the sterlisation was undergone on account of social and economic reasons, particularly in a situation where the claimant had already    had many children, the court allowed the claim    for rearing    up the child. In State of    M.P. & Ors.    vs. Asharam, 1997    Accident Claim Journal 1224, the High Court allowed    the damges on account of medical negligence in    the performance of    a family planning operation on    account of which a daughter was born after fifteen months of the    date of operation.    No other decision of any High Court has come to our    notice    where damages were awarded on    account of failed sterilisation operation. Ours is a developing country    where majority of the people live below the poverty line.    On account of the ever-increasing population,    the country    is almost at the saturation point so far as    its resources are    concerned. The principles on the basis of which damages    have not been allowed on account of failed sterilisation operation in other countries either on account of public policy or on account of pleasure in having a child being offset against    the claim for damages cannot be strictly applied to the Indian conditions so far as    poor families are concerned. The public policy here professed by the Government is to control the population and that is why various    programmes have been launched to implement    the state-sponsored    family    planning programmes and policies. Damages for the birth of an unwanted child may not be of any value for those who    are already living in affluent conditions but those who live below the poverty line or who belong    to the    labour class who earn their livelihood on daily basis by taking up the job of an ordinary labour, cannot be denied the claim for damages on account of medical negligence. It is, no doubt, true that the    parents    are under an obligation to maintain their minor children.    This is a moral, apart from a statutory, liability in view of the provisions contained in Section 125 of the Code of Criminal Procedure. It is also a statutory liability on account of Section    20 of the Hindu Adoptions and Maintenance Act which provides as under:- "20. (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate children and his or    her aged or infirm parents. (2) A legitimate or    illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. (3) The obligation of a person    to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried    daughter, as the case may be, is unable to maintain himself or herself out of his or her own earning or property. Explanation.- In this section "parent" includes a childless step-mother." "Maintenance" would obviously include provision for food, clothing, residence, education of the    children and medical attendance or treatment.    The obligation to maintain besides being statutory in nature is also personal    in the sense that it arises from the    very existence of the relationship between parent and the child. The obligation is absolute in terms and does not depend on the means of the father or the mother. Section 22 of    the Act sets out    the principles for computing the amount of maintenance. Sub-section (2) of Section 23 provides that in determining the amount of maintenance, to be    awarded to children, wife    or aged or infirm parents, regard shall be had to    the position    and status of    the parties;    the reasonable wants of the claimant; if the claimant    was living    separately, whether the claimant was justified in doing so; the value of the claimant's property and    any income    derived from such property, or from the claimant's own earnings or from any other source and the number of persons    entitled to maintenance under the Act.    But we    are not concerned    with these factors in the instant case. A reference to Section    23 of    the Hindu Adoptions    and Maintenance Act has been made only to indicate that a Hindu father    or a Hindu mother is under a statutory obligation to provide    maintenace to their children.    Similarly, under the Mohammedan Law, a father is bound to maintain his sons until they have attained the age of puberty.    He is also bound to maintain his daughters until    they are married. [See: Mulla's    Principles of Mohammedan Law (19th Edn.) Page 300]. But the statutory liability to maintain the children would not operate as a bar in claiming damages on account of tort of medical negligence in not carrying out the sterilisation operation with    due care and responsibility. The    two situations are    based    on two different principles.    The statutory as well as personal liability of the parents to maintain their children arises on account of the principles that if a person has begotten a child, he is bound to maintain that child. Claim for damages, on the contrary, is based on the principle that if a person has committed civil wrong,    he must pay compensation by way of damages to    the person    wronged. Under every system of law governing    the patriarchal society, father being a natural guardian of the child,    is under moral liability to look after and maintain the child till he attains adulthood. Having regard to    the above discussion, we are positively of the view that in a country    where    the population is increasing by the tick of every second on the clock and the Government had taken up the family planning as an important    programme for    the implementation    of which it had created mass awakening    for the use of various    devices including sterilisation operation, the    doctor as also the State must be    held responsible in    damages if the sterilisation operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family,    creating additional economic burden on the person who had chosen to be operated upon for sterilisation.    The contention as    to the vicarious liability of the State    for the negligence of its officers in performing    the sterilisation operation cannot be accepted in view of    the law settled by this Court in N. Nagendra Rao & Co.    vs. State of A.P., AIR 1994 SC 2663 = (1994) 6 SCC 205; Common Cause, A Regd.    Society vs. Union of India & Ors. (1999) 6 SCC 667 = AIR 1999 SC 2979 and Achutrao Haribhau Khodwa & Ors. vs. State of Maharashtra & Ors.    1996 ACJ 505.    The last case, which related to the fallout of a sterilisation operation, deals, like the two previous cases, with    the question of vicarious liability of the State on account of medical    negligence of a doctor in a Govt. hospital.    The theory of sovereign immunity was rejected. Smt. Santra, as already    stated above, was a poor lady who already had seven children. She    was already under considerable monetary burden.    The unwanted child (girl) born to her has created additional burden for her on account of the negligence of the doctor who performed sterilisation operation upon    her and, therefore, she is clearly entitled to    claim    full damages    from the State Govt. to enable her to bring up the child at least till she attains puberty. Having regard to the above facts, we find no merit in this appeal which is dismissed but without any order as to costs.