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Welcome move by BCI to make mediation compulsory

Dual Benefit: BCI’s decision will encourage foreign investment in India. The active encouragement to mediation given by Justice Sharad Arvind Bobde, CJI, Justice Suryakant, judge, Supreme Court and Justice A.K. Sikri will be remembered.

Tarun Nangia

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Justice Suryakant, judge, Supreme Court, with Justice A.K. Sikri, who served as judge, Supreme Court, at Chandigarh Judicial Academy.

In a news that comes as a breath of fresh air for the legal sector in India, the Bar Council of India (BCI) has made mediation a compulsory subject. All universities, centers of legal education have been directed to incorporate medication as a compulsory paper from the academic session 2020-21.

BCI has made mediation subject both for 3 year and 5 year integrated courses of law, both honours and non honours. The students would have to be provided practical skills apart from theory by the colleges and learning centers, says the directions issued by Srimanto Sen, Secretary, Bar Council of India. 

Justice Suryakant, even while serving as a judge at the Punjab & Haryana High Court, had encouraged the practice of mediation to reduce pendency. He also gave his wholehearted support to programs and gathering that encouraged mediation.

Justice Arjan Kumar Sikri, the then sitting Judge of the Supreme Court had told me that over 90 per cent of cases in America are settled through mediation. This ensures that the courts there have low pendency of matters. Plus unlike in litigation, whatever happens in mediation is confidential and helps maintain relationships. Commercial disputes are best cases for mediation.

Over the years I have observed that even the best of the law schools teach how to argue better or pin the other side down on an issue. Now that is that not the circumstances demand, today, industry, individuals, disputants are expecting a solution oriented approach, rather than a win lose approach. The definition of justice stands fairly blurred, pertaining to matters which are civil, commercial or any other matter which are not criminal in nature.

Parties are slowly adapting European and American way of dispute resolution whereby giving more emphasis to conflict resolution approach through existing Alternative Dispute Resolution (ADR) mechanisms including arbitration, mediation and conciliation possibly keeping this in mind and realising the importance of conflict resolution approach the BCI has made it mandatory as a part of the course curriculum for three years and five years LL.B programmes across the nation, which is a good step towards positioning India as a global leader and hub for mediation and conciliation. Given the fact that India is among the 50 plus nations which has signed the Singapore Convention on mediation, this is not just with this dispute resolution domestically but also will allow foreign investors to have Indian lawyers and counsels will be trained in the process of conflict resolution by undergoing the mandatory mediation training and practice curriculum across various law schools in the country.  

Various media reports and statistics have been repeatedly suggesting that global investors used to stay away from investing in India out of the fear of backlog in the courts and time taken for hearing the matter and closure of the same in India. To gather data around dispute resolution in India, Legally Speaking along with Gujarat National Law University (GNLU), Centre for Mediation and Conciliation (CMC)and Bridge policy think tank are conducting a detailed survey which will give an idea of what disputants think before approaching a particular dispute and how the wish it to be addressed for timely and effective resolution.

Recommended books for Mediation by Bar Council of India

The BCI has recommended books like Mediation Practice & Law: The Path to Successful Dispute Resolution by Shriram Panchu; Wishbone, Funnybone and a Backbone by Aunroop Omkar and Kritika Krishnamurthy; Mediation Training Manual of India by Mediation and Conciliation Project Committee, Supreme Court of India; Getting to Yes: How to Negotiate Agreement without giving In by Roger Fisher and Willian Uryan and Bruce Patton; An Asian Perspective on Mediation by Joel Lee and Hwee Hwee Tech; The Mediation Process: Pratical Strategies for Resolving Conflict by Christopher Moore and Introduction to Non Violence by Ramin Jahanbegloo on the subject of mediation.

Authors of recommended books by Bar Council of India say

Shriram Panchu, whose book has been recommended by BCI, said, “The growing importance of mediation in India as an effective method of dispute resolution has now been recognized by the BCI which has directed all the law schools in the country to introduce a 45 hour mediation component in the 3 year and 5 year law programmes. Mediation is a novel idea of dispute resolution, which is cost effective, time saving, consensual, party-centric and confidential. Introduced in 2005 in India’s court system, it has met with substantial success and is very much a part of official legal system as Court Annexed mediation. Now it is moving to be used in private professional mediation practice in a wide range of personal, corporate, commercial and civil litigation.”

While Anuroop Omkar, whose book also have been recommended by BCI said, “Mediation in dispute resolution is Aaatmanirbharta. As a mediator my mantra is keep trying, keep trying and be resilient. With closed, clogged courts and increasing disputes in these times, disputants, Bar & Bench have finally acknowledged the importance of mediation as a mainstream dispute resolution tool. My Years of advocacy, capacity building and awareness efforts have finally borne fruits”

“When I first went for my mediation training and internship to the USA and then to Europe, my worldview towards dispute resolution took a 360 degree turn. Large number of the contractual and debt recovery cases that come to my firm are resolved through mediation. M&A and private equity deals are curated not just for documentation and due diligence but collaborative and objective negotiations and if required, conflict coaching. Now the future lawyers of India can view their profession through a new lens. I hope they benefit from the practice of mediation as much as I did.  A new era of legal practice is on the horizon,” said Anuroop.

“Disputants are presently wrongly informed that mediation is an unenforceable compromise. The move is going to finally bring a culture change in the next generation of lawyers, jurists who will advice disputants that opting for facilitated negotiations through mediation before escalating to arbitration or litigation is the obvious first practical step. Taking inspiration from a quote Jyotirao Phule, if a mediator is trained, only a mediator is created. But when a law student is trained, the entire ecosystem of future dispute resolution and social consensus building is educated. This is going to ensure that not just lawyers or judges but future bureaucrats, political leaders, policy and developing professionals, representatives of India at international organisations, social workers and influencers are equipped to use mediation as a dispute resolution of first resort,” said Kritika Krishnamurthy, Co-Author of Wishbone, Funnybone and a Backbone.   

In times of pandemic and Covid-19, when physical hearings in courts are suspended and norms of social distancing are required to be maintained, Mediation as a tool for conflict resolution has come to the fore. Litigants have been drawn towards Mediation and have begun to realize it’s immense benefits. Mediation and Conciliation has been seen to lead to resolutions without undergoing arduous trials and moreover resolutions/solutions are arrived at, in a relatively lesser time. The Hon’ble Chief Justice of India is also keen that the art of Mediation is taught to LL.B students as it will go a long way in reducing the backlog and flood of cases. With litigants, students and Lawyers being more aware and keen about Mediation, this will be looked upon more as an option instead of filingsuits/casesstraightaway, says the BCI order.

With the introduction of Section 89 in C.P.C. alternative dispute resolution was sought to be invoked and used more, and courts have often started referring many matters under this provision. However, what is required is that students of LL.B and Lawyers are also trained in the art of Mediation and Conciliation to understand it’s true benefits and reap it’s true fruits which will pave the way for a great reform in the Indian Legal System, which will lead to reduction of burden on courts and quick and efficacious resolution being agreed upon by parties in disputes having varied points of conflict

This will lead to blending judicial and non-judicial dispute resolution mechanism and bring mediation to the centre of the Indian Judicial System. The long-drawn process of litigation, the costs incurred by both parties for the same have made Mediation an important aspect of the Judicial system to ensure swifter and speedier justice.

The purpose of Mediation and Conciliation is to provide amicable, peaceful and mutual settlement between parties without intervention of the court. In countries all round the world, especially the developed few, most of the cases (over 90 per cent) are settled out of court. The case/ dispute between parties can and should go to trial only when there is a failure to reach a resolution.

The teachers for such programs must be trained adequately. The qualification of teachers required to teach Mediation with Conciliation shall be decided by the Bar Council of India in consultation with any authority/institution as it may deem fit including U.G.C. For the moment, applications may be invited from the lawyers having at least 10 years of practice with theoretical knowledge and practical experience in these subjects, inclusive of trained Mediators/Conciliators, and from persons having 2- years LL.M Degrees in these subjects. Trainings will also be introduced by the Bar Council of India, in the near future and subsequently, such certificate/ Diploma holders would be preferred for being appointed as Teachers for teaching the subject of Mediation and Conciliation.

The Legal Education Committee of the Bar Council of India, while considering the letter of Hon’ble Chief Justice of India, Shri S.A. Bobde wherein it was desired that Mediation be a compulsory subject and BCI should take necessary steps in this regard, had resolved that Mediation should become a compulsory subject, which would enable students passing LL.B to become experts and proficient to enable parties to reach upon a successful conclusion.

Tarun Nangia is host & producer of Legally Speaking.

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Legally Speaking

Allahabad High Court Quashes POSCO Case: If Husband/Accused Is Convicted Then Victim/Wife’s Future Would Be Ruined

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Allahabad High Court Quashes POSCO Case: If Husband/Accused Is Convicted Then Victim/Wife’s Future Would Be Ruined

The Allahabad High Court recently in the case Rajiv Kumar v. State of U.P. And 2 Others observed and has recently quashed an FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife (who was a minor at the time of the incident) married the accused/ applicant out of her own sweet will and is living a happy married life with him.
The bench comprising of Justice Manju Rani Chauhan observed that to punish punish the offenders for a crime, involved in the present case, is in the interest of society, but, at the same time, the husband is taking care of his wife and in case, the husband is sentenced and convicted for societal interest, then, the wife will be in great trouble and it would ruin their future. Thus, it is also in the interest of society to settle and resettle the family for their welfare, the bench quashed the rape-POCSO case against the accused.

Facts of the Case:
The Maternal Uncle of the Victim lodged an FIR against the accused under Sections 363, 366, and Section 376 of the Indian Penal Code, 1860and Section 3/4 of the POCSO Act, alleging that the accused had raped the victim (then a 17-year-old minor).
Further, the accused moved the instant Section 482 CrPC petition seeking to quash the instant FIR. Also, the victim appeared before the Court and had submitted that her maternal uncle had lodged the FIR in an attempt to ruin her married life.
It was further stated by her that she has entered into a compromise with the accused and has married him out of her free will, and consent, and without any external pressure, coercion, or threat of any kind. Before the court, it was also submitted that that out of their wedlock, they are blessed with a male child, who is presently four and half years old and as per her date of birth and at the time of marriage she was nearly 17 and half years old.
It was submitted by the Applicant-Accused that on account of the compromise entered into between the parties concerned, all disputes between them have come to an end, and therefore, further proceedings are liable to be quashed in the present case.

Observations Made By Court:
In the present case, the court noted that though the offence under the relevant sections 363, 366 and 376 of IPC and Sections 3/4 of POCSO Act are not compoundable under Section 320 Cr.P.C, however, adding to it, the court stated that the power of the High Court under Section 482 Cr.P.C is not inhibited by the provisions of Section 320 Cr.P.C and the criminal proceedings as well as the FIR can be quashed by exercising inherent powers under provision of Section 482 Cr.P.C, if warranted in given facts and circumstances of the case for ends of justice or to prevent abuse of the process of any Court, even including the cases which are not compoundable where parties have settled the matter between themselves.
The court while considering the facts and circumstances of the case, and also the submissions made by the counsel for the parties, the court came to the considered opinion that the victim herself, has stated before this Court that out of her own sweet will, she has married the applicant and is living a happy married life and out of their wedlock, the couple are blessed with a male child. However, no useful purpose shall be served by prolonging the proceedings of the criminal case as the parties have already settled their disputes.
Accordingly, the court quashed the charge sheet and the cognizance order as well as the entire proceedings of the Criminal Case were hereby quashed. Thus, the application was allowed.

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SC likely to hear next month pleas related to Article 370

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SC to hear Manoj Tiwari’s plea on firecracker

A Supreme Court constitution bench is expected to hear a slew of petitions related to Article 370 of the Constitution, which granted Jammu and Kashmir (J&K) semi-autonomous status before it was repealed in August 2019. Chief Justice of India (CJI) Uday Umesh Lalit said on Friday that the petitions will be heard after the Dussehra holiday.

When senior advocate Prashanth Sen asked the CJI to list the matter, Justice Lalit responded, “We will certainly list that…it will be listed after Dussehra break.” From October 3 to 10, the court will be closed for Dussehra.

The petitions were last heard in March 2020, when a five-judge panel declined to refer the case to a larger panel. The reference was requested because previous court decisions on the subject were in conflict with one another. This contention was rejected by the bench.

At the time, the bench was aware of an older batch of petitions pending in the Supreme Court challenging the constitutionality of Articles 370 and 35A, which granted J&K special status. It was stated that all issues concerning Article 370 should preferably be heard together.

National Conference legislators, former bureaucrats, and some organisations are among those who have objected to the repeal of Article 370. Some petitioners cited the Supreme Court’s 2018 decision, which stated that Article 370 had gained permanent status.

Many petitions have also been filed against the Jammu and Kashmir State Reorganization Act, which calls for the division of J&K into two Union Territories.

Despite opposition from the central government, which argued that Article 370 had international and cross-border implications, the Supreme Court issued notices on the petitions on August 28, 2019. The Centre also claimed that it is a highly sensitive issue, and that whatever happens in the country will be brought up at the United Nations. While issuing notices in 2019, the court referred the case to the five-judge constitution bench.

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Supreme Court: Fixed Term Sentences Exceeding 14 Years Can Be Alternative To Death Sentence In Certain Cases

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death penalty

The Supreme Court in the case State of Haryana vs Anand Kindoo observed and stated that fixed term sentences exceeding 14 years can be awared in appropriate cases to strike a delicate balance between the victims’ petition for justice and rehabilitative justice for the convicts.
The bench comprising of Justice Sanjay Kishan Kaul, Justice Abhay S. Oka and the Justice Vikram Nath observed that this fixed term sentence can only be by the High Court or this Court and not by the trial Court.
In the present case, the trial court awarded death sentence to the accused who were ‘trusted employees’ of the deceased. However, Major General Kailash Chand Dhingra (K.C. Dhingra) and his wife Smt. Sangeeta Dhingra, who were an aged couple and were killed by the accused while they were sleeping. It was refused by the High Court to confirm the death sentence and imposed life sentence on them.
In an appeal before the Apex Court, the complainant and the state contended that given the brutality of the crime, the court should impose a fixed term sentence before which the convicts are not liable to be considered for granting of remission. Thus, it was submitted that there should be at least a fixed term sentence.
The court observed that it was a pre-planned murder for gain and greed by somebody who was in a position of trust with the family.
The bench observed that at an advanced stage in such health respect, there is always an element of trust and faith in the person by a person who employs them as well as the family members. However, the work takes other family members elsewhere and with the joint family system having broken down, the role of such trusted help becomes even more significant. Also, it is the significance of the society where a wrong signal goes if a trusted person breaches that trust to kill the person who had employed them in such a gruesome manner. It has been stated by the trial Court, the society itself demands justice, apart from an utter element on deterrence which is in any aspect of conviction. Further, the approach cannot be the vindictive but lack of appropriate sentence leaves the cry of justice of the society un-addressed apart from the fact that other persons who may have the propensity to carry out the crime feel that they will get away with the lighter sentence, if in case they are caught. While, battering two sleeping people beyond recognition who imposed trust in their employee certainly calls for something more than merely a life sentence under Section 302, IPC, even if death sentence is not to be imposed.
Therefore, the court imposed a fixed term sentence of 30 years.
The bench while allowing the appeal observed in the case Shankar Kishanrao khade vs. State of Mahrashtra (2013) 5 SCC 546, wherein it was held that if there is any circumstance favouring the accused such as lack of intention to commit the crime, young age of the accused, possibility of reformation etc., accused not being a menance to the society, no previous criminal record etc., the accused may avoid capital punishment. It was opined by the court that the crime is important but so is the criminal and hence the Supreme Court in recent past has substituted death penalty with fixed term sentences exceeding 14 years. It stated that imposing a fixed term sentence creates a possibility for the convict to re-integrate into society after serving his/her sentence. A delicate balance is strike the balance between victims’ plea for justice.

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NCLAT Upholds Dismissal Of Section 7 Petition, Corporate Debtor Willing To Pay Full Amount, Opposed By Financial Creditor

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NCLAT Upholds Dismissal Of Section 7 Petition, Corporate Debtor Willing To Pay Full Amount, Opposed By Financial Creditor

The National Company Law Appellate Tribunal (“NCLAT”) in the case Reliance Commercial Finance Limited v Darode Jog Builder Private Limited, the Principal Bench, comprising of Justice Ashok Bhushan (Chairperson), Judicial Member, Justice M. Satyanarayana Murthy and the Technical Member, Mr. Barun Mitra observed while adjudicating an appeal filed in Reliance Commercial Finance Limited v Darode Jog Builder Pvt. Ltd., has upheld the Adjudicating Authority’s decision to not admit a petition under Section 7 of IBC, despite there being a default and a debt. It was recorded by the bench the Corporate Debtor an opportunity to pay/settle the full amount of default despite the Financial Creditor’s unwillingness to enter settlement.

Background Facts of the Case:
The Appellant/ Financial Creditor, Reliance Commercial Finance Limited had sanctioned Term-Loans of Rs. 19.5 Crores to the Corporate Debtor i.e., Darode Jog Builder Pvt. Ltd. on 29.07.2013. In 2017, the Loan Accounts were declared as the Non-Performing Assets. On 04.11.2019, a petition under Section 7 of Insolvency and Bankruptcy Code, 2016 (“IBC”) was filled by Financial Creditor, wherein seeking initiation of Corporate Insolvency Resolution Process (“CIRP”) over a default of Rs. 15,79,41,658/- against the Corporate Debtor.
It was observed that in an hearing held on 06.07.2022, the Corporate Debtor acknowledged its liability to pay and made an offer of Rs. 12.75 Crores, which is to be paid within 45 days. Thus, the Adjudicating Authority directed the Counsel for the Financial Creditor to obtain appropriate instructions. Thus, the court observed that if the Settlement did not take place, the Petition would automatically be admitted on the next date of hearing.
The court on the next date of hearing i.e. 11.07.2022, it was submitted by the Corporate Debtor that it is willing to deposit the entire amount of Rs. 15,79,41,658/- within 45 days. However, the Financial Creditor expressed its unwillingness for settling the matter. The Bank account details of the Financial Creditor were obtained by the Adjudicating Authority and alongside granted liberty to the latter to file for restoration of petition in case said amount is not deposited within 45 days. The court disposed of the appeal.
The Financial Creditor filed an appeal before the NCLAT, aggrieved by the order dated 11.07.2022.

Contentions Made By Appellant:
It was submitted by the Financial Creditor that the Adjudicating Authority committed error in disposing of the Petition, as it was not willing to settle the matter. However, the Adjudicating Authority could not have permitted the Corporate Debtor to deposit amount in Financial Creditor’s account.

Contentions Made By Respondent:
It was argued by the Corporate Debtor that Financial Creditor was unwilling to settle as earlier entire amount was not offered and settlement had not taken place despite several adjournments. Further, it was submitted that the Corporate Debtor has financial capacity to deposit the entire amount.

NCLAT Decision:
The Bench placed reliance on the Supreme Court judgment in the case Vidarbha Industries Power Limited Vs. Axis Bank Limited, Civil Appeal No. 4633 of 2021.
It was observed by the bench that as per the judgment, even after debt and default is there, Adjudicating Authority has to apply its mind to assess the feasibility of initiating CIRP.
It stated that when the Corporate Debtor has complied to deposit the entire defaulted amount of the Financial Creditor as permitted by the Adjudicating Authority and no purpose and occasion shall survive to still proceed with the Corporate Debtor Insolvency Resolution.
Accordingly, the bench observed that the proceedings under Section 7 are for resolution of insolvency. Adjudicating Authority had not erred in ascertaining whether the Corporate Debtor can comply to deposit the entire defaulted amount in bank account of Financial Creditor’s. Further, the court observed that the Financial Creditor’s interest was fully protected, since liberty was already given to revive the petition in case full amount was not received within 45 days.

The bench dismissed the appeal.

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Legally Speaking

IBBI Amends Liquidation Process Regulations: COC To Function As Stakeholder’s Consultation Committee For First 60 Days

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IBBI Amends Liquidation Process Regulations: COC To Function As Stakeholder’s Consultation Committee For First 60 Days

On 16.09.2022, the Insolvency and Bankruptcy Board of India (“IBBI”) has notified amendments for a second time to the IBBI (Voluntary Liquidation Process) Regulations, 2016 (“Voluntary Liquidation Regulations”) and IBBI (Liquidation Process) Regulations, 2016 (“Liquidation Regulations”).
Detailed Overview Of the Amendments:
the IBBI has introduced the following amendments to the Voluntary Liquidation Regulations and Liquidation Process regulations, in exercise of the powers conferred by Section 196(1)(t) read with Section 240 of the Insolvency and Bankruptcy Code, 2016.
For enabling better participation of stakeholders and streamline the liquidation process to reduce delays and realize better value, the following major modifications are made for the amendment in Liquidation Regulation.
The Committee of Creditors (CoC) constituted during Corporate Insolvency Resolution Process (CIRP) shall function as Stakeholders Consultation Committee (SCC) in the first 60 days and after the adjudication of claims and within 60 days of initiation of process, the SCC shall be reconstituted with respect to the admitted claims.
It has been mandated to the liquidator to conduct the meetings of SCC in a structured and time bound manner with better participation of stakeholders.
It has been enlarged the scope of mandatory consultation by liquidator with SCC and now SCC may even propose replacement of liquidator to the Adjudicating Authority (AA) and fix the fees of liquidator, if the same during CIRP is not fixed by the CoC.
The amount of claim collated during CIRP shall be verified by the liquidator, if any claim is not fixed during the liquidation process.
Whenever it is decided by the CoC that the process of compromise or arrangement may be explored during liquidation process, an application shall be filled by the liquidator only in such cases before Adjudicating Authority for considering the proposal of arrangement or compromise, if any, within thirty days of the order of liquidation.
For Auction process, specific event-based timelines have been stipulated.
SCC b Before filing of an application for dissolution or closure of the process shall advice the liquidator, the manner in which proceedings in respect of avoidance transactions or fraudulent or wrongful trading and shall be pursued after closure of liquidation proceedings.
Further, the Amendment Liquidation Regulations and Amendment Voluntary Liquidation Regulations lays down the manner and period of retention of records relating to liquidation and voluntary liquidation of a corporate debtor or corporate person, respectively.

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Supreme Court: Setting Aside NCDRC Order Awarding Compensation To Women Who Gave Birth Despite Undergoing Tubectomy Surgery

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Supreme Court: Setting Aside NCDRC Order Awarding Compensation To Women Who Gave Birth Despite Undergoing Tubectomy Surgery

The Supreme Court in the case Civil Hospital vs Manjit Singh observed and has set aside an NCDRC order that directed a hospital to pay compensation to a woman who delivered a child despite undergoing tubectomy procedure.
In the present case, a woman underwent tubectomy procedure twice, though both the procedures remained unsuccessful. In the year 2003, she gave birth to a male child. A complaint was filled by her before the District Consumer Disputes Redressal Forum alleging medical negligence on account of failed tubectomy surgery. Thus, the court dismissed the same on the ground that the hospital is not a consumer. The order was affirmed by the State Consumer Commission (SCDRC). Later, the revision petition was allowed by the National Consumer Commission and has directed to pay compensation as per the guidelines and the policy of the State.
Before the Apex Court, two contentions were raised by the hospital (1) that hospitals and Doctors who render service without any charge to every person availing of the service would not fall within the ambit of ‘service’ under Section 2(1)(o) of the Act relying on the case Indian Medical Association Vs. V.P. Shantha And Ors., (1995) 6 SCC 651 that the failed tubectomy surgery is not a case of medical negligence as the sterilized woman can become pregnant due to natural causes. [relying on the case State of Punjab Vs. Shiv Ram and Ors., 2005, 7 SCC 1].
The bench while taking notice of the law laid down in the decisions relied on by the appellants, allowed the appeal by setting aside the NCDRC order. However, if the respondent has been paid any amount in terms of the Order of the NCDRC, the same shall not be recovered by the State, the bench said.
It was observed in In V.P. Shantha that the Hospitals and Doctors who render service without any charge whatsoever to every person availing of the service would not fall within the ambit of ‘service’ under Section 2(1)(o) of the Act. Thus, the payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals.
The Apex Court regarding failed tubectomy surgery in Shiv Ram (supra), had observed that the cause of action in claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on the account of child birth. Further, the failure due to natural causes would not provide any ground for claim and it is the women who has conceived the child to go or not to go for medical termination of pregnancy. Thus, having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child and the compensation for maintenance and upbringing of such a child cannot be claimed.

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