The instant case has been filed U/s 12 of the C.P. Act, 1986 on 25.07.2013 by the complainant Adari Das alias adar Das against the O.Ps claiming a sum of ₹ 1,00,000/- for compensation, a sum of ₹ 30,000/- for her physical and mental harassment and a sum of ₹ 1,00,000/- for the maintenances of her new born additional child after sterilization operation on the ground of failure of her sterilization operation.
Shortly stated, the case of the complainant is that she approached the O.P No.5 on 30.01.2009 for her sterilization. The sterilization operation performed on her and thereafter a certificate to that effect was also issued to her. On receipt of such certificate, the complainant Adari Das alias adar Das came back to her own house. But subsequently, despite the operation, she conceived. Thereafter, the complainant submitted all his relevant papers at the Office of the O.P No.1 demanding proper compensation for failure of her sterilization operation. But till date no compensation was given to the complainant. Being disappointed, the complainant was compelled to file the instant case. This is, in short, the case of the complainant.
The O.P No.s 1, 6 & 5 are contesting the instant case by filing a joint written version and thereby they have denied almost all the material allegations and averments made in the petition of complaint.
The positive defence case is that the complainant appeared before the O.P No.5 for her Sterilization Operation and it was done by O.P No.5 successfully by way of Mini-laparoscopic sterilization(method of permanent sterilization) in the National Family Planning Programme and accordingly the complainant collected sterilization certificate from the authority. Thereafter the complainant never informed to the O.Ps about her present matter along with Xerox copies of necessary documents. As a result the O.Ps did not make any enquiry to that effect and in this case the O.Ps did not take any step regarding her compensation from the O.P No.4. The further case of the O.Ps is that as per Medical Jurisprudence such operation is not always 100% safe and secure, it may fail. For this reason the O.Ps (Govt. of West Bengal) made agreement with the O.P No.4 and paid premium to the O.P No.4 for such type of operation and for such failure cases the O.Ps (Govt.) are not liable and no way responsible to pay any compensation to the complainant. The O.P No.4 is fully responsible to arrange compensation to such type of beneficiary (complainant). In this case the complainant did not submit any document regarding failure of her sterilization operation. Resultantly, the O.Ps initially did not take any step for arranging any compensation to the complainant from the O.P No.4 and if such failure arises the O.P No.4 is bound to settle the claim of compensation of the complainant as per agreement with these O.Ps. The O.Ps are not responsible for such claim. The letter dated 06.01.12 indicates that the O.P No.1 is always trying to settle the claim of the complainant. These O.Ps have no latches or negligence from their side. In the circumstances, these O.Ps pray for dismissal of this case with cost.
The O.P No. 4 is also contesting the instant case by filing a separate written version. The specific case of this O.P is that CMOH Birbhum has made a policy with this O.P ICICI Lombard General Insurance Co. Ltd. for any unusual occurrence occurred at the time of any operation of any patient. But in this case the doctors are responsible for the sterilization matter and this O.P is no way responsible for such act of the doctor. Under the circumstances, the O.P No.4 prays for expunging his name from this case.
Points for determination:
- Is there any negligence and deficiency in service on the part of the O.Ps?
- Is the complainant entitled to relief or reliefs as claimed for?
Decision with reasons
Points No. 1) & 2):- Both the points are taken up together for consideration for the sake of brevity and convenience of discussion as they are interlinked.
Perused the petition of complaint, written versions filed by the contesting O.Ps, evidence and other materials on record.
Admittedly, the O.P No.5 performed mini-lap sterilization operation upon the complainant on 30/01/2009 at Sultanpur Block Primary Health Centre, Birbhum in the National Family Planning Programme.
Admittedly, a certificate to that effect was also issued to the complainant. By issuing such certificate Adari Das alias adar Das, the complainant was assured that full, complete and successful sterilization operation had been performed on her and she would not conceive a child in future.It is also admitted fact that subsequently the complainant conceived and in course of time she gave birth to a female child. Admittedly and on perusal of the materials on record we find that due to failure of mini-lap sterilization operation, the complainant conceived and gave birth to a female child.
Admittedly, CMOH Birbhum made policy with O.P No.4 Insurance Co. for any unusual occurrence occurred at the time of any operation of any patient. The O.P No.4 has stated by filing W.V that in this case Doctors are responsible for the ligation matter. So, this O.P No.4 is no way responsible for the act of the Doctors.
Now, we have to find out the real cause of failure of such mini-lap sterilization operation upon the complainant. It is true that according to Medical Jurisprudence such operation is not always 100% safe and secure, it may fail. But here the question is that whether such failure of mini-lap sterilization operation comes under the purview of exceptional category where the operating Doctor has no negligence or deficiency in service on his part or whether there is any negligence or deficiency in service on the part of the operating Doctor for which such failure causes.
Record shows that Doctor Tathagata Ghosh attached to Block Medical Office of Health, Sultanpur, BPHC, Dist. Birbhum has come before this Forum to adduce evidence for self and on behalf of O.P No.1 & 6. During cross-examination this qualified doctor has categorically and unambiguously stated before this Forum that in this case after ligation Adari Das alias adar Das (complainant) has conceived and there are procedural problems of the ligation operation. Such statements go to prove that mini-lap sterilization operation upon the complainant failed due to adopting defective procedure by the operating doctor during sterilization operation. This is not the case where the mini-lap sterilization operation upon the complainant failed in spite of adopting right procedure by the operating doctor but we find that min-lap sterilization operation upon the complainant failed due to defective procedure adopted by the operating doctor. Therefore, it is crystal clear before us that mini-lap sterilization operation upon the complainant failed due to medical negligence as well as deficiency in service on the part of the operating doctor. It is well settled that it is not necessary to have opinion of the expert in each and every case of medical negligence. In this particular case O.P No.5 who is a qualified doctor as well as Medical Officer has clearly admitted that there were some procedural defects in the matter of mini-lap sterilization operation upon the complainant. It is also well settled that admitted facts need not be proved. Therefore, we are of the view that in this case further separate expert opinion is not necessary to prove medical negligence. In such a position it can be safely said and held that there was medical negligence as well as deficiency in service on the part of the operating doctor. Accordingly, we are of considered opinion that in this case the complainant is entitled to proper compensation for failure of mini-lap sterilization operation due to negligence and deficiency in service on the part of operating doctor.
From the materials on record we are also of the view that the O.P No.4 is bound to pay a sum of ₹.30,000/- to the complainant for failure of mini-lap sterilization operation. Because Insurance policy agreement goes to indicate that the O.P No.4 is liable to pay a sum of ₹ 30,000/- in any type of failure of sterilization operation.
Now, we are to consider the quantum of compensation. The Doctor performed the operation by adopting defective procedure. As such the possibility of conception by the complainant was not completely ruled out and consequently the complainant conceived and gave birth to an unwanted child. The complainant is a poor illiterate scheduled caste woman and she earns her livelihood by taking up the job of an ordinary labourer. She is entitled to proper compensation on account of medical negligence as well as deficiency in service. The unwanted child born to her has created additional burden for her owing to negligence and deficiency in service on the part of the doctor who performed mini-lap sterilization operation on her. Therefore, we are of the view that she is entitled to proper compensation from the O.P No. 4 & 5 to enable her to bring up her new born female child and for her mental and physical harassment.
Having considered the facts and circumstances of the case evidence other materials on record and in the light of our discussion made above we are of considered opinion that it would be just proper and reasonable if the complainant gets a sum of ₹ 80,000/- as compensation and a sum of ₹ 5000/- as litigation cost. Accordingly the points No. 1) & 2) are disposed of. In the result the instant case succeeds but in part.
Proper fees have been paid.
Hence, it is
O R D E R E D
that C.F case No. 88/2013 be and the same is allowed on contest against the O.P No. 1, 4, 5 & 6 and ex parte against the others but in part.
The complainant do get an order of compensation amounting to ₹ 80,000/- against the O.Ps. The O.P No.4 is directed to pay a sum of ₹ 30,000/- to the complainant and the O.P No.5 is directed to pay a sum of ₹ 50,000/- to the complainant as compensation. The O.P No. 5 is further directed to pay a sum of ₹ 5,000/- as litigation cost. The O.P No. 4 & 5 are further directed to pay the above amount to the complainant within one month from the date of this order failing which the complainant would be at liberty to execute the above order through this Forum as per law and procedure.
Let copies of the order be supplied to the parties free of cost under provision of Order 5 Rule 10 of the W.B C.P Rules 1987.
