The grievance of the complainant against the Opposite parties in brief is, that she was pregnant on the 9th month of pregnancy she visited 2nd OP Hospital for delivery and was in their care and custody. That OP-1 conducted delivery and she delivered her 4th child on 22/01/2008 and decided to undergo operation to curtail further conceiving. OP did abdominal Tubectomy and assured her that she would not conceive in future. On such advise and assurance she undergone Tubectomy in the Hospital of OP-2. The operation had negative result on her as she once again conceived after the operation done by the 1st OP. That she having full faith in OP-1 undergone the Operation by paying Rs.40,000/- towards delivery and operation. That she was in bed after delivery for 3 to 4 months, that she conceiving again clearly proves deficiency in the service of 1st OP in conducting operation which has resulted in failure. As the result of this failure due to the negligence of 1st OP, she had to bear the financial burden to look after the fifth child and suffered mental agony. That she bringing to the notice of the 1st OP about this failure got issued legal notice on 24-11-2008 for which OP -1 has sent reply by contending as if the family planning operation is not 100% successful and there is risk of failure in future, by further stating that she had so informed her. Therefore stated that cause of action to the complaint arose when operation was done on 22/01/2008 and subsequently on various occasion and finally when legal notice was served on OP-1 and thereby she has prayed for compensation of Rs.5 Lakhs with interest.<br /> <br /> Op No.1 and 2 have appeared through advocate and filed their version admitting that OP-1 was subjected to abdominal Tubectomy operation for family planning. That surgery was uneventful and both mother and child were absolutely fine. There was no post operative complications and complainant had recovered within a day and was discharged when her condition was absolutely normal. That she was advised for follow-up treatment but did not turn up thereafter. Ops denying the allegations of negligence in conducting Tubectomy have stated that operation was done on the complainant’s willingness and with her consent after explaining all the pros and cons of the same. That the complainant was also informed that surgery will not 100% foolproof for not conceiving again. They by denying that they had assured that the complainant will not conceive again have further stated that operation was done by following required safe procedure which was scientifically proved and the complainant understood all the complications, procedure and even the failure and had consented for Tubectomy. They further denying to had received Rs.40,000/- for the surgery and delivery have stated that they received only Rs.12,500/- for both the events which is the minimum. The Ops further denying all the allegations have contended that they are the honest medical professionalists have not done any negligence and denying their liability to pay compensation as claimed by the complainant have prayed for the dismissal of the complaint.<br /> <br /> <br /> The 3rd Op is a insurance company claimed to issue a policy insuring the equipments of the Hospital and is not liable in any way to the parties.<br /> <br /> In the course of enquiry into the complaint, the complainant and the 1st OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The Ops have got affidavit evidence of one Dr. Hema Divakar filed. Complainant has produced the Hospital records to prove the expenditure that she had incurred in the course of her hospitalization with Op-2. She has also produced the copy of the legal notice and reply sent by the Ops. Ops have produced the case history of the complainant maintained in the OP-2 Hospital. We have heard the counsel for both parties and perused the records. <br /> <br /> On the above materials following points for determination arise,<br /> <br /> 1. Whether the complainant proves that OP-1, while doing abdominal Tubectomy on her in the 2nd OP Hospital did it negligently and thereby caused deficiency in their service?<br /> 2. To what relief the complainant is entitled to?<br /> <br /> Our findings are as under:<br /> <br /> Answer on point No: 1 in the negative. <br /> Answer on Point No: 2 to see the final order<br /> <br /> REASONS:<br /> <br /> Answer on point No:1 The fact that the complainant got admitted to 2nd OP Hospital for delivery and after natural delivery, with her consent abdominal Tubectomy was done on 22/01/2008 is not in dispute. It is the allegation of the complainant that OP-1 before doing Tubectomy had promised her that she will not again conceive, operation would be effective to prevent further conceiving is denied by the 1st OP by contending that she never promised the complainant of 100% success of the Tubectomy operation and has further stated after explaining pros and cons of the operation and possibility of failure of Tubectomy she had conducted the same. <br /> <br /> The complainant in the complaint though stated that preventive operation is failed and she conceived again for the 5th child but has not given the commencing date of conceiving and the date of birth of the 5th child and the contention of the complainant in this regard in the complaint found to be an hypothetical one without any material details. However in the affidavit evidence filed by her she has stated that she gave birth to 5th child on 14/02/2009 and thereby stated because of the negligence of OP-1 in doing abdominal Tubectomy operation, the operation became unsuccessful as the the result she gave birth to the 5th child by casting burden on her to look after that child which was unwanted with the consequential financial burden. Ops ofcourse have not doubted the statement of the complainant regarding her subsequent conceiving and giving birth to a 5th child. Therefore we are not on that point whether the complainant has given birth to a 5th child or not and we shall have to proceed bearing in mind that the complainants contention that she has given birth to 5th child is not controverted. Therefore the only point that we are required to examine is whether OP-1 was negligent in doing the tubectomy operation and that has resulted in the birth of unwanted child and that OP’s are liable to compensate the complainant.<br /> <br /> As could be found from the complaint allegations and the affidavit evidence of the complainant we do not find even a whisper or an allegation as how this OP-1 was negligent in conducting abdominal Tubectomy. The mere allegation of the complainant that even after Tubectomy she has given birth to a child itself cannot be construed as negligence and award compensation against the Ops. The complainant in our view is required to prove the specific negligent act of the 1st OP which has lead to conceiving, by the complainant. Abdominal Tubectomy is required to be performed in a particular and established manner and process and if that was done by the 1st OP then in such a case even if there is a failure in the object of operation the Ops can not be held guilty. Ops in order to prove that the method or process adopted by OP-1 in doing Tubectomy was a safe method and has done it methodically has examined one Dr. Hema Divakar as an Expert. This witness who is an Obstetrician and Gynecologist M.D. has deposed that she is having 25 years of experience in the field and is a Member of various associations of the field. She has stated that abdominal Tubectomy is a method of permanent sterilization where the fallopian tubes are interrupted so as to prevent transportation of the eggs and the approach to the tubes is through abdominal incision. She has further deposed that in the case on hand, warranted standard of care has been exercised by the OP while conducting surgery both the tubes have been legated in the standard manner and there is no deficiency what so ever on the part of the Ops while conducting surgery. She has further stated that failure is due to the formation of tubo-peritoneal fistula or occasional recanalisation spontaneously and pregnancy can occur because of undiagnosed carpus leutal phase pregnancy or spontaneous recanalisation and stated that failure rate of female sterlisation is 0.5% to 0.7% and denied there is negligence on the part of OP-1 in doing the surgery on the complainant. The evidence of this witness has not been controverted by the complainant either by filing any affidavit evidence contrary to it or by subjecting this Expert to cross examination. Therefore the evidence of the 1st OP that she has done abdominal Tubectomy on the complainant with all care and by following the prescribed procedure has not been discredited and has been corroborated with the evidence of the Expert.<br /> <br /> The learned counsel appearing for the complainant argued that 1st OP who after promising the complainant of 100% success in sterilization, did abdominal Tubectomy but her promise is proved to be false by the fact of birth of the child to the complainant subsequently and that is sufficient to prove the negligence of the OP and thereby submitted for allowing the complaint, and in support of his argument relied upon a decision of the Hon’ble Supreme Court reported in I (2000)CPJ page 53. In this case the Hon’ble Supreme Court finding that the doctor who conducted sterilization operation on the respondent in that case found from the evidence of DW-2 that operation related only to the right fallopian tube and the left fallopian tube was not touched which indicates that complete sterilization operation was not done and thereby the Hon’ble Supreme Court found that doctor who did sterilization was negligent and ordered for compensation. Hence at case has no application to the facts of this case, as the complainant is not able to prove any such negligence on the part of the OP-1. Whereas the counsel for OP-1 and 2 submitting his arguments stated that abdominal sterilization is not a 100% successful operation for preventing future conceiving, therefore even though after OP-1 did Tubectomy if there was failure and the complainant has given birth to a child later on the 1st OP cannot be held as negligent and in this regard he relied upon the literature on population, dynamics and control of conception and decisions reported in I (2009) CPJ page 192 (NC) and III(2009) CPJ 17 (NC) and few decisions regarding proof of negligence of a medical professionalist. In these two decisions of the Hon’ble National Commission, the National Commission has held that child birth will not take place after Tubectomy operation not guaranteed as explained in the medical text regarding failure of Tubectomy operation. Further it could be seen that the complainant has stated that she did not want to conceive again could have got the 5th child terminated through medical termination of pregnancy and avoided the birth and why did she not go for it is not explained. Therefore on considering all these facts which were remained uncontrovorted prove that the 1st OP was not negligent in doing Tubectomy operation and the complainant has not been successful in proving any sort of negligence of OP-1 in doing the operation. Therefore the complain t in our view is devoid of merits and in this regard we rely on a decision of the Hon’ble National Commission reported in 2010 CTJ 50 and answer point No.1 in the negative and pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is dismissed. Parties to bear their own costs.<br />