| ORDER | | BEFORE THE DISTRICT CONSUMERS FORUM AT KHAMMAM Dated this, the 15th day of December, 2010 CORAM: 1. Sri Vijay Kumar, B.Com., LL.B., President 2. Smt.V.Vijaya Rekha, B.Sc. B.L., Member 3. Sri.R.Kiran Kumar, B.Sc., LL.B., Member C.C.No.97 of 2010 Between: Burra Yellamma, w/o. Rama Rao, age: 25 years, occu: Coolie, r/o.Thurka Gudam (v), Kusumanchi Mandal, Khammam District. …Complainant and 1. The District Medical & Health Officer, Khammam, Khammam District. 2. The Medical Officer, Kusumanchi Primary Health Center, Khammam District. …Opposite parties This C.C. is coming on before this Forum for final hearing in the presence of Sri.V.A.K.Reddy, Advocate for complainant; Notice of opposite parties served and called absent; upon perusing the material papers on record; upon hearing the arguments, and having stood over for consideration, till this day, this Forum passed the following:- ORDER (Per Sri.Vijay Kumar, President) This is a complaint attributing medical negligence on the part of opposite parties No.1 and 2. The averments made in the complaint are that the complainant is a poor woman, having two sons and one daughter. Owing to her poverty, she is unable to feed her children with sufficient nutrition food. In order to prevent further pregnancy, the complainant approached the Government Hospital, met opposite party No.2 and expressed her willingness not to conceive pregnancy further, as she is unable to provide nutritious food to the present children. The opposite party No.2 accepted and obtained her signatures of the complainant on the printed & hand written papers and the complainant was operated on 27-2-2007 at about 11-00 a.m. at Mandal Parishad Health Centre at Kusumanchi. As per the instructions given to her on the date of operation, the complainant attended the said hospital from time to time, but the medical officer never seen her. Had the medical officer treated the complainant, the pregnancy of the complainant would have been traced at the earlier stage from the date of operation. The delay caused in identifying the pregnancy was only because of negligence of opposite party No.2, due to which she conceived the pregnancy and gave birth to a female child. The unwanted child was delivered only due to the negligence in service on the part of opposite party No.2. The complainant got issued a legal notice to which the opposite party No.1 replied on 12-4-2010 stating that the complainant ought to have brought to the notice of opposite party No.2 regarding the pregnancy within 3 months from the date of operation, as she failed to bring to the notice of opposite party No.2 within stipulated time, thus the claim of the complainant is time barred. It is further replied in the notice if the opposite party No.2 was regular to the hospital, the fact of failure of operation would have been traced and at once necessary arrangements would have been made. The failure on the part of opposite party amounts to sheer negligence, thereby the complainant was constrained to bear the entire expenditure of the unwanted child such as feeding nutritious food and education and prayed to award compensation of Rs.2,00,000/- and other expenditure. Hence, this complaint. Apart from the complaint, she filed the following documents. Ex.A.1 - Photocopy of Sterilization certificate, dt.18-4-2007 Ex.A.2 - Photocopy of Certificate of birth issued by the Khammam Municipalty, dt.4-12-2008. Ex.A.3 - office copy of legal notice, dt.25-2-2010 Ex.A.4 - Reply notice of the opposite party No.1 The other number of documents, which are not relevant to the case of the complainant. On presenting the complaint, a notice is issued to opposite party Nos.1 and 2 calling them to appear before the Forum. Even after receiving the notice, opposite parties called absent. None appeared on their behalf. Thereafter, the case underwent a number of adjournments for the appearance of opposite parties. Even though none appeared on behalf of the opposite parties. On behalf of the complainant, chief affidavit is filed. Heard the counsel for complainant. Perused the oral and documentary evidence, upon which the points that arose for consideration are, 1. Whether the complainant is entitled for the compensation sought in the complaint? 2. To what relief? Point Nos.1 and 2: As seen from the record, though the notice served on the opposite parties, they did not care to represent their case. As per the docket of the case file, the case underwent a number of adjournments enabling the opposite parties to file counter and to put forth their case, yet there was no representation from the opposite parties. From the side of the opposite parties, only one material paper is on record i.e. reply notice given by opposite party No.1 marked as Ex.A.4. In the reply notice it is submitted that the matter of failure of tubectomy operation was not brought to the notice of the medical officer concerned from the date of conceiving to till the date of receipt of notice. Had the complainant approached the department within stipulated time that is within three months from the date of failure of operation, the compensation amount would have been paid in accordance with the norms laid down by ICICI Lombard General Insurance Co. Ltd., as per the memoranda of understanding signed with them by the Government. It is further submitted in the reply notice that the failure of sterilization is not uncommon and international studies revealed that there is a possibility of 1.85% failures in tubectomy cases and this was made known to the complainant at the time of conducting operation. Except this reply notice, no case is put forth by the opposite party. As seen from the contents of reply notice, it came to light that the complainant undergone tubectomy operation on 27-2-2007 at about 11-00 a.m., this fact is made clear as per Ex.A.1, sterilization certificate issued by M.P.H.C., Kusumanchi. It is also not in dispute that even after undergoing tubectomy operation, the complainant conceived pregnancy and gave birth to unwanted child on 30-7-2008. It is made clear as per Ex.A.2. The complainant immediately after undergoing tubectomy operation, made rounds to the hospital from time to time as per the instruction given by the opposite party No.2, but medical officer did not care to treat the complainant. Had the opposite party No.2 treated the complainant, the pregnancy would have been traced at the earliest stage. But for the delay in identifying the pregnancy on the part of opposite party No.2, as a result the complainant gave birth to a female unwanted child. It is for the opposite party to establish that the failure of sterilization is not uncommon and it is for them to prove that there is possibility of 1.85% failure in tubectomy cases. The onus is on the part of opposite party Nos.1 and 2 to prove that there was a counseling before conducting the tubectomy operation and they have taken the consent of complainant. It is for the opposite parties No.1 and 2 to prove that there is no negligence on their part in conducting sterilization operation as in Ex.A.1. In the absence of contra, it cannot be said that there is no negligence on the part of opposite parties No.1 and 2 in conducting tubectomy operation on complainant. The complainant is a poor and illiterate rustic lady. She is unaware of the fact that she conceived pregnancy at the earlier stage. When she noticed about the conceiving pregnancy, immediately she brought to the notice of opposite parties No.1 and 2 by way of legal notice as in Ex.A.3. It is not that the opposite parties No.1 and 2 are unaware of the fact of conceiving of pregnancy by the complainant. Inspite of knowledge of conceiving pregnancy by the complainant, even after undergoing tubectomy operation, the in action on the part of opposite parties amounts to any amount of deficiency on their part. The complainant had already two sons and one daughter, she is overburdened with her family. She wanted not to conceive pregnancy in future. That is why she has decided to undergo tubectomy operation in the hands of opposite party No.2. The very purpose of her undergoing tubectomy operation has been defeated, she gave birth to unwanted female child. Because of her poverty, she is unable to maintain unwanted child. Therefore, she filed the present complaint praying to direct the opposite parties to bear the entire expenditure of the unwanted child such as her feeding food and education. In view of the above facts and circumstances, we are of the opinion that there is any amount of negligence on the part of opposite parties in conducting tubectomy operation on the complainant. Even after undergoing tubectomy operation, the complainant conceived pregnancy and gave birth to a female child. Therefore, we direct the opposite parties No.1 and 2 jointly and severally to pay an amount of Rs.1,00,000/- by way of compensation to the complainant to meet the expenditure of unwanted child, together with interest at 9% P.A. from the date of conducting tubectomy operation i.e. 27-2-2007 till the date of deposit and further directed to pay an amount of Rs.10,000/- towards delivery and other medical expenditure and Rs.2,000/- towards costs of the litigation. On such deposit, an amount of Rs.1,00,000/- shall be kept in F.D.R. in the name of minor child, till she attains the age of majority and the complainant is permitted to withdraw the interest accrued on the F.D.R. Dictated to the steno, transcribed by her, corrected and pronounced by us in the open forum on this 15th day of December, 2010. PRESIDENT MEMBER MEMBER DISTRICT CONSUMERS FORUM KHAMMAM Appendix of Evidence Witnesses examined for complainant: - None- Witnesses examined for opposite parties: - None- Exhibits marked for complainant: Ex.A.1 - Photocopy of Sterilization certificate, dt.18-4-2007 Ex.A.2 - Photocopy of Certificate of birth issued by the Khammam Municipalty, dt.4-12-2008. Ex.A.3 - office copy of legal notice, dt.25-2-2010 Ex.A.4 - Reply notice of the opposite party No.1 Exhibits marked for opposite parties : -Nil - PRESIDENT MEMBER MEMBER DISTRICT CONSUMERS FORUM KHAMMAM | |
