STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

First Appeal No  :       39 of 2015

Date of Institution:     14.01.2015

Date of Decision :      06.05.2015

Santosh/Santa @ Santo wife of Shyam, Resident of Village Ladiyaka, Tehsil and District Palwal.

                                      Appellant-Complainant

Versus

The authorized signatory/Director/Managing Director of Able Dharmath Hospital, Mathura Road, Village Behrola, Tehsil Palwal, District Palwal.

                             Respondent-Opposite Party

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member                                                                                                                                         

Present:               Shri Johan Kumar, Advocate for appellant.

                             Shri Yash Paul Khullar, Advocate for respondent.

                                                   O R D E R

NAWAB SINGH J.(ORAL)

This complainant’s appeal is directed against the order dated December 17^th, 2014 passed by District Consumer Disputes Redressal Forum (for short ‘District Forum’), Palwal, whereby complaint filed by her was dismissed.

2.      Santosh @ Santo underwent tubectomy operation at Able Dharmarth Hospital, Behrola-Opposite Party (respondent herein) in the year 2005. On May 24^th, 2013 she gave birth to a female child. Alleging deficiency in service on the part of the opposite party, she filed complaint under Section 12 of the Consumer Protection Act, 1986.

3.      The respondent-opposite party contested complaint by filing reply.  It was denied that tubectomy operation of the complainant was ever performed at Opposite Party’s hospital in the year 2005. Denying the claim of the complainant, it was prayed that the complaint be dismissed.

4.      The question for consideration is as to whether failure of tubectomy is the negligence on the part of operating doctor?

5.      In State of Punjab vs. Shiv Ram and Others, (2005) 7 SCC, Hon’ble Supreme Court while deciding the issue in hand relied upon number of textbooks on gynaecology and held as under:-

 “We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam's test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100 % exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee.”

6.      This case is fully covered by Shiv Ram’s case (Supra). In Medical Science, different methods of female sterilization operation have been prescribed but none of them guarantees 100% success. Authoritative Text Books on Gynaecology and empirical researches recognize the failure rate of sterilization to the extent of 0.3% to 7%. The pregnancy that occurred after sterilization may be attributable to natural failure. The standard medical text books on Obst.& Gynec like William obstetrics and Munro Kerr’s operative Obstetrics, clearly state that no method of sterilization is entirely safe even if the woman undergone hysterectomy. Even after total or sub-total hysterectomy, there are chances of pregnancy (ectopic pregnancy). Failure, of sterilization due to natural causes would not provide any ground for claim.

7.      In view of the above, it cannot be said that failure of tubectomy of the complainant was on account of negligence of the respondent-opposite party. Indisputably, the tubectomy operation of the complainant was performed in 2005. She gave birth to a female child on May 24^th, 2013, that is, after about eight years. The facts and circumstances of the case make it clear that the failure of sterilization operation was not on account of negligence of the surgeon but due to natural causes and the same would not provide any ground for claiming any compensation. Thus, no case for interference in the impugned order is made out.

8.      Hence, the appeal is dismissed.   

CL