DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No. 680/2012

Smt. Indresh

W/o Shri Rajiv

R/o 17, Village Jona pur,

New Delhi-110047                                                          ….Complainant

Versus

The Director

AIIMS, Ansari Nagar,

New DelhiDroom Technology Pvt. Ltd.

                                                                                    ….Opposite Party

                                                Date of Institution                    : 26.12.2012     Date of Order                  : 30.01.2020

Coram:

Ms. Rekha Rani, President

Ms. Kiran Kaushal, Member

ORDER

Ms. Kiran Kaushal, Member

1. Briefly put the case of complainant is that she was admitted to AIIMS (OP) for Tubectomy Operation on 06.05.2008 after bearing her second child. Thereafter, she was given a sterilization certificate dated 13.05.2008. Complainant was assured by the OP that after the performance of this procedure she will not get pregnant again. However, on August, 2012 complainant got pregnant and was informed by OP on 04.09.2012 that tubectomy had failed and she had conceived. 
   1. It is averred that as complainant is from poor background she neither could afford nor desired any more children, therefore she went in for tubectomy in the year 2008. She was shocked when she conceived again in the year 2012.
   2. It is further stated that the complainant was further harassed by OP as she was instructed to stay without food and water on 04/09/12 on the pretext to perform MTP and resterilization. But was discharged on 05/09/12 without conducting the surgery and not assigning any reason for the same.
   3. Thus, aggrieved by the circumstances above, the complainant approached this Forum with the following prayers:-

1. Refund/ pay Rs.15 lakhs along with interest @ 18% per annum;
2. To pay compensation of Rs.2,50,000/- to the complainant towards mental agony, harassment and pain.
3. To award cost and legal fee in favour of the complainant.

2. OP resisted the complaint inter-alia stating that the complainant was having two male and one female child. The younger child was one and half years old at the time of ligation on 06.05.2008. It is submitted that the complainant was operated upon for tubectomy and was discharged on 06.05.2008. The complainant was also granted the sterilization certificate on 13.05.2008.
   1. It is next submitted that the complainant willingly gave written consent agreeing for sterilization operation and it was clearly stated in the Consent Form that the sterilization operation can sometimes fail for which hospital authority or surgeon will not be held responsible. Further it is a matter of common practice that the hospital authorities duly explain all their patients about the possibility of failure of the said operation. Even in this case the complainant was informed and she out of her own free will consented for the surgery.
   2. It is next submitted that the failure of sterilization is well known throughout the world depending on the techniques or methods chosen for performing the surgery out of the several prevalent and acceptable one’s in medical science.
   3. OP has further submitted that the failure rate, 5 years cumulative 13/1000 (includes laparoscopy and laparotomy) 9 Ref: U.S. Collaborative Review of Sterilization. An J. Obstet Gynecol 1996:174:1161-8) depending on the techniques or methods chosen for performing the surgery out of the several prevalent and acceptable one’s in medical science. It is next stated that the patient was explained about the possibility of the failure of sterilization despite that the patient willingly gave her consent for the operation.
   4. It is next submitted that the complainant had come for MTP and re-sterilization after failure to gynae department on 04.09.2012. It is further stated that the re-sterilization is usually done by mini laparotomy for which general anesthesia is required. It is for this reasons she was kept fasting overnight on 04.09.2012. It is submitted that the complainant was planned for MTP and resterilization on 05.09.2012 but due to the operation theatre being not available and same being used for emergency cesarean section, the complainant was counseled and asked to come on 11.09.2012 as mentioned in the discharge slip to be posted in next OT.
   5. OP further submits that the sterilization operation is not foolproof as tuber ligation is approximately 99% effective in the first year following the procedure. In the following years the effectiveness may be reduced slightly since the fallopian tubes can, in some cases reform or reconnect which can cause unwanted pregnancy. Hence denying the facts that the OP and its staff have committed any deficiency, it is prayed the complaint be dismissed with heavy cost.
3. Rejoinder to the written statement of OP and evidence by way of affidavit are filed by the complainant wherein the averments made in the complaint are reiterated. OP has not filed any evidence.
4. Written arguments are filed on behalf of the complainant.
5. Submissions made by the complainant are heard and material placed on record is perused carefully.
6. Admittedly, tubectomy operation was conducted on the complainant on 06.05.2008 and sterilization certificate dated 13.05.2008 was issued by OP to the complainant. The complainant had conceived despite the sterilization and on 04.09.2012 after examination by the doctors of OP it was found that tubectomy had failed and the complainant was pregnant.
7. The complainant is claimed to be an illiterate lady coming from a poor family background who got the tubectomy operation done by OP by paying some nominal registration fee.
8. On perusal of the documents appended with the complaint at the back side of page No. 8, it is clearly mentioned that the complainant was explained the risk of ligation failure which is duly signed by the complainant. The said consent is as follows:-

“We have been explained the risk of ligation failure. We shall not hold hospitals, authority/concerned surgeon responsible for the same.”

9. Even if the complainant is illiterate, there is no reason to believe that the complainant was not explained about the risk of failure of tubectomy which is duly signed by the complainant.
10. The second grievance that the complainant has is that she was kept fasting on 04.09.2012 and was discharged on 05.09.2012 without performing the operation. The said grievance have been justifiably explained by OP by stating that mini laparotomy was to be performed for which general anesthesia is required and that is why she was kept fasting overnight on 04.09.2012. However, the procedure could not be performed as the same OT was being used for emergency cesarean section. It is a matter of common knowledge that OP is a State run hospital with huge footfall and large number of people from all over India come to OP hospital for  recourse to their medical problems. In such circumstances sometimes due to lack of infrastructure or some other problems OP unwillingly has to reschedule the surgeries.
11. Further the complainant’s claim that she had to give birth to the unwanted child and had to bear financial burden of bringing up the child hold no water in the eye of law.

The Hon’ble Supreme Court of India in State of Punjab Vs Shif Ram and Another reported in 2005 SC 3280 has held that :

“the cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of the conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed.”

12. In view of the above, this forum is of the opinion that the complainant has failed to prove any deficiency in service or negligence on the part of OP and accordingly, we dismiss the complaint with no order as to costs.
13. However, the complainant is within her right to claim the compensation to be awarded under the Government Insurance Family Planning Scheme if she qualifies for the same and not, if already availed.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.  

Announced on 30.1.2020