IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/102/2014
Date of Filing: Date of Admission: Date of Disposal:
06.08.2014 18.08.14 31.08.2022
Complainant: Pinki Bibi,
W/o – Jhantu SK,
Vill- Purbogram
P.O. & P.S- Salar
Dist-Murshidabad, PIN-742401
-Vs-
Opposite Party: 1. Block Medical Officer of Health
P.O. & P.S.- Salar,
Dist- Murshidabad,
Pin-742401.
2. Dr. Satyajit Sarkar,
Block Medical Hospital
P.O. & P.S.- Salar,
Dist- Murshidabad,
Pin-742401.
Agent/Advocate for the Complainant : Bidishya Sarkar
Agent/Advocate for the Opposite Parties : S.S.Dhar
.
Present: Sri Ajay Kumar Das…………………………..........President.
Sri. Subir Sinha Roy………………………………….Member.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Sri. Ajay Kumar Das, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Pinki Bibi (here in after referred to as the Complainant) filed the case against Block Medical Officer of Health of Salar (here in after referred to as the OP) praying for compensation alleging deficiency in service.
The material facts giving rise to file the complaint are that:-
The complainant was admitted at Salar B.P.H.C. Murshidabad on 12.02.2014 and she underwent an operation namely Ligation on 13.02.2014 and she was discharged from the said hospital on 14.02.2014. The complainant was assured that the Ligation operation done perfectly and she will not conceive in future.
But prior to such operation she got the urine tested from Asha Health Centre at Salar and the said centre diagnosed that no pregnancy was found out on urine test both on 10.02.2014 and 12.02.2014. The O.P. No. 2 without urine test performed the tubactomy on 13.02.2014.
Thereafter, the complainant being conceived went to the nearest hospital where it was detected that there was last menstruation on 20.12.2013 and expected date of delivery is 27.09.2014. It is evidenced from the clinical test that while tubactomy was done the complainant conceived for 3 months and without terminating the pregnancy the O.P. No. 2 in utter negligence performed tubactomy. But in fact no result yielded. Negligence easily can be attributed to O.P. No. 2 while he did not take the possible care before the operation. The O.P.s are responsible for the negligence of the tubactomy and the complainant suffered mental pain and agony as well as bodily pain while undergoing operation yielding no result.
The complainant is entitled to get the compensation of Rs. 99,000/- for the act of negligency and the said amount is payable by the O.P.s.
The O.P.s failed to pay a sum of Rs. 99,000/- and the same remains due and is lying unpaid by the O.P.s inspite of repeated demand by the Complainant.
Therefore, under compulsion and finding no other alternative the complainant filed this case before this Commission with a prayer to direct the O.P.s to pay a sum of Rs. 99,000/- for compensation and a sum of Rs. 1,000/- for cost and for any order as your Honour would deem fit and proper.
Defence Case
After service of the notice the O.P. appeared by filing written version containing inter alia that the petitioner is not a consumer under the Definition of Consumer Protection Act. The petitioner never paid any amount against the ligation Operation. So, the case is not maintainable.
The O.P. No. 2 before performing the operation found that the petitioner was not pregnant on the date of operation. The petitioner had admitted the fact in para 3 of the petition. The petitioner was admitted at Salar B.P.H.C. on 12.02.2014. On 13.02.2014 the ligation was done and she was discharged from the B.P.H.C. on 14.02.2014.
The report of urine speaks that at the time of operation the petitioner was not pregnant.
There was no negligence on the part of this Opp. Party. Even if the Operation be successful then also due to natural causes which is vary between 0.3 % to 7 % the petitioner may again be conceived. So mere pregnancy after ligation operation cannot prove that there was negligence on the part of the Doctor. Onus is upon the petitioner to prove that there was negligence on the part of the Doctor. The methods of sterilization so far known to medical science are not 100 % safe or secure. Before the operation the petitioner signed in an application for sterilization operation and consent form in which she undertook that if she became pregnant then she would abort within two weeks otherwise she would not claim compensation. The O.P. was always serious about the operation and the authority took proper care towards the petitioner. So the petition is liable to be rejected.
On the basis of the complaint and written version the following points are framed for proper adjudication of the case:
Points for decision
1. Is the Complainant a consumer under the provision of the CP Act, 1986?
2. Is the Complainant entitled to get any relief, as prayed for?
Decision with Reasons:
Point no.1 & 2
Both the points are taken up together for sake of convenience and brevity of discussion.
Ld. Advocate for the complainant submits that O.P. No. 2 Dr. Satyajit Sarkar without urine test performed the tubactomy on 13.02.2014. Thereafter, the complainant being conceived went to the nearest hospital where it was detected that there was last menstruation on 20.12.2013 and expected date of delivery is 27.09.2014. It is evidenced from the clinical test that while tubactomy was done the complainant conceived for 3 months and without terminating the pregnancy the O.P. No. 2 in utter negligence performed tubactomy. But in fact no result yielded and negligence easily can be attributed to O.P. No. 2 while he did not take the possible care before the operation. The O.P.s are responsible for the negligence of the tubactomy and the complainant suffered mental pain and agony as well as bodily pain while undergoing operation yielding no result.
Ld. Advocate for the Opposite Parties submits that prior to such operation the complainant got the urine tested from the Asha Health Centre at Salar and the said centre diagnosed that no pregnancy was found out on urine test both on 10.02.2014 and 12.02.2014. But in spite of that complainant has no allegation against the said Asha Health Centre.
Ld. Advocate for the Opposite Parties further submits before this court that the petitioner is not a consumer under the Definition of Consumer Protection Act. The petitioner never paid any amount against the ligation Operation. So, the case is not maintainable.
In support of this contention he cited a decision of the National Consumer Disputes Redressal Commission reported in Major Singh vs State of Punjab & Ors. on 5th November, 2014. Ld. Advocate for the OPs drew our attention to Para 6 of the said decision which may be quoted here :
“6. Learned State Commission placed reliance on judgment of Honble Apex Court in Law Finder Doc Id # 71349 = 1996 (1) Consumer Law Today 1 (SC) Indian Medical Association Vs. V.P. Shantha & Ors. and held that complainant does not fall with purview of consumer. Paragraph 44 of the aforesaid judgment runs as under:
The other part of exclusionary clause relates to services rendered “free of charge”. The medical practitioners, Government hospitals/ nursing homes and private hospitals/nursing homes (hereinafter called “doctors and hospitals”) broadly fall in three categories :-
- where services are rendered free of charge to everybody availing the said services.
- where charges are required to be paid by everybody availing the services and
- where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges.
There is no difficulty in respect of first two categories. Doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of “service” under Section 2(1) (o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2(1) (o) of the Act. The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1) (o) of the Act.
In the light of aforesaid observation it becomes clear that where services are rendered free of charge to everybody availing the said services, patient does not fall within purview of consumer. In the case in hand, learned Counsel for the petitioner could not place any document on record to prove that OP No. 2, where OP No. 3 was working as surgeon was not rendering services free of charge to everybody and in such circumstances, complainant does not fall within purview of consumer.
Ld. Advocate for the Opposite Parties cited another decision reported in AIR 2005 Supreme Court 3279.”
Para-3 of the said decision is required to be mentioned here :- “A 3-Judge Bench of this Court has held in State of Punjab v. Shiv Ram and others (C.A. 5128 of 2002, decided on August 25,2005) that child birth in spite of a sterilization operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognized the percentage of failure of the sterilization operation due to natural causes to be varying between 0.3% to 7 % depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognized by medical science. Thus, the pregnancy can be for reasons dehors and negligence of the surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation. Then the question of the State being held vicariously liable also would not arise. The decrees cannot, therefore, be upheld.”
Ld. Advocate for the Opposite Parties cited another decision reported in AIR 2005 Supreme Court, 3280 wherein it is held :-
“Medical Council Act (102of 956), S. 20-A – Doctor – Negligence – Compensation – Pregnancy despite sterilization operation – Compensation can be awarded only if failure of operation is attributable to negligence of doctor – Failure due to natural causes do not provide ground for claim – If claimants opt for bearing child despite failure of operation – They cannot claim compensation for its upbringing.”
Considering the facts and circumstances of the case and keeping in mind the submissions of both sides and the legal position discussed above we are of the view that the complainant has failed to prove negligence on the part of the doctor concerned. The point to be noted is that the complainant is not a consumer in view of the matter discussed above. The instant complaint case is liable to be dismissed.
Reasons for delay
The Case was filed on 06.08.2014 and admitted on 18.08.2014. This Commission tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act, 1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case is dismissed.
Fees paid are correct. Hence, it is
Ordered
that the instant complaint case No. CC/102/2014 be and same is dismissed on contest against the Opposite Parties but without any order as to costs.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
