Haryana

Yamunanagar

CC/442/2013

Paramjit Kaur W/o Rajesh - Complainant(s)

Versus

C M O ,mukand Lal General Hospital - Opp.Party(s)

D.S.Khurana

13 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                         Complaint No. 442  of 2013.

                                                                                         Date of institution: 14.06.2013.

                                                                                         Date of decision: 13.07.2016.

Paramjit Kaur aged about 30 years wife of Shri Rajesh, resident of Ganoli Gate, Chhachhrauli, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                                                              …Complainant.

                                    Versus

1. C.M.O. Mukand Lal General Hospital, Yamuna Nagar.    
2. Director General, Health Services, Haryana.  
3. State of Haryana, through Civil Surgeon, Yamuna Nagar.   

                                                                                                                                                         …Respondents.  

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. D.S.Khurana, Advocate, counsel for complainant.   

              None for respondents.

 

ORDER

 

1.                     Complainant filed the present complaint under section 12 of the Consumer Protection Act, 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that she is a household lady and is an illiterate and was already having three children. On the allurement of the staff of respondents (hereinafter referred as OPs), the complainant went to hospital for carrying out the tubectomy operation on 25.03.2011 and at the time of operation it was assured to her that the process would be completely successful and believing assertions of the OP No.1 to be true, she underwent the tubectomy on 25.03.2011 itself. After one month, the complainant felt some movement and pain in her. On this complainant went to the hospital of Op No.1 and after checkup, the complainant was informed that everything was normal and there was no problem and the complainant returned to her home. In the month of June, 2011, the complainant came to know that she is pregnant and when it became quite evident, the complainant again visited the hospital of OP No.1 wherein the OP No.1 confirmed the pregnancy and told the complainant that the operation is a failure. The OP No.1 promised to her that they will pay compensation to her. Thereafter, the complainant had to give birth to the fourth female child on 10.12.2011 in the hospital of OP No.1. As such, there was a grave deficiency in service on the part of OP No.1. Complainant issued a legal notice dated 01.12.2011 to the OPs to which no reply was furnished by the Op No.1. Earlier the complainant had filed one suit before the permanent Lok Adalat for public utility services but the same was withdrawn.  Hence, this complaint.      

3.                     Upon notice, OPs appeared and filed its written statement by taking some preliminary objections that the present complaint is not maintainable as there is no relationship of consumer and service provider between the parties.  The complainant did not hire the services of the OPs against payment because such operation was conducted free of costs and the person who gets such operation conducted is given incentive of Rs. 600/- for undergoing tubectomy operation, besides transportation charges of Rs. 25/-; no locus standi to file the present complaint. It has been mentioned that the Government of India obtains insurance policy in respect of the patients who undergo such operation, the patient gets Rs. 30,000/- under the said insurance scheme. Even otherwise, there is no negligence in performing the tubectomy operation of the complainant. Moreover, it is experienced by the Medical Authorities that about 3% cases are likely to be unsuccessful according to medical jurisprudence. The cause of failure of the operation may be that tied fallopian tubes of some cases get separated from the tied segments and are recanalised in a natural process and such cases may conceive and become pregnant. The case of the complainant may also be of the same nature. Moreover, the complainant came to M.L.General Hospital, Yamuna Nagar on 25.03.2011 for adopting permanent family planning method by way of getting herself sterilized in family planning camp with motivator and before operation, she was told that 100% family planning sterilization operations are not successful if the precautions advised by the doctor are not observed. In case of non-success of the operation, such person or any member of her family cannot hold responsible the Surgeon or the Govt. Agency, who performed the operation. On merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.  

4.                     To prove the case, complainant tendered into evidence her affidavit as Annexure CW/A and documents such as Photo copy of information sought under RTI Act vide letter dated 29.9.2011 as Annexure C-1, Photo copy of backward class certificate as Annexure C-2, Photo copy of Birth certificate as Annexure C-3, Photo copy of sterilization certificate as Annexure C-4, Photo copy of ultrasound findings as Annexure C-5 and closed her evidence.

5.                     On the other hand, OPs failed to adduce any evidence being last opportunity, hence their evidence was closed by court order on dated 11.07.2016.

6.                     We have heard the learned counsel for the complainant and have gone through the pleadings as well as documents placed on the file.

7.                     The documents placed on record may go to show that complainant Smt. Paramjit Kaur underwent tubectomy operation on 25.03.2011 vide OT No. 470/39 dated 25.03.2011 (Annexure C-4) and she gave birth to a child on 10.12.2011. However, there is no document on the file which may go to show that the complainant might have paid any consideration to the OPs Doctor for undergoing the operation in question performed by the concerned doctor. Under the provision of Consumer Protection Act, services without any consideration is no service. So, we are of the considered view that complainant does not fall within the definition of consumer as defined under section 2(1)(d) of the C.P.Act because she hired the services of the OPs without any consideration. The complainant could have got the pregnancy terminated even under the law. There is no evidence on record to show that OPs might be negligent in performing the operation or that there might be any deficiency in service on the part of the OPs. In so many medical books, it has been observed that such type of operations are not 100% successful and there are always chances of failure of 1% or 2% cases. The complainant has filed her own affidavit Annexure CW/A by way of evidence which has not been corroborated with any medical evidence. Negligence must be established and not presumed. The complainant has not adduced any material either in the shape of expert opinion or any oral evidence. Negligence must be manifest and apparent and it must be shown that as a result of some overlooking or as a result of some basic precautions not having been taken while performing the operation, the sterilization has taken. As per “Principle of Gynecology” by Sir Norman Jaffcoate 4^th Addition in this treatise while dealing with the realiability of sterilization, it has been observed that “ even when tubal occlusion operations are competently performed and all technical precautions taken, intra- uterine pregnancy occurs subsequently in 0.3% cases. This is because a ovum gains access to supermatozoa through a recanlized inner segment of tube” Similarly, in Operative Gynecology by Te Linday 6^th Addition page No. 426 clause II where it was observed that “ even if both tubes are properly ligated 1 to 20 per 1200 women may conceive in future. Similarly in Shaw’s Text book of Operative Gynecology it was observed that although the procedure may seem to be relatively simple number of failures reported in the literature is remarkably high. The cause of failure of a correctly performed operation is recanlisation of divide fallopian tube. Similarly in “ Text Book of Obstetrics page No. 569 Chapter 35 Population Dynamics and Control of Conception where it was observed that failure rate; the overall failure rate in tubal sterilization is about 0.7%.

8.                     In the present case, the complainant has miserably failed to prove any medical negligence on the part of the treating doctor. The complainant gave birth to the child on 10.12.2011 whereas her tubectomy operation was done on 25.03.2011. It means that she gave birth to a child before 9 months which is not generally possible because period is 9 months plus. From the averments made in the complaint, which shows that complainant was pregnant at the time of operation and due to some reasons best known to her, she gave wrong history about LMP to the operating surgeon as 20.03.2011 which is duly evident from the declaration form Annexure C-1. There was early in pregnancy which cannot be diagnosed at the time of tubectomy operation. According to the medical science in such type of cases doctors depend on the history of LMP given by the patient. On the other hand, if the complainant had made her mind for no more child she ought to have come to the operating surgeon soon after she learnt of her pregnancy and if she did not want to deliver the child she could have availed the facility of medical termination of pregnancy under section 3 of the MTP Act 1971 offered by the Government free of costs. The complainant did not consult the operating surgeon any time before delivering the child inspite of directions and guidance given by the doctors goes to show that she wanted the child. So, from the facts it is clear that no deficiency in service has been proved on the part of the OPs on record.

9.                     Learned counsel for the complainant has placed reliance upon the authority cited as 2001(1) CLT Page 35 State of Haryana and others Versus Smt. Santra, Supreme Court of India. We have carefully gone through this authority and are of the considered view that facts of the present case are not covered by the facts of the case law cited by the complainant’s counsel because in that case medical negligence on the part of the doctor was proved by evidence before the Civil Court on the contrary reference can be taken from the authorities titled as 2001(1) CLT page 499 (Punjab), 1999(2) CLT Page 148 (Punjab), 1998(1) CPC page 469 Gujrat, 1998(1) CPC page 2016 (U.T.). In these authorities it has been held that medical negligence must be proved by expert evidence and further it is settled that pregnancy after sterilization is not unknown and chances of failure of operation cannot be ruled out.

10.                   Resultantly, in view of the above detailed discussion, we are of the considered view that complainant has failed to prove any medical negligence on the part of the OPs. Further, as per medical jurisprudence the failure can occur to some percent. So, there is no deficiency in service on the part of the OPs in performing the family planning operation upon the complainant. Therefore, there is no merit in this complaint and the complaint is hereby dismissed with no order as to costs. However, the complainant is at liberty to approach to the Ops to get the benefits as provided by the Government of India as this fact has been admitted by the OPs in para No.9 of the written statement (If not done so earlier). Copies of this order be sent to the parties concerned free of costs. File be consigned to the record room after due compliance. 

Announced: 13.07.2016

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER