DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KANDHAMAL, PHULBANI
C.C.NO.51 OF 2016
Present: Sri Rabindranath Mishra - President.
Miss Sudhiralaxmi Pattanaik - Member .
Sri Purna Chandra Tripathy - Member .
Sri Bibhuti Bhusan Maharana, aged about -49 years
S/O: Sri Niranjan Moharana Village - Paburia
PS: Sarangada, Dist: kandhamal ……………………….. Complainant.
Versus.
1. C.D.M.O
Dist. Head Quarter Hospital, Phulbani
Dist: Kandhamal.
2. Dr. Satya Marayan Mishra
Operating Doctor At Present, C.D.M.O, Boudh.
3. Chairman, Family Planning Indemnity Scheme
Under Govt of India represented by C.D.M.O, DHH, Phulbani.
4. R.M, Oriental Insurance Company Ltd. (OICL)
Alok Bharati Tower, Sahid Nagar, BBSR, Odisha.
5. Secretary, Family Welfare Department
Odisha, Bhubaneswar. …………………………….. OPP. Parties.
For the Complainant: Sri Krishna Ch. Senapati, Advocate, Phulbani and his Associates.
For the OPP. Parties: For O.P No.1, 2, 3 and 5: A.G.P, Phulbani.
For O.P No.4: V.V.Ramdas, Advocate, Phulbani
Date of Order: 30-10-2017
O R D E R
The case of the Complainant in brief is that he got married in the year 1998 and blessed with two children aged about 18 years and 13 years respectively. As his financial condition was not sound, he went under sterilization operation after completion of all formalities on
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14-07-2014 being advised by the doctor but after sterilization operation the wife of the Complainant had given birth to the 3rd child on 01-10-2016. In the year 2015 when the Complainant came to know about the pregnancy of his wife he brought it to the notice of the Ashadidi and concerned doctor. But they refused flatly to terminate the pregnancy of the wife of the Complainant. After the birth of 3rd child the Complainant is suffering from mental agony and misunderstanding is developed between the couple. It is very difficult to maintain the 3rd child being a poor person. Hence, he has filed this complaint against the O.Ps for a compensation of Rs. 5, 00000/- (Five lacs) including litigation cost and other relief.
The case of the O.Ps No. 1, 2, 3& 5 as per their joint version is that the alleged fact of pregnancy was not reported to the O.Ps. The Complainant underwent Vasectomy surgery on 14-07-2014 at health Post Paburia under CHC Tikabali on his own consent .He came to Health Post with the motivation of Philimohan Pradhan. The Complainant was thoroughly explained pros and corns of operation. Particularly clause (h) & (1) of application-cum-consent form for sterilization operation wherein it has been clearly mentioned that “Vasectomy does not result in immediate sterilization and he agree to come for semen analysis 3 months after the operation” to confirm the success of sterilization surgery. But the Complainant did not turn up to confirm the success nor for regular post operation check up. The Complainant read and understood the facts contained in “application-cum-consent form for sterilization “written in Oriya and signed it before going to operation table. After operation he had received incentive allowance of Rs. 1100/- and motivator Philimina Pradhan had also received Rs. 200/- towards motivation allowance. On receipt of report dt. 29-08-2016 regarding the failure of vasectomy operation of the Complainant from the H.W (7) Gyanasundari Nayak the M.O, I/C, CHC Tikabali reported the matter to ADMO (FW) Kandhamal for onward action. Then the matter was placed before District quality assurance committee to take follow up action in the matter as per guideline laid down by Govt. The Said committee decided to examine seminal fluid test as such complainant was intimated to attend Dist. Head Quarters Hospital on 12-12-2016 at 11.00 A.M positively but he did not turn up for examination. The seminal fluid test is only test to confirm the failure of the sterilization operation. As the Complainant did not turn up for seminal fluid test it can not be said that sterilization operation was unsuccessful.
The further case of the above O.Ps is that the Complainant is not a consumer as per decision given by the National Commission in the revision petition bearing No. 4734/2012 between Major Singh Vrs State of Punjab. It was held that the person avails facility of medical treatment in Government Hospital is not a consumer and no complaint is maintainable under Consumer Protection Act.” Hence they prayed to dismiss the complaint with costs.
The case of the O.P No.4 as per his version is that the Insurance Company has no role to play in this case. The Complainant have not whispered anything about the involvement of this Insurance Company in the matter .He has neither paid any premium nor made any insurance policy in his name before the O.P No.4 . The further case of the O.P No.4 is that the Consumer Forum has no jurisdiction to adjudicate the issues of this case and the Complainant is not a consumer within
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the meaning of C.P Act for which the complaint is not maintainable both in fact and in law. There is no premafaice case against the Insurance Company and as per the judgment of National Commission “a person who avails facility of medical treatment in Government Hospital is not a consumer and no complaint is maintainable under Consumer Protection Act”. Hence, the Complaint is liable to be dismissed with cost.
During course of hearing the Complainant has filed an affidavit in support of his case. He was examined and cross examined. Exit-1 to Exit -10 were marked on behalf of the Complainant upon the documents filed by him. Ext-A & B were marked on behalf of the O.P No.1, 2,3&5 on the petition filed by the learned A.G.P appearing on behalf of the said O.Ps.
We have gone though the complaint petition, the Joint version filed by the O.PNo1, 2, 3&5 and the version of O.P No.4 , the affidavit filed by the Complainant, deposition, all exhibits and other documents filed by both the parties in support of their case. We have also heard the Complainant, his advocate, the learned A.G.P appearing on behalf of O.P No.1, 2, 3&5 and the learned counsel appearing on behalf of O.P No.4.
It is contended by the learned A.G.P and the Counsel of O.P No.4 that the Complainant was under treatment in the Government Hospital and he has not paid anything towards his operation, for which he is not a Consumer as per provisions of C.P Act. There is no evidence on behalf of the Complainant that he had deposited any amount for his sterilization operation. He has also not adduced any evidence regarding the Insurance Coverage of the said operation under O.P No.4, the Insurance Company. It is not established by the Complainant that sterilization operation is 100 % success and it is failure chances are 0.3 to 7 % as per the Judgment of the Honorable Apex Court in the case of State of Punjab Vs.Shiv Ram and others (2005)(4) RCR ( criminal) 93. So, as per the said decision the sterilization do not give 100 % guaranty. Therefore the negligence of the operating doctor is not proved by the Complainant. The learned Advocate of the Complainant submitted that there is instruction of the Government of India for monetary payment in case of such operation is unsuccessful but no such instruction of the Government have been filed by him. Hence, we do not see any merit in the complaint petition filed by the Complainant and the same is here by dismissed on contest without any cost. In case there is instruction of the Government for payment in case of unsuccessful operation then, the Complainant can prefer his claim before the competent authority as per provision.
The C.C is disposed of accordingly. Supply free copy of this order to both the parties at an early date.
MEMBER MEMBER PRESIDENT
