The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the C.D.M.O, Head Quarter Hospital, Balasore, O.P No.2 is the A.D.M.O, Family Welfare, Head Quarter Hospital, Balasore and O.P No.3 is Dr. Anup Kumar Ghosh, Doctor, Head Quarter Hospital, Balasore.

                                    2.  The case of the Complainant in brief is that the Complainant was admitted in District Head Quarter Hospital, Balasore for delivery of her second child on 19.09.2013 vide indoor register No.28013, dt.19.09.2013, where the second child was born on 22.09.2013 and as per consent by the Complainant along with her husband, the O.P No.3 conducted family planning operation on 22.09.2013 of the Complainant and was discharged on 28.09.2013. The Complainant has received Govt. fees towards born of child and family planning operation from District Head Quarter Hospital, Balasore and also discharge certificate. But, on 20.02.2014, the Complainant as per advice of O.P No.3 tested her urine disclosing that the Complainant was pregnant, thereby the family planning operation was failed and accordingly, the O.P No.3 prescribed few medicine to terminate the pregnancy on 24.02.2014. Thus, the Complainant in order to confirm about her pregnancy consulted two different doctors on 25.02.2014, where she was confirmed about her pregnancy and also confirmed from another doctor on 03.03.2014. The Complainant has spent a huge amount for said family planning operation and is not prepared for the third issue. On the other hand, good sum is required for termination of pregnancy and also the Complainant is not prepared for termination of pregnancy, since she is weak due to her recent delivery for second issue. The Complainant lost Rs.3.00 Lacs (Rupees Three Lacs) only approximately due to the fault of the O.Ps and the Complainant after confirming about her pregnancy for fault of the doctor had been to O.P No.3 in repeated occasions, but the O.Ps did not respond the allegation of the Complainant, which amounts to deficiency-in-service by the O.Ps. The Complainant has prayed for payment of Rs.3.00 Lacs (Rupees Three Lacs) only due to negligence of duty by the O.Ps.

                                     3. Written version filed by the O.Ps through Addl. Govt. Pleader, where they have denied on the point of maintainability, Consumer as well as its cause of action. Further, written version filled by the O.Ps disclosing that the Complainant is neither a Consumer under the O.Ps nor she has paid any consideration amount to avail the opportunity, rather she is only a beneficiary for Health and Family Welfare Department. But, it is a fact that the Complainant has undergone sterilization operation (Tubectomy) on 22.09.2013, but as per statement of the Complainant within 5 months i.e. on 20.02.2014, it was detected that she was pregnant. Auto recanalization, presence of third tube and adhesive are major factor, which creates failure. The sterilization operation is a National programme and possibility of failure is there according to the text book of Gynecology written by Dr. D.C Dutta that “the rate of failure in context of sterilization operation is 0.1 to 0.3%. Such type of pregnancy after tubectomy operation by a qualified doctor is not due to negligence and carelessness of the doctor rather it is an unfortunate accident, which had occurred due to negligence of Complainant. And before her tubectomy operation, she had given the following undertaking:-

(i) I also know that there are still some chances of failure of the operation, for which the operation doctor and health facility will not be held responsible by my relatives or me or any other person whomsoever.

(ii) In case the sterilization operation is failure, the insurance Company will pay Rs.30,000/- (Rupees Thirty thousand) only under the Family Planning Insurance scheme of Govt. of India to me, which will be acceptable to me.

Further, the O.Ps are no more responsible for failure of Tubectomy operation and the question of sustaining loss, which is mentioned in the complaint petition are imaginary one and the O.Ps are no way responsible to pay such claim amount.

                                      4. In view of the above averments of both the Parties, the points for determinations of this case are as follows:-

(i) Whether this Consumer case is maintainable as per Law ?

(ii) Whether there is any cause of action to file this case ?

(iii) Whether the Complainant is a Consumer under the O.Ps as per C.P Act, 1986 ?   

(iv) Whether there is any deficiency of service on the part of the O.Ps to the Complainant ?

(v) To what relief the Complainant is entitled for ?   

                                      5. In order to substantiate her plea, the Complainant has filed certain documents as per list. The O.Ps have not filed any documents in their support. Perused the documents filed by the Complainant. It has been argued on behalf of the Complainant that the family planning operation of the Complainant was taken place by the O.P No.3 on 22.09.2013, but due to negligence by the O.P No.3, the Complainant became pregnant. As per advice of O.P No.3 on 20.02.2014, the Complainant tested her urine disclosing that the Complainant was pregnant and accordingly, the O.P No.3 prescribed few medicines for termination of the pregnancy of the Complainant on 24.02.2014. The Complainant in order to confirm about her pregnancy had consulted other two numbers of doctors on 25.02.2014 and on 03.03.2014, where she was confirmed about her pregnancy. After going to the O.P No.3-Doctor in repeated occasions, no fruitful response came out, for which the Complainant has filed this case in the Forum praying for compensation of Rs.3.00 Lacs (Rupees Three Lacs) only for negligence of  O.P No.3, who has operated the Complainant on 22.09.2013. On the other hand, neither the O.Ps nor the Addl. Govt. Pleader on behalf of them was present at the time of re-hearing of this case. According to the O.Ps, the Complainant is neither a Consumer under the O.Ps nor she has paid any consideration amount to avail the opportunity, rather she is only a beneficiary for Health and Family Welfare Department. But, it is a fact that the Complainant has undergone sterilization operation (Tubectomy) on 22.09.2013, but as per statement of the Complainant within 5 months i.e. on 20.02.2014, she was pregnant. According to D.C Dutta’s Textbook of Gynecology, the failure rate is 0.1%-0.5% in case of female sterilization. Occlusion by resection of a segment of both the Fallopian Tubes (commonly called Tubecotomy) is the widely accepted procedure in female sterilization. Similarly, in the Authority reported in Revision Petition No.2758 of 2008 in the case of St. Stephens Hospital through C.M.O., Delhi & Ors. (Vrs.) Smt. Shalini, where in it has been held by the Hon’ble National C.D.R Commission, New Delhi that the methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. The Medical Termination of Pregnancy Act, 1971 U/s.3 permits termination of pregnancy by a registered medical practitioner. This Law provides a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971. 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 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. So, if a woman opts for bearing a child, she cannot claim for compensation for expenses incurred on her. Furthermore, in this case, the Complainant does not come under the purview of the Consumer, being not paid any amount or promised to pay or partly paid any amount in view of Section-2 (d) of C.P Act, 1986.

                                     6. So, now on careful consideration of all the materials available in the case record and on the basis of principle laid down by the above Authority as discussed earlier, now this Forum come to the conclusion that this Consumer case is not maintainable in this Forum and there is no cause of action to file this case, for which the Complainant is not entitled for any relief as prayed for and accordingly, this Consumer case is liable to be dismissed. Hence, Ordered:-

                                                     O R D E R

                                         The Consumer case is dismissed on contest against O.Ps, but in the peculiar circumstances without any cost. 

                                         Pronounced in the open Forum on this day i.e. the 11th day of October, 2017 given under my Signature & Seal of the Forum.