IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC/88/2015 .
Date of Filing: 10.07.2015. Date of Final Order: 24.11.2017.
Complainant: Smt. Bahari Tudu, W/O Sri Dipak Tudu, Vill. Bichhuti, Rainda, P.O. Rainda,
P.S. Nabagram, Dist. Murshidabad.
-Vs-
Opposite Party: 1.Chief Medical Officer of Health of Murshidabad at Berhampore.
P.O.&P.S. Berhampore, Dist. Murshidabad.
2. Block Medical Officer of Health, Nabagram B.P.H.C,
Nabagram, P.S. Nabagram, P.O. Nabagram , Dist. Murshidabad.
Present: Sri Anupam Bhattacharyya …………………. President.
Smt. Chandrima Chakraborty ……………………..Member.
Sri Manas Kumar Mukherjee …………………….. Member.
FINAL ORDER
Sri Anupam Bhattacharyya- President.
The instant complaint has been filed by the complainant U/S 12 of C. P. Act, 1986 praying for compensation of Rs.50, 000/- along with interest for harassment and mental pain and agony.
The complainant’s case, in brief, is that Mini-lap Operation of the complainant was held on 6.03.2008 by OP no.2 and was discharged on 7.3.2008 and for that she was admitted in the hospital on 5.03.2008. Due to defective operation the complainant was further conceived and gave birth to a female baby named Kabari Tudu on 06.03.2010 at Murshidabad District Hospital for the negligent operation of the OP and they are liable to pay compensation. The complainant claimed compensation through Advocate letter dt. 22.4.15 and in reply by Op no.2 by letter dt. 24.4.15 admitted that the operation was done on 6.3.2008 by the M.O. was not in proper way and for that wrong operation the complaint was further concerned. Hence, the instant complaint case.
The written version filed by the OP, in brief, is that the complainant was admitted at Nabogram BPHC for performing a sterilization operation. She executed a consent form by putting her L.T.I. The doctor of BPHC performed the operation with due diligence and the operation was successful. There was no laches on the part of the doctor and this OP party. Even if the operation be successful then also due to natural causes which vary between 0.3% to 7% the petitioner may again be conceived. Onus is upon the petitioner to prove that there was negligence on the part of the doctor. 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 seeks otherwise she would not claim compensation. The Opposite Party was always serious about the operation. The complainant is not a consumer as she has not paid any amount to the Opposite party. She cannot be treated as consumer under the C.P. Act. The complaint is liable to be rejected. Hence, the instant written version.
Considering the pleadings of both parties the following points have been raised for the disposal of the case.
Points for Decision.
- Whether the petition is maintainable in its present form and in law?
- Whether the complainant has cause of action to file the present case?
- Whether the complainant is a consumer under the C. P. Act, 1986?
- Whether the petition is barred by law of limitation?
- Whether the complainant is entitled to get relief as prayed for?
- To what other relief/reliefs the complainant is entitled to get?
Decision with Reasons.
Point Nos. 1 to 6.
All the points are taken up together for the sake convenience.
The instant complaint is for compensation of Rs.50, 000/- along with interest for harassment and mental pain and agony.
The complainant’s main case is for compensation for negligent ligation operation on 6.3.2008 Murshidabad District Hospital. The complainant became pregnant after Ligation Operation and gave birth to a female child.
On the other hand, the case of OP No.1, in brief, is that the operation was held successfully after obtain consent letter. Even if the operation was successful, there are natural causes (0.3% to 7%) for further pregnancy and in that case the doctor is not liable for the failure.
To prove the case the complainant has adduced evidence-on-affidavit along the relevant documents in support of her case and also has deposed on dock and has been cross-examined by the OP.
In this case the OP has not adduced any evidence or examined any witness from their side.
Admittedly, after ligation operation one girl child was born which is evident from the discharge certificate after delivery and birth certificate of the child.
Regarding payment of compensation for failure of ligation operation of the complaint, the complainant has filed a document No. BMOH/NBG/MSD 472 dt. 24.04.2015 sent by the OP No.1 addressing the Ld. Lawyer for the complainant wherefrom it appears that the complainant applied for getting compensation due to failure of Ligation Operation and the same was forwarded to the C.M.O.H, Murshdiabad vide Memo No. 315 dt. 13.04.2012 wherefrom her prayer petition has been sent to ICICI, Insurance Company Ltd vide Memo No. CM/MSD/FW/3665 dated 07.05.2012.
It is also evident from the said letter that BMOH sent reminder to the office of the CMOH , Murshidabad but no reply has been yet been received.
From the said letter, it is clear that for getting compensation, the matter was moved but no result.
Considering the argument advanced by the Ld. Lawyer for the OP that for this type of failure the conducting doctor cannot be treated solely responsible as there is every chance of failure from 0.3% to 7% due to natural causes.
In this case the complainant has not adduced cogent evidence showing medical papers as to the specific negligence of the conducting doctor in the Ligation operation. In her cross-examination the P.W 1 has only stated that after ligation operation she was conceived.
She also deposed that after being conceived she consulted with Dr. Hiren Roy, Dr. Ranjit Roy Chowdhury and thereafter I was examined at Nabagram BPHC where I was advised for abortion.
She also deposed that she did not agree with that.
Considering the evidence adduced by the complainant, specific negligence on the part of the conducting doctor for alleged allegation leveled against him, is not established but the question of further pregnancy of the complainant after ligation operation is established and for that the scope of getting compensation from the side of Government Authority, which was moved and pending.
So we can safely conclude that the complainant is entitled to get such relief for Rs.30, 000/-.
Considering the above discussions we find that all the points are disposed of on contest in favour of the complainant in part.
As such the complainant will get Rs.30, 000/- as relief from the OP No.1 i.e C.M.O.H, Murshidabad.
Hence,
Ordered
That the Consumer Complaint No. 88/2015 be and the same is hereby allowed on contest in part.
The complainant is entitled to get Rs.30, 000/- as relief from the OP No.1.
The OP No.1/CMOH, Murshidabad is directed to pay Rs.30, 000/- to complainant within 60 days from the date of this order, failing which the OP No.2 is to pay Rs.50/- per day’s delay as fine and the amount so accumulated shall be deposited by D.D in Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
