Tamil Nadu

South Chennai

476/2008

HariKrishnan - Complainant(s)

Versus

Commissioner, Corporation of Chennai & others - Opp.Party(s)

J.RajMohan

07 Feb 2018

ORDER

                                                                                                                           Date of Filing  : 05.11.2008

                                                                          Date of Order : 07.02.2018

DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, CHENNA (SOUTH)

2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L,                    : PRESIDENT

                 TMT. K. AMALA, M.A. L.L.B.                                :  MEMBER-I

                DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

CC. NO.476 /2008

WEDNESDAY THE 7^TH DAY OF FEBRUARY 2018

                                              

Harikrishnan,

S/o. Elumalai,

No.36, Nalla Thambi Street,

Triplicane,

Chennai 600 005.                                                        .. Complainant

                                      ..Vs..

 

1. The Commissioner,

Corporation of Chennai,

Ripon Buildings,

Chennai 600 003.

 

2. The Health Officer,

Corporation of Chennai,

Ripon Buildings,

Chennai 600 003.

 

3. The Addl. Health Officer,

Zone-6, Triplicane,

Corporation of Chennai,

Triplicane,

Chennai 600 005.

 

4. The District Family Welfare Medical Officer,

District Family Welfare Bureau,

Corporation of Chennai, Chennai 600 005.

 

5. The Medical Officer,

Post Partum-Project/Sterilization Theatre Unit,

Corporation of Chennai,

Royapettah,

Chennai 600 014.                                              ..  Opposite parties.

 

 

Counsel for complainant           :  M/s. Rajmohan  

Counsel for opposite parties     :  M/s. S.Ezhilan       

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section  12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.5,00,000/- towards compensation for mental agony and to pay cost of the complaint.

1. The averments of the complaint in brief are as follows:

          The complainant submit that he married one Amudha on 25.2.2005  out of the said wedlock, two children namely Natesan aged 8 years and Mahesh Boopathy aged 7 years were born.  The complainant is employed as an Assistant in a computer Stationery Firm and earning a sum of Rs.3,000/- p.m and his wife is home maker.   The complainant after consulting his wife, has decided to undergo family planning operation  to his wife.   Since their income will be just sufficient to nurture their two children.   On 8.12.2001 the complainant’s wife Amudha admitted in the 4^th opposite party medical unit at Roayapettah and had undergone family planning operation and was discharged on 10.12.2001.  After due family planning operation the complainant’s wife became pregnant and gave birth to a third female baby namely Harshini on 22.1.2008.  Since the family planning operation performed by 4^th opposite party medical officer is defective which caused great mental agony and hardship to the complainant.      Hence the complainant issued legal notice, dated 28.3.2008 to the opposite parties calling upon them to compensate the  complainant for defective performance of family planning resulting the pregnancy and the child birth.    As such the act of the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant. 

2. The brief averments in the written version filed by the  5^th opposite party and adopted by the opposite parties 1 to 4 are  as follows:

The  opposite parties deny each and every allegations except those that are specifically admitted herein.   The opposite parties also state that after discharge  on 10.12.2001 the complainant wife did not turned up to the  hospital for periodical check ups.  Further she did not report to the hospital/sterilization unit about missing of her periods.   Had the complainant wife come to the hospital / sterilization unit immediately after missing her regular periods, termination of Pregnancy could have been done easily.  But in this case the complainant has opted to continue the pregnancy at her own will.  As such there was neither deficiency of service nor negligence on the part of the medical officer.   The opposite parties submit that as documented in the medical literature, there will be natural spontaneous reanalyzed of the tubes of 3-4 cases in 1000 sterilization cases.  It is also mentioned that sterilization failure rate is 0.4% and it is mainly due to spontaneous canalization.   The opposite parties state that in this case the sterilization operation was performed to the complainant in the 1^st opposite party’s sterilization Theatre Unit on free of cost.  There was no consideration paid or partly  promised as mentioned in the Act.    The opposite parties sterilization Theatre Unit was maintained and administered by the Corporation of Chennai for the benefit of general public.   All medical services are being rendered on free of cost.    Further the opposite parties state that the complainant’s wife had failed to follow the specific instructions of reporting to the medical unit when she missed her periods.  Even in the consent form, it was clearly mentioned that there is a chance of failure in the procedure and for that she cannot make the hospital or medical officer responsible for the same.  If she had reported to the hospital immediately when she missed her periods, it could be possible for termination of pregnancy at free of cost with re-sterilization and the birth of child could be prevented and she need not have been put into financial constraints as the complainant alleged.   Hence there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A4 marked.  Proof affidavit of the opposite parties filed and Ex.B1 to Ex.B4  marked on the side of the  opposite parties.

4.      The points for consideration is :

Whether the complainant is entitled to a sum of Rs.5,00,000/- towards compensation with cost as prayed for ?

5.      ON POINT :

        The opposite parties filed written arguments.  The complainant has not filed turned up to advance any arguments either oral or written arguments.   Perused the records (viz.) complaint,  written version, proof affidavits and documents etc.   The complainant pleaded in the complaint and contended that he married one Amudha on 25.2.2005.  Out of the said wedlock, two children namely Natesan aged 8 years and Mahesh Boopathy aged 7 years were born.   The complainant is employed as an Assistant in a computer Stationery Firm and earning sum of Rs.3,000/- per month and his wife is a home maker.   The complainant after consulting his wife, has decided to undergo family planning operation  to his wife.   Since their income will be just sufficient to nurture their two children.   On 8.12.2001 the complainant’s wife Amudha admitted in the 4^th opposite party medical unit at Roayapettah and had undergone family planning operation and was discharged on 10.12.2001 as per Ex.A1.  After due family planning operation the complainant’s wife became pregnant and gave birth to a third female baby namely Harshini on 22.1.2008.  Since the family planning operation performed by 4^th opposite party medical officer is defective which caused great mental agony and hardship. The complainant never expected that he would be blessed with another female child and it added severe financial constraint to him.    Hence the complainant issued legal notice Ex.A2 dated 28.3.2008 to the opposite parties calling upon them to compensate the  complainant for defective performance of family planning resulting the pregnancy and the child birth.    The opposite parties sent reply Ex.A4 dated 14.5.2008 admitted the Family planning operation and stated that there may be chances of failure in four out of every 1000 operated cases and also raised such a hyper technical contention in order to get deficiency in surgery of family planning.  The complainant is claiming a sum of Rs.5,00,000/- towards compensation by way of financial loss and mental agony and maintenance of child.   As per 2007 (1) CPJ 318 (NC )  & 2000 (1) CPJ 53 (SC)

6.     The contention of the opposite parties is that as per Sec. 2 (1) (d) of the Consumer Protection Act,  the terms “consumer” defined as any person who      

1. Buy any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtain such goods for resale or for any commercial purpose or
2. Hires or avails of any services for a consideration which has been paid or promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised or under any system of deferred payment when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose. ..

In this case the sterilization operation was performed to the complainant in the 1^st opposite party’s sterilization Theatre Unit on free of cost.  There was no consideration paid or partly or partly promised as mentioned in the Act.    The opposite parties sterilization Theatre Unit was maintained and administered by the Corporation of Chennai for the benefit of general public.   All medical services are being rendered on free of cost.    The complainant has not produced any documentary evidence to prove the payment of consideration towards such performance of sterilization.   Further the contention of the opposite parties is that this case is not coming under the purview of Consumer Protection Act.  as per the Judgment of Supreme Court reported in  1996 (5) SCC, Indian Medical Association..Vs.. V.P.Shanth, 2003 (2) CPJ Page No.84 and Consumer Protection Act 1986 Sect. 2(1) (d) 2(1) (g).   Further the contention of the opposite parties is that the complainant’s wife came to the sterilization unit on 7.12.2001 she was informed  about the chances of failure in surgery and the opposite parties are not responsible for the failure and having accepted the terms the complainant’s wife put her signature in the consent form vide Ex.B2.  Thereafter due careful check up and puerperal sterilization  was  conducted on 8.12.2001 by qualified medical officers and was discharged on 10.12.2001 with specific instructions to report immediately to the place where surgery was performed; if she misses her periods for more than two weeks;  But the complainant filed this case after giving birth of a child without taking care of the post operative check up.  Similarly the complainant’s wife also did not turned up to the hospital for periodical check ups and did not report to the hospital / sterilization unit about missing of her periods for termination of pregnancy.  On the other hand she had opted to continue the pregnancy at her own will and filed this case;  As such there was neither deficiency of service nor negligence on the part of the medical officer.    Further the contention of the opposite parties is that as per the medical literature, there will be natural spontaneous recanalised of the tubes of 3-4 cases in 1000 sterilization cases.   As per the decision reported in 2009 (7) SCC Page No.130 cautioning the consumers too much suspicion about negligence of attending doctors and frequent interference by courts is a dangerous proposition and held that it would prevent doctors from taking decisions which could result in complications and in this situation patient is the ultimate sufferer.    The opposite parties relied upon the Judgment reported in 2006 (3) CPJ Page No.74 wherein in a similar case, the Hon’ble Karnataka State Commission held that “woman became pregnant – delivered  a child – even after operation –scope for conceivement  due to biological changes in body and for tube get ruined – resulted in conceivement – Medical literature shows possibility of failure surgery – Hence failure of same cannot be attributed to the negligence of Doctor.

7.      But as per the decisions reported in  

I (2000) CPJ 53 (SC)

STATE OF HARYANA & ORS

..Vs..

SMT. SANTRA

 

I (2007) CPJ 318 (NC)

HASMUKH F. PRAJAPATI (DR.) & ANR.

..Vs..

SHASHIKALABEN

Considering the facts and circumstances of the case this forum is of the considered view that the opposite parties 1 to 5 are jointly and severally liable to pay compensation of Rs.2,50,000/- and cost of Rs.5000/- to the complainant and points are answered accordingly. 

In the result the complaint is allowed in part.  The opposite parties 1 to 5 are jointly and severally liable to pay compensation of Rs.2,50,000/- (Rupees two lakhs and fifty thousand only) along with cost of Rs.5000/- (Rupees five thousand only) to the complainant. 

The above  amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

Dictated  by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 7^th  day of February 2018. 

MEMBER –I                       MEMBER-II                              PRESIDNET.

COMPLAINANT SIDE DOCUMENTS:

Ex.A1- 8.12.2001 - Copy of discharge summary.

Ex.A2- 29.3.2008 - Copy of legal notice.

Ex.A3-          - Copy of Postal Ack.

Ex.A4- 14.5.2008 - Copy of reply notice.

OPPOSITE  PARTIES SIDE DOCUMENTS:

Ex.B1-                -  Copy of Hospital particulars

Ex.B2-            - Copy of consent form.

Ex.B3-            - Copy of extract from medical test book.

Ex.B4-             - Copy of reply notice.

 

MEMBER –I                       MEMBER-II                              PRESIDNET.