BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
FA.No.1669/2007 AGAINST C.C.No.117/2006 DISTRICT FORUM, KARIMNAGAR
Between:
1. Doctor Suresh Kumar, Dy.Civil
Surgeon, Govt. Civil Hospital,
Huzurabad, Karimnagar Dist.,
2. District Medical & Health Officer,
Collectorate complex, Karimnagar. Appellants
Opp.parties
And
Done Prabakar, S/o.Rajaiah,
Aged 34 years, Occ:Agrl. Labour,
R/o.Papannapalli Village of
Bejjanki Mandal, Dist.Karimnagar Respondent/ complainant
Counsel for the Appellants: M/s.V.Gourisankara Rao
Counsel for the Respondent: Mr.T.L.K.Sharma.
QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT.
SMT.M.SHREESHA, MEMBER
&
SRI K.SATYANAND, MEMBER
.
TUESDAY, THE SIXTH DAY OF APRIL
TWO THOUSAND TEN
Oral order:(Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.C.No.117/2006 on the file of District Forum, Karimnagar, opposite parties preferred this appeal.
The brief facts as set out in the complaint are that the complainant was having two children and opposite parties offered to conduct Family Planning Operation on 23-2-2001 at Government Hospital, Huzurabad and opposite party No.1 conducted Vasectomy operation on the complainant and he was informed that the operation was successfully completed and opposite party No.2 issued a sterilization certificate to that effect. It is the case of the complainant that after the Vasectomy operation, his wife had begotten 3rd child on 9-1-2003 and alleged that it was due to the careless and unsuccessful operation conducted by opposite party No.1. He submitted that he is a poor agricultural labour and could not provide good education and maintain the 3rd child and that he was an active political worker and due to the birth of third child, he was disqualified to participate in the panchayat elections. Hence he approached the District Forum for a direction to the opposite parties to pay Rs.3,00,000/- towards compensation for expenses to bring up the child.
Opposite parties 1 and 2 filed counter and submitted that the complainant approached the Family Planning Sterilization Camp at Government Civil Hospital at Huzurabad on 23-2-2001 and has given written consent and the vasectomy/Tubectomy operation was conducted. They submitted that the complainant gave written consent wherein it was mentioned that there is some chances of failure so no responsibility lies on the surgeon who conducted the operation or with the Government. They contended that it was wrong to state that opposite party No.2 issued Sterilization Certificate declaring the operation conducted by opposite party No.1 successful and the camp Officer issued sterilization certificate. They submitted that opposite party no.1 is a trained surgeon and conducted number of vasectomy operation in several camps and FW camps and every precautionary measures are adopted as per the standard prescribed by the experts and approved by Government of India. They further submitted that there are some chances of failure of operation and so no responsibility lies on the surgeon who conducted the operation or with the Government and in Medical jurisprudence there is no 100% possibility scheme and that the complainant gave consent and submitted that the complainant is not entitled to any relief.
Based on the evidence adduced i.e. Exs.A1 to A5 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite parties to pay Rs.1,00,000/- to the complainant with 9% interest from the date of petition i.e. 25-6-2006 within one month.
Aggrieved by the said order, the opposite parties preferred this appeal.
The facts not in dispute are that the complainant was having two children and the opposite parties offered to conduct family planning operation on 23-2-2001 at Government hospital and opposite party No.1 conducted vasectomy operation on the complainant he was informed that the operation was successfully completed and opposite party No.2 also issued sterilization certificate. It is the case of the complainant that after the vasectomy operation, a third child was born on 9-1-2003 and it is only due to the careless operation performed by opposite party No.1 that the family planning sterilization operation failed.
It is the case of the opposite parties that there are several chances of failure of sterilization and chances of reconciliation is 6% and as per the standards of medical parlance, there is no 100% guarantee in sterilization. We rely on the judgement reported in (2005) 7 Supreme Court Cases 22 in STATE OF HARYANA AND OTHERS v. RAJ RANI in which the Apex court held as follows:
‘Childbirth in spite of sterilization operation can occur due to negligence
of the doctor in performance of the operation, or due to certain natural
causes such as spontaneous recanalisation. The doctor can be held liable
only in cases where the failure of the operation is attributable to his
negligence and not otherwise. Several text books on medical negligence
have recognized the percentage of failure of the sterilization operation
due to natural causes to be varying between 0.3% to 7% depending on the
techniques or method chosen for performing the surgery out of the
several prevalent and acceptable ones in medical science. The fallopian
tubes which are cut and scaled may reunited and the woman may conceive
though the surgery was performed by a proficient doctor successfully
by adopting a technique recognized by medical sciences. Thus, the
pregnancy can be for reasons dehors any negligence of the surgeon. In
the absence of proof of negligence, the surgeon cannot be held liable to
pay compensation. Then the question of the State behind held vicariously
liable also would not arise”.
We also rely on the judgement reported in AIR 2005 SC 3280 in STATE OF PUNJAB v. SHIVRAM AND OTHERS in which the apex court held that
‘Compensation can be awarded only if failure of operation is attributed to the negligence of the doctor. Failure due to natural causes do not provide ground for claim and if the claimants opt for bearing a child despite failure of operation, they cannot claim compensation for upbringing the child’.
In view of the aforementioned judgement wherein it was clearly held that sterilization operations carry certain percentage of risk and any failure cannot be attributed to the negligence of the doctor unless and until there is negligence in the very conduction of the operation which the complainant in the instant case did not establish. He did not even state what the line of treatment should be and what the doctor did not perform as per standards of medical parlance.
Keeping in view that the very negligence in the conduction of the operation has not been proved and the judgement of the Apex court holding that failure of sterilization operations cannot be attributed to negligence by doctors, this appeal is allowed and the order of the District Forum is set aside and consequently the complaint is dismissed.
In the result this appeal is allowed and the order of the District Forum is set aside and consequently the complaint is dismissed. There shall be no order as to costs in this appeal.
Sd/-PRESIDENT.
Sd/-MEMBER.
Sd/-MEMBER.
JM Dt.06-4-2010
