Haryana

Fatehabad

CC/326/2019

Kavita Rani - Complainant(s)

Versus

Dr. Geeta Choudhery - Opp.Party(s)

Kamlesh Vashith

11 Dec 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FATEHABAD.

 

                                                         Complaint No.:326 of 2019.

                                                         Date of Institution: 14.08.2019.         

                                                         Date of Decision: 11.12.2023.

 

Kavita Rani wife of Bharat Singh resident of village Mehuwala Tehsil & District Fatehabad.

                                                                  

                                                                   ….Complainant.

                             Versus

 

1.State of Haryana through CMO/Civil Surgeon, General Hospital, Fatehabad.

2.Dr.Geeta Chaudhary, Medical Officer, Geeta Nursing Home, Fatehabad Tehsil & District Fatehabad.

3.Dr.Sumedha Arora, Medical Officer, Geeta Nursing Home, Fatehabad Tehsil & District Fatehabad.

 

                                                                   ….Opposite Parties.

                             Complaint under Section 12 of the

                             Consumer Protection Act

 

BEFORE:             SH. RAJBIR SINGH, PRESIDENT.

                             DR.K.S.NIRANIA, MEMBER.

                             MRS. HARISHA MEHTA, MEMBER

 

Argued by             Ms.Kamlesh Vashisth, Counsel for the complainant.

                             OP No.1 given up VOD 14.08.2019.

                             Sh.U.K.Gera, Advocate for Op Nos. 2 & 3.

 

ORDER

SH.RAJBIR SINGH, PRESIDENT

 

                             The complainant has filed the present complaint with the averments that she has two kids namely Savina (12 years) and Mohit (11 years); that she does not have immoveable property and was not in a position to up-bring another child, therefore, she opted for sterilization/Nasbandi operation and contacted Ops No.2 & 3; that she was medico-legally examined by Ops No.2 & 3 and on finding her fit for sterilization/Nasbandi operation; that there after the complainant was admitted in the hospital of OP No.2 where sterilization/Nasbandi operation was performed on the person of the complainant on 26.09.2018; that Ops No.2 & 3 charged Rs.30,000/- from  her for conducting the operation; that after getting discharged from the hospital she started leading normal life but surprisingly she got pregnant with 4-1/2 months fetus and it was not possible for her to quit the pregnancy; that it all happened due to carelessness and not performing the operation by the Ops No.2 & 3 properly; that the unwanted child is growing in her womb and she had never wished for the same; that the complainant requested the Ops for compensation on account of unwanted child but to no avail. In evidence, the complainant has tendered affidavit Ex.CW1/A and documents Ex. C1 to Ex.C12.

2.                On notice, Ops No.2 & 3 appeared and filed their separate replies. Op No.2 in its reply has submitted that she has nothing to do with the surgery in question because the husband of Op No.3 had taken the premises of Op No.2 on lease in April, 2018; therefore, prayer for dismissal of the complaint has been made.

3.                Op No.3 in its reply has taken preliminary objections such as cause of action and locus standi  etc. It has been further submitted that the complainant was very well explained and made understood about the   operation of surgical sterilization  and she was also made understood about the temporary birth control available alternatives; that the sister of the husband of the complainant came to the replying Op and also signed the consent form for conducting the operation; that replying Op has never given any assurance qua absolute success of the operation; that no adult women can remain ignorant of the fact about not releasing of menstrual periods for about 4.5 months, which shows that the factum of pregnancy was within the knowledge of complainant because she has already given birth to two children. There is no negligence and deficiency in service on the part of replying OP. Other contentions have been controverted and prayer for dismissal of the claim has been made. In evidence, the Ops have tendered affidavit/documents Ex.RW2,3/A and Annexure RW2, 3/1. Learned counsel for the complainant gave up the Op No.1 being unnecessary vide her separate statement recorded on 14.08.2019.

4.                          Arguments advanced on behalf of both the sides have been heard and the material available on the case file has been perused very carefully.

5.  
6.  
7.  

The reliance is placed on the judgment of this court reported as State of Punjab Vs. Shiv Ram & Ors., (2005) 7 SCC 1 to contend that the failed tubectomy surgery is not a case of medical negligence as 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. This Court held as under:-

“28. 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....................

30. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. 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.”

 

In the present case, the complainant has specifically mentioned that she noticed about the pregnancy of a child only after 18 weeks and at that time it was not possible for her to get the same terminated. The menstrual cycle length as per the literature is a as under

The days between periods is your menstrual cycle length. The average menstrual cycle lasts 28 days. However, cycles lasting as little as 21 days or as long as 35 days can be normal.

It is strange that the complainant has already given birth to two children but despite that she remained ignorant about the value of menstrual cycle and this fact makes it very clear that the pregnancy was very much in her knowledge from the very beginning and the present compliant has been filed in order to take undue advantage of the benevolent provisions of Consumer Protection Act by concealing the material facts, therefore, the complaint deserves dismissal. Further in the present case there is no cogent and convincing evidence to show that the operating doctor was negligent in any manner while conducting the operation.

8.                          Moreover, the principle of Gynecology says that even when tubal occlusion operations are competently performed and all technical precautions are taken, intrauterine pregnancy occurred subsequently in 0.3 % of cases. This is because an ovum gains access to spermatozoa through a re-canalized inner segment of the tube.

9.                          Thus, as a sequel to our above discussion, we are of the considered opinion that there is no deficiency of service or any unfair trade practice, on part of the Ops, so as to make any of them liable in this matter to any extent. Accordingly, the present complaint is hereby dismissed being devoid of any merits.  In the given circumstances, the parties are left to bear their own costs. A copy of this order be supplied to the parties free of costs. This order be uploaded forthwith on the website of this Commission, for perusal of parties herein. Case file be consigned to record room, as per rules, after due compliance.

Announced in open Commission.                                                            Dated: 11.12.2023

 

 

                                                                                                 (K.S.Nirania)                   (Harisha Mehta)                (Rajbir Singh)                          Member                               Member                                     President