C.F. CASE No. : CC/2013/78
COMPLAINANT Manju Biswas
W/o Robin Biswas,
Vill. Bankimnagar,
P.O. Churni Raghunathpur,
P.S. Dhantala Dist. Nadia,
-Vs –
OPPOSITE PARTIES / OPs: 1) Dr. N.B.Kanjilal
J.N.M. Hospital
P.O. & P.S. Kalyani,
Dist. Nadia,
2) OSD & EO
Superintendent,
J.N.M. Hospital,
P.O. & P.S. Kalyani,
Dist. Nadia,
PRESENT : SHRI PRADIP KUMAR BANDYOPADHYAY, PRESIDENT
: SMT REETA ROYCHAUDHURY MALAKAR, MEMBER
: SHRI SHYAMAL KUMAR GHOSH, MEMBER
DATE OF DELIVERY
OF JUDGMENT : 7th March, 2014
: J U D G M E N T :
The petitioner, Manju Biswas has filed the instant case against Dr. N.B. Kanjilal, herein OP No. 1 & OSD & EO , Superintendent J.N.M. Hospital, Kalyani herein OP No. 2 U/S 12 of the C.P. Act 1986.
The petitioner, Manju Biswas, W/o. Robin Biswas underwent tubectomy operation in the hospital of OP No. 2 on 11/01/06 which was done by OP No. 1 . A consent letter was also signed by the petitioner. But as luck would have it the petitioner again conceived and gave birth to a male child on 31/07/12. The petitioner was a holder of a Family Planning Insurance Scheme of ICICI LOMBARD GENERAL INSURANCE Co. Ltd and after the child birth she took the claim form to the OPs for signature on 28-08-12 when her sterilization failed. The OPs did not take any initiative to sign the same and as a result the petitioner did not get the claim amount from I.C.I.C.I. The husband of the petitioner also sent a request letter to J.N.M. Hospital on 05-07-12 for getting the compensation but the Ops did not pay any heed to that and hence this case. After getting notice of the forum OP No.1 appeared & filed written version but OP No. 2 did not appear even after getting notice. The case was running exparte against OP No. 2. OP No. 1 submits in his written version that the case is not maintainable as this forum has get no jurisdiction to entertain such complaint as Consumer Forum is a platform only for summary proceedings and the instant case does not fall under this category. He also stated in his written version that the present case is barred by limitation as the tubal ligation (tubectomy) was done in the year 2006 and the case has been filed in the year 2013 long after expiry of 2 years. Again he opined that the surgery was successful as the complainant has not conceived for 6 years as tubal ligation is approximately 99% effective in the 1st year following the procedure and the effectiveness may reduce slightly in the subsequent years since the fallopian tubes may reform or reconnect causing unwanted pregnancy.
After going through the case record the forum thought that before proceeding further the parties are to be heard on the point of maintainability. The case was heard on 10-02-14 Considering the complainant petition, written version of OP No.1 , ruling cited by the petitioner as well as the medical journal written by Karl P. Braaten and Cary Dutton on Permanent Sterilization Procedures for Women (Beyond the Basis) the forum has arrived at a decision that the instant case is not maintainable and the reason for arriving in such decision is discussed in a nutshell below.
- The petitioner being a consumer under the OPs filed the instant case against the OPs claiming compensation for failure in tubal ligation operation done by OP No.1 in the hospital of OP No.2. If we go through the consent letter written in Bengali we will find 2 clauses which are relevant in this case. Firstly it is stated that even after ligation there is a possibility of childbirth and for that reason the patient cannot blame the doctor and secondly a patient can only claim compensation from the government on the failure of ligation if she goes for abortion within 2 weeks from the date of conception. Here in the instant case the petition signed the consent letter which implies that she had gone through the clauses and only put her signature. So the petitioner Manju Biswas cannot blame the doctor herein OP No. 1 for failure of the ligation. Secondly she waited for a period of 9 months & gave birth to her child, so the question of claiming compensation from the government also does not arise does not arise.
- The petitioner took an insurance policy from ICICI to cover the risk on the event of failure of tubectomy operation. This type of policy is it self a testimony that such failure of sterilization is a known complication otherwise such policy would not have existed in the market
- From the journal published by IOSR we find that possibility of conception after sterilization is 1% following the procedure and with passae of time it increases as the fallopian tube gets reconnected in the natural process. The study also reveals that the failure in ligation is much more with the young patients, i.e patients below 30 years. Here the petitioner Manju Biswas was 23 years old at the time of operation.
- In view of III (2013) CPJ 217 (NC) the compliant cannot opt for compensation for bringing up the child.
That the case, CC/2013/78 be and the same is dismissed for not having any merit.
Let a copy of this judgment be delivered to the parties free of cost.
