IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/49/2019
Date of Filing: Date of Admission: Date of Disposal:
26.03.2019 03.04.2019 12.09.2023
Complainant: Shyamal Sil,,
S/o- Jugol Ch Sil,
Vill- Haridasmati, ,
P.O. & P.S. Berhampore,
Dist- Murshidabad,
Pin-742101.
-Vs-
Opposite Party 1. Dr. Ranjit Kr. Roy Chowdhury,
Chamber at Pabitra Abasan,
100, Pilkhana Road, Ranibagan,
P.O. & P.S. Berhampore,
Dist- Murshidabad,
Pin-742101.
2. The Manager Director,
Lila Hospital Pvt. Ltd.,
13/03/A, A.C. Road,
P.O.- Khagra,
P.S.-Berhampore, Dist- Murshidabad,
Pin-742101,
Agent/Advocate for the Complainants : Shyamal Sil
Agent/Advocate for the Opposite Parties : S.S. Dhar
Present: Sri Ajay Kumar Das…………………………..........President.
Sri. Nityananda Roy…………………………………….Member.
FINAL ORDER
Sri. ajay kumar das, presiding member.
This is a complaint under section 12 of the CP Act, 1986.
One Shymal Sil (here in after referred to as the Complainant) filed the case against Dr. Ranjit Kr. Roy Chowdhury & Anr. (here in after referred to as the O.P.s) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant filed the instant petition on the ground that the Complainant is a barber by occupation and used to run his family as a barber under his employer’s shop by earning a little income and in the due course he got married Anjali Shil and within the due course of their conjugal life the wife of the Complainant became pregnant and gave birth of their first baby Srabani Shil on 06/08/2006 and in continuation thereof the wife of the Complainant further conceived and accordingly communicated with the Opposite No. 01 on 05/06/2016 for proper advice and under his treatment at the office of the Opposite Party No. 02 she delivered her first female child on 29/06/2016 under the care and supervision of Dr. Ranjit Kr. Roy Chowdhry, renounced medical practitioner of the locality being the Opposite Party No. 1 at Lila Sebayan Nursing Home, Berhampore, MSD and accordingly she was discharged from the nursing home on 03/07/2016 and in the meantime the Complainant and his wife jointly decided and preferred for ligation operation at that time after due consideration of their family conditions.
At the time of consultation with her physician the Complainant and his wife had communicated their desire as to complete ligation operation alongwith her surgery and accordingly advised to their Doctor to get arrangement for ligation and as instructed the Opposite Party No. 01, being the physician of the Complainant, performed and completed the liquation operation of the Complainant’s wife in the due course of seizure operation and to that effect specific mentioning was made on the discharge certificate dt. 03/07/2016.
Thereafter, completion thereof a happy and peaceful family life was started by the Complainant with his wife and new born baby but unfortunately within this time the wife of the Complainant further started to face few specific symptoms of pregnancy of which she had no planning and programme and accordingly for further details the Complainant and his wife communicated with the Opposite Party No. 01 on 12/01/2019 alongwith all her medical documents so that she could get proper direction and information about her illness and the Opposite Party No. 01 assured the Complainant that his wife had no chance of further pregnancy as ligation operation had already been done as well as some medicine was prescribed for the Complainant’s wife as also advised to take rest as she was physically week.
Evenafter consultation with the O.P.No. 01 the Complainant started to fill annoyance and physical uncomfortability and for confirmation she preferred to have a medical test on 12/01/2019 at Careland Ultrasonography Clinic and with the report in hand the physician informed to the Complainant and his wife that she was pregnant for almost six months.The Complainant and his wife was most shocked with such an unexpected report and felt helpless in the situation and the faithfulness upon the Opposite Party No. 1 was diminished at that point with the thinking that the Opposite Parties had mal-practiced with the Complainant just for financial benefits.
The upcoming issue of the Complainant is unexpected one and for which the Complainant and his wife had not made any plan or programme and furthermore the upcoming issue will be a burden upon them.
That above all the issue of unwanted pregnancy of the Complainant’s Wife brought her pressure both in way of physically and mentally as well as considering the financial position of the Complainant and his family he could not be expected to have third issue.
Complaining the said incident alongwith relevant documents the Complainant when charged upon the Opposite Parties they simply disown the liability of such an accident and in this course the Opposite Parties have never bothered to consider the situation of the Complainant and his wife and strongly denied their fault and further suggested for abortion of the upcoming issue at their institution to which they can consider with the fees and charges and hearing the same the Complainant and his wife simply became speechless.
Finding no other alternative the complainant filed the instant case before the District Commission praying for appropriate relief.
Defence Case
After due service of the notice O.P. 1 appeared by filing W/V stating inter alia that the case is not maintainable. The specific defence case of O.P. No. 1 is that the Complainant’s wife was admitted at Lila Sabayan Nursing Home on 29.06.2019 for birth of a child and for performing a sterilization operation. Wife of the Complainant executed a consent form by putting her signature. The Doctor i.e. O.P. No. 1 performed the operation with due diligence and the operation was successful. There were no latches on the part of the Doctor i.e. this O.P. No. 1. On that day i.e, 29.06.2019 the wife of the Complainant gave birth to a female child.
There was no negligence on the part of this O.P. Even if the operation be successful then also due to natural causes which are between 0.3 % to 7 % the wife of the Petitioner may again be conceived. So mere pregnancy after ligation operation cannot prove that there was negligence on the part of the Doctor. Onus is upon the Complainant to prove that there was negligence on the part of the Doctor. The methods of sterilization so far known to medical science are not 100 % safe or secure. The O.P. was always serious about the operation. The authority took proper care towards the petitioner.
The O.P. is an experienced Gynecologist and he is consultant Gynecologist and Lap Surgeon. He was previously attached with W.B. heath service.
O.P. No. 2 is also contesting the case by filing W/V stating inter alia the case is not maintainable. The specific defense case of O.P. No. 2 is that the Complainant’s wife was admitted at Lila Sabayan Nursing Home on 29.06.2019. Lila Sabayan Nursing Home is the necessary party. The patient was never admitted to Lila Hospital Pvt. Ltd. So, the O.P. 2 is an unnecessary party.
Points for decision
1. Is the Complainant consumer under the provision of the CP Act, 1986?
2. Have the OPs any deficiency in service, as alleged?
3. Is the Complainant entitled to get any relief, as prayed for?
Decision with Reasons:
Point no.1
We peruse the complaint. The averments made in the complaint indicate that the Complainant is a consumer under the Consumer Protection Act, 1986 as well as Consumer Protection Act, 2019.
Point Nos. 2 & 3
Both these points are taken up together for the sake of convenience and brevity of discussion.
Ld. Advocate for the O.P. 1 submits at the time of hearing argument that it was known to the Complainant that none of the methods used for sterilization can be stated to provide a 100 per cent guarantee that the pregnancy will not occur again. In support of his contention he has submitted the copy of the consent form of the Complainant regarding sterilization. On perusing the consent form we find that the wife of the Complainant Anjali Shil signed the consent form and the Complainant Shymal Shil also signed the consent form.
Further in support of his contention Ld. Advocate for the O.P. 1 cited a decision of the National Consumer Disputes Redressal Commission, New Delhi reported in Medical Superintendent, ESI Hospital Vs. Ram Avadh Pal held on 24.01.2017 wherein it is stated , “ Consumer Protection Act, 1986- Sections 2(1)(g), 21(b) – Medical Negligence – Sterilisation operation – Pregnancy re-occurred – Allegedly fallopian tubes got reconnected in natural course – Alleged deficiency in service – District Forum allowed complaint – State Commission dismissed appeal – hence revision – Doctors used the Pomeroy’s Method for the sterilization operation and removed pieces from each of the Fallopian tubes – None of the methods used for sterilization can be stated to provide a 100 % guarantee the pregnancy will not occur again – If wife of complainant became pregnant after 4 years of sterilization, it cannot be attributed to any negligence on part of doctors or the hospital in any manner – Complaint dismissed.”
Ld. Advocate for the O.P. 1 cited another decision of the Hon’ble Apex Court reported in State of Punjab Vs. Shiv Ram, decided on 25.08.2005 wherein it is held “ 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.”
In the instant case the Complainant has filed ultrasonography test report conducted by Careland Ultrasonography Clinic on 12.01.2019 which reveals Gestational age by L.M.P. (29/07/2018) is 23 wks 6 days EDD – 05/05/2019. Here we find that the L.M.P of the wife of the Complainant was 29.07.2018 but Ultrasonography test was held on 12.01.2019. Here we find that woman missed menstrual cycle on 29.07.2018 but she was negligent for about 24 wks in conducting the aforesaid test.
Ld. Advocate for the Complainant submits that the Complainant and his wife signed the consent form without knowing the contents of the consent form. From the materials on record we find that O.P. 1 has mentioned in the W/V regarding the execution of the consent from. But this fact has not been denied by the Complainant in his evidence.
Moreover, in the instance case the Complainant has failed to establish that there was deficiency of service on the part of the doctor concerned in sterilization operation.
Mere pregnancy of the wife of the Complainant does not ifso fact prove that the doctor concerned was negligent in sterilization operation.
In view of the matter discussed above and keeping in mind the above legal position we are of the view that the instant case is liable to be dismissed.
Reasons for delay
The Case was filed on 26.03.2019 and admitted on 03.04.2019. This Commission tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act, 1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case fails.
Fees paid are correct. Hence, it is
Ordered
that the complaint Case No. CC/49/2019 be and the same is dismissed on contest against the O.P.s but under the circumstances without any order as to costs.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President
Member President.
