IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/141/2017
Date of Filing: Date of Admission: Date of Disposal:
24.08.17 08.09.17 02.01.24
Complainant: Sufia Mamtaz
W/o Md. Mafiul Alam Mondal
5/1, Nirupama Devi Road,
PO&PS-Berhampore
Dist-Murshidabad, Pin-742101
This Complainant died on 19.01.2018 and as such the following legal heirs of the deceased Complainant are substituted and they are
- a) Minor Maniza Mondal
1. b) Minor Md. Manish Alam Mondal
Both daughter and son of Md. Mafiul Alam Mondal, on behalf of minors guardian father and self,
1. c) Md. Mafiul Alam Mondal, S/o Late Md. Firojuddin Mondal,
All of Vill-Joykrishnapur, PO-Joykrishnapur, PS-Jalangi, Dist-Murshidabad, Pin-742305.
-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 : Partha Sarathi Ghosh
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 Sufia Mamtaz (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 is a consumer under the provisions of the Consumer Protection Act, 1986 and is residing within the local jurisdiction of Honours Court.
The Complainant is a service holder and used to run her family as a working woman after marrying her husband Md. Mafiul Alam Mondal.
During the course of her marriage life the above named complainant became pregnant and delivered her first female child on 25.09.10 under the care and supervision of Dr. Ranjit Kr. Roy chowdhury, renounced medical practioner of the locality being the OP No.1 at Lila Sebayan Nursing Home, Berhampore, Murshidabad and accordingly she was discharged from the nursing home on 30.09.10.
Thereafter during continuance of their matrimonial relationship the above named complainant further became pregnant and in due course she communicated with her physician Dr. Ranjit Kr. Roy Chowdhury for further proceedings and under his supervision the complainant took admission on 13.02.16 at Lila Hospital being the OP No.2 for better treatment thereat.
At the time of consultation with her physician the Complainant and her husband had communicated their desire as to complete ligation operation along with her surgery and accordingly advised their doctor to get arrangement for ligation and as instructed the OP No.1, being the physician of the Complainant, performed and completed the ligation operation of the complainant on 13.02.16 and to that effect specific mentioning was made on the discharge certificate dt. 17.02.16.
The Complainant started a happy and peaceful family life with her husband and two children but unfortunately within this time she further started facing few specific symptoms of pregnancy of which she had no planning and programme and accordingly for further details the Complainant communicated with the OP No.1 along with all her medical documents so that she could get proper direction and information about her illness and thereat the OP No.1 assured the Complainant that she had no chance of further pregnancy as ligation operation had already been done as well as the complainant was advised to take rest as she was physically weak.
After consultation with the OP No.1 the Complainant stated feeling annoyance and physical uncomfortability and for further opinion she visited the chamber of Dr. Dhruba Jyoti Saha on 15.06.17 and after consultation and proper advice the complainant performed her USG on 16.06.17 for conformity of her illness and with the report in hand the physician informed to the Complainant that she is pregnant for about three months.
The Complainant and her husband was shocked with such an unexpected report and felt helpless in the situation and the faithfulness upon the OP No.1 was diminished at that point with the thinking that the OPs 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 her husband had not made any plan or programme and furthermore the upcoming issue will be a burden upon them as the third child.
Above all the issue of unwanted pregnancy of the Complainant brought her pressure both in mind and body as well as in her social position as because being a teacher by occupation she can’t be expected to give birth to third issue.
Complaining the said incident along with relevant documents the Complainant when charged upon the OPs they simply disown the liability of such an accident and in this course the OPs have never bothered to consider the situation of the Complainant 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 her husband simply became speechless.
The Complainant states that she is a bonafide consumer within the meaning of this statute and is aggrieved by and dissatisfied with fraudulent and malafide act of the OP.
Under the above mentioned state of incident the Complainant is being compelled to take the legal course and preferred to file this instant complaint case against the OPs for proper justice against the OPs claiming an amount of Rs. 15,00,000/- as compensation.
The cause of action lastly arose on 16.06.17 when the complainant first came to know about the mal-practice and malafide act on the part of the OPs.
Finding no other alternative the complainant filed the instant case before the District Commission praying for appropriate relief and prayed for directing the OPs to bear all necessary and relevant costing for both pre and post delivery expenses and an amount of compensation of Rs. 15,00,000/- only as at least be awarded as an amount of compensation for doing fraudulent and malafide practice of business.
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 was admitted at Lila Sabayan Nursing Home on 13.02.16 for birth of a child and for performing a sterilization operation. 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 is no latches on the part of the Doctor i.e. this O.P. No. 1.
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 was admitted at Lila Sabayan Nursing Home on 13.02.16. 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 Complainantconsumer 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 OPs are present but none appears on behalf of the Complainant. It is a long pending case. Such being the position we heard the argument on behalf of the Ld. Advocate for the OP and the final order will be passed after recess.
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 Complainant Sufia Mamtaz signed the consent form and her husband Md. Mafiul Alam Mondal 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 and submitted in the written complaint that she was pregnant for about 3 months. Here we find that the L.M.P of the Complainant was 01.05.17 but Ultrasonography test was held on 16.06.17. Here we find that woman missed menstrual cycle on 01.05.17 but she was negligent for about 6 weeks in conducting the aforesaid test.
It is coming out from the photocopy of the consent form that the Complainant and her husband signed the consent form.And the 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 instant 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 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 24.08.17 and admitted on 08.09.17. 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/141/2017 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.
