DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 458 of 8.11.2016
Decided on: 17.8.2017
Sukhwinder Kaur wife of Sh.Karamjit Singh son of Billu Singh, resident of village Kheri Gillan, Tehsil & District Sangrur.
…………...Complainant
Versus
Renu Sharda Nursing Home, 1, Shiva Enclave,Circular Road, Nabha, Tehsil Nabha, District Patiala through Prop.Renu Sharda Gynecologist and obstetrician.
…………Opposite Party.
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.Gurmail Singh Dhaliwal, Adv.
counsel for complainant.
Sh.Y.R.Mangla,Adv.counsel for the opposite party.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Smt.Sukhwinder Kaur has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Party (hereinafter referred to as the O.P.) praying for the following reliefs:-
- To pay Rs.15,00,000/- as compensation for causing mental agony, tension, and physical harassment
- To pay Rs.11000/- as litigation expenses and costs and
- To grant any other relief which this Forum may deem fit.
2. In brief, the case of the complainant is that she got admission in the hospital of the OP for the sake of delivery. After delivery she requested the OP for the operation of tubectomy. The OP did the operation of tubectomy. A discharge card to this effect was also issued by the OP. However, after operation she got pregnant in the month of April,2016. In this regard, she approached the OP who told her for conducting ultrasound .Accordingly she got conducted ultrasound on 30.6.2016 from Dr.Rawlley’s X-ray and Ultrasound Scanning Centre, Opposite Civil Hospital, Nabha, whereby she came to know that she is having pregnancy of 9 weeks. After getting the ultrasound report, she approached the OP , who on her letter head wrote that she(complainant) is having pregnancy of 9 weeks due to failure of tubectomy. At this she requested the OP for the payment of compensation but the OP put off the matter on one pretext or the other. She also got served a legal notice dated 12.7.2016 upon the OP but of no avail. That due to the negligent act of the OP, she has been suffering from mental agony, physical harassment and also financially. Hence this complaint.
3. On being put to notice, OP appeared and filed the written version. It is admitted that the complainant was admitted in her hospital for the delivery of the 3rd child on 3.10.2012. It is also admitted that operation was performed by her and no penny was charged from her for the said operation. The procedure of tubectomy upon the complainant was done with quite caution and care. It is denied that any assurance was given to the complainant that she will not get pregnant. It is stated that after conducting the operation of tubectomy, she advised the complainant to take precautions for at least six months and get herself regularly checked up in order to avoid any complication but she never got herself checked up after the tubectomy. She was also told that the procedure of the tubal sterilization may be failure in some cases. There is no deficiency in service on the part of the OP. After denying all other averments made in the complaint, it was prayed to dismiss the complaint.
4. On being called to do so, the ld.counsel for the complainant has tendered in evidence affidavit of the complainant Ex.CA alongwith documents Exs.C1 to C7 and closed the evidence.
The ld. counsel for the OP has tendered in evidence affidavit of Dr.Renu Sharda,Ex.OPA and closed the evidence.
5. We have heard the ld.counsel for the parties, gone through the written arguments filed by the ld.counsel for the complainant and have also gone through the record of the case, carefully.
6. The ld. counsel for the complainant has submitted that even after operation of sterilization, the complainant got pregnant, which clearly shows that the OP conducted the operation of sterilization, negligently, for which the complainant has undergone mental agony, physical harassment and financial loss and is entitled for compensation.
7. On the contrary, the ld. counsel for the OP has submitted that at the time of operation of tubectomy the complainant was advised to take precaution at least for six months and to get herself regularly checked up to avoid any further complication. But she never visited for checkup after getting operation and has come to the nursing home of the OP when her pregnancy was at advance stage. At the time of operation, it was clearly told to her that tubectomy is not a 100% full proof procedure for sterilization and failure may occur in some of cases. Since the complainant was operated upon by a well qualified & skilled doctor, who had adopted the proper procedure while conducting the operation of tubectomy, thus the OP cannot be said to be negligent in conducting the operation.
8. In order to prove that the OP had conducted the operation of tubectomy negligently, the complainant has not placed on record any cogent and convincing evidence. Thus, in the absence of any documentary proof, it cannot be ascertained that the OP was negligent in conducting the operation. In the case of State of Punjab Vs. Shiv Ram & Ors.(SC): Law Finder Doc Id # 84707, it has been held by the Hon’ble Supreme court that, “failure of sterilization operation- Merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child-The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery-The surgeon will, however, be liable if he had assured 100% exclusion of Pregnancy”. Thus, in view of the law laid down by the Hon’ble Apex court, in the case State of Punjab vs. Shiv Ram & Ors (supra), the complaint filed by the complainant is hereby dismissed. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter file be indexed and consigned to the Record Room.
ANNOUNCED
DATED:17.8.2017 NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
