(As Per A.A.Jain, Hon’ble Member )
The complainant has filed this complaint against the Opposite parties u/s 12 and 14 of Consumer Protection Act 1986 for seeking various reliefs as per prayer clause.
1 Complainant’s case in short is that the complainant has done Tubectomy i.e. family planning operation from O.P.’s primary Health Centre, Amgaon on 18-01-1999.
2 After 6 years complainant has born/delivered a child on 28-08-2006 . Complainant alleged that due to negligence of O.P. She has delivered her third child. Her husband is a political worker. So he cannot participate in any election due to more than two children. So his political carreer destroyed due to medical negligence of O.P.
3 Complainant filed this complaint and claimed Rs.2,00,000/- as compensation for physical and mental harassment charges and cost of the complaint.
4 In response to notice u/s 13 of C.P.Act 1986 , O.P. appeared and filed his reply (Ex.16) O.P. No.1 and 2 denied all the allegations of complainant. O.P. submitted that District Health Officer, Gondia is employee of Zilla Parishad Gondia. Complainant has made party to State of Maharashtra through D.H.O., Z.P. Gondia . If State of Maharashtra is party then it should be represented by Collector Gondia and not by District Health Officer, Gondia. Due to misjoinder of necessary party, the complaint is liable to be dismissed. O.P. further submitted that O.P. No.1 was Medical Officer of P.H.C.Amgaon. O.P.No.1 was government servant. He was transferred to Z.P.Gadchiroli and on 31-10-2004 on attaining the age he was retired.
5 Complainant case was based on the failure of family planning operation i.e. Tubectomy operation. The operation was done by O.P.No.1 at P.H.C.Amgaon. O.P. has not taken any fees or charges of any kind, so complainant does not fall within the ambit of definition of Consumer as provided in the Sec.2 d(ii) of the Consumer protection Act.
6 O.P. submitted that prior to undergoing Tubectomy operation the complainant has given her consent as well as undertaking in writing to the effect that in the event of failure of tubectomy operation the complainant or her family members would not claim any compensation from the concerned department, Doctor or state government.
7 O.P. further submitted that the complainant has admitted that there was no medical problem to her after the said operation. This is the clear evidence of fact that there was no medical negligence on the part of O.P.No.1 in performing family planning operation of the complainant. O.P. denied that the petitioner has suffered irreparable loss and complainant has been deprived from getting Government benefits or her political life has been spoilt. O.P.further submitted that the complainant could have saved this situation by legally terminating alleged pregnancy.
Due to above fact, O.P.prayed that the complainant should be dismissed with cost in the interest of justice.
8 On verifying all records and hearing arguments of both the parties, the following points arise for our consideration and our finding there on are given below :
POINTS FINDINGS
A Whether complainant is consumer ? No
B Whether there is misjoinder of party ? Yes
C Whether there was deficiency in service or negligence of O.P. No
D What order ? As per final Order.
REASONS
9 Complainant has filed complaint against O.P.No.1 Dr. S.R.Makde, Medical Officer, C/o. Primary Health Centre, Amgaon. The complaint was filed against Dr.Shri Makde on his personal capacity. Only address was given as Care of :Primary Health Centre. It appears that the family planning operation was done by O.P. in his private hospital or clinic and complainant has paid some remuneration, fees or operation charges. But it did not happen so. Operation was done free of cost and on the other hand incentive was paid to the persons by the O.P.No.2 Govt. of Maharashtra who undergo family planning operation, to control the increasing population of country. So complainant is not consumer of O.P.No.1.
Complainant has got operated free of cost i.e. without paying any charges as per the family planning scheme of Govt. The P.H.C. is aided by Govt. through the agency of Zilla Parishad which control the activities of all P.H.C.s . So complainant is not consumer of O.P. As held in Pushpabai Vrs. Dr.S.Josepth, M.P.State Consumer Dispute Redressal Commission, Bhopal II (2000) CPJ 566.
10 Complainant has made State of Maharashtra qs O.P.No.2 through District Health Officer, Zilla Parishad Gondia. Zilla Parishad Gondia is a local autonomous body constituted under Maharashtra Zilla Parishad and Panchayat Samitis Act and has separate legal entity. District Health Officer Gondia is officer of Zilla Parishad Gondia, who cann not represent State of Maharashtra. State of Maharashtra is represent6ed by District Collector, Gondia, who was not made as party. Thus the present complaint is bad in law for misjoinder of necessary party.
11 Complainant has not proved that there is deficiency in service . That, on 18-01-1999 operation of family planning was done. Complainant admitted that (para 6 and 7) till the said operation she had already two issues, that since 19-01-1999 there has been no issue to the complainant and there has been no any medical problem in this regard to the complainant. But in the month of February 2006 i.e. after six years complainant got pain in legs and stomach then she visited to Dr.Nirmal Jaipuriya on 13-02-2006 for having medical treatment. Dr. informed her that she was having two months pregnancy. And on 28-08-2006 the complainant has delivered a baby.
That there was no negligence on the part of the operating doctor which is apparent from the fact that for six years there was no pregnancy to the complainant and no any medical problem. There is no evidence on record or any expert evidence which proves that there is negligence at the time of operation resulting into failure of the operation and consequent birth of a baby. If there was negligence on the part of O.P. then within the gap of 6 years she would have been pregnant. But it did not happened. So there was no deficiency in service and medical negligence on the part of O.P.No.1.
12 The O.P. have stated in their W.S. that complainant was advised to terminate pregnancy to save the situation legally but complainant did not followed this advice of the O.P.
13 The O.P. has submitted that prior to undergo Tubectomy operation the complainant has given her consent as well as undertaking in writing to this effect that in the event of failure of tubectomy operation, the complainant or any of her family members would not claim any compensation from the concerned department or doctor or State Government for failure of tubectomy operation. In view of the above said consent and undertaking given by the complainant she is legally estopped from claiming any compensation from O.Ps. Complainant had also given undertaking to the effect that in the event of her conceiving after Tubectomy operation, she would take appropriate steps to legally terminate her pregnancy. But complainant has not chosen this way to terminate her pregnancy.
14 O.P. submitted one case law at the time of argument i.e Madhya Pradesh State Consumer Dispute Redressal Commission, Bhopal-Pushpabai Vrs. Dr. S. Joseph-Appeal No.145 of 1998 , Decided on 28-04-2000 reported II (2000 CPJ 566. It was held that :
9 In Williams Obstetrics 20th Edition in the heading of XIV family planning dealing in Section 14 with surgical contraception failure rate inspite of all skill, reasonable degree, care has been shown approximately I in 400 procedures. In heading of TubalSterilization Failures, the author describes : No method of tubal sterilization is without failure, and both uterine as well as ectopic pregnancy may result from such failure. For the failure various causes have been given by the author who concludes that most sterilization failures are not preventable.
10 In the present case in the absence of anyexpert evidence of negligence on the part of the respondent, it is not possible to record a finding of deficiency in service therefore, the District Forum was right in holding that the respondent was not deficient in service.
11 In the circumstances, the appellant if so advised, may take appropriate proceedings in the Civil Court of competent jurisdiction against the respondent and the State Government for establishing negligence and to claim the damages.”
(ii) Consumer Protection Act 1986- Section 2(1)(g)-Medical Negligence-Deficiency in Service- Complainant conceived after Tubectomy (T.T.) operation –No method of tuba sterilization is without failure- Uterine and ectopic pregnancy may result from such failure-Expert evidence not produced to prove negligence-No deficiency in service proved- Complainant not entitled to any compensation.
(ii) Consumer Protection Act, 1986 – Section 2(1)(d) –Consumer-Sterilization operation performed in Family planning programme undertaken by Government in Government Hospital, free of charge-Complainant not a Consumer.
Held : Operations are performed in the Family planning Programme undertaken by the Government of Madhya Pradesh in the Government Hospitals free of charge. In such circumstances as no consideration was paid the appellant was not a consumer as defined under Section 29 (1)(d)(ii) of the Consumer Protection Act, 1986 (for short the ‘Act’)
As it was held that there was 5% to 8% chance of failure of Tubectomy operation so there was no medical negligence nor deficiency in service and complainant does not falls under the bit of consumer. So we proceed to pass following order.
ORDER
1 Complaint stands dismissed with the liberty to the complainant to seek remedy from competent civil court if so desires.
2 No order as to costs.
