BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 198 of 2018.
Date of Institution : 17.07.2018
Date of Decision : 11.12.2019.
Saroj, aged 25 years, wife of Sh. Suresh, resident of village Kairanwali, Tehsil Nathusari Chopta, District Sirsa.
……Complainant.
Versus.
1. Santosh Hospital & Maternity Home, situated infront of RSD School, Dabwali Road, Sirsa, District Sirsa through its authorized person.
2. Dr. Santosh Bishnoi, M.B.B.S. M.D. (Gynae & Obst.), at Santosh Hospital & Maternity Home, situated in front of RSD School, Dabwali Road, Sirsa, District Sirsa.
3. Oriental Insurance Company Limited, Sirsa through its Branch Manager, with which Santosh Hospital, Maternity Home, Dabwali Road, Sirsa was insured against error and omission Risk, vide policy no. 221113/ 48/2019/845, W.E.F. 4.7.2018 to 3.7.2019 & Policy No.221113/48/2018/1053 W.E.F. 4.7.2017 to 3.7.2018.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH.R.L.AHUJA………………. ……PRESIDENT.
SMT. SUKHDEEP KAUR ………MEMBER.
Present: Sh. Sanjay Sihag, Advocate for the complainant.
Sh. A.K. Gupta, Advocate for opposite parties no.1 and 2.
Sh. K.L. Gagneja, Advocate for opposite party no.3.
ORDER
The case of the complainant, in brief, is that she is married with Suresh Kumar and two children i.e. one boy and one girl were born who are well healthy and being maintained by complainant properly. That as the complainant and her husband are satisfied with two children and being unable to afford the expenses of third child, therefore, in view of policy of the Government “Chhota Parivar- Sukhi Parivar” they were motivated by the scheme of “Tubectomy” in order to maintain the family in well manner. The complainant and her husband agreed to undergo tubectomy of complainant from Govt. General Hospital and before the tubectomy, the complainant was well assured by op no.2 for the success of the said operation. It was also assured to the complainant that after said operation, she and her husband can join their matrimonial life with free mind as the operation is successful. That as per assurance of op no.2 who is running the above said hospital since long, the complainant and her husband agreed for the said operation. On 2.5.2018, tubectomy operation was conducted upon the complainant under the supervision of op no.2. The ops have also obtained signature of complainant and her husband on many papers stating that same are mere formalities. That an entry with regard to operation was also made in OT register. It is further averred that now complainant has conceived pregnancy despite this operation of tubectomy meaning thereby that operation conducted by op no.2 alongwith team members has failed being done negligently and carelessly. That as the complainant and her husband were under the impression and full assurance that they can consume the matrimonial relations in any manner and there is no question of pregnancy to the complainant, hence they did not take any kind of precaution. That thereafter, at the stage of three months, the complainant and her husband came to know about pregnancy because they could not detect about the pregnancy because they were fully assured about success of operation by op no.2 and when they came to know about the same, then they immediately approached the op no.2 and complained about this, but op no.2 did not give any satisfactory reply. Rather op no.2 behaved with them very rudely and also suggested that in case they do not want to keep the child, she would manage handing over the child to the needy parents and for this she would manage big amount for them. That about this conduct of op no.2, the complainant made verbal complaint to op no.1, but op no.1 also being in league with op no.2 also supported the alleged unsocial and criminal nature advice of op no.2 and in this way, both the ops failed to redress the grievance of complainant and also failed to compensate her. It is further averred that complainant came to know about the pregnancy when she got conducted her ultrasound from Sarsa Imaging Centre at Sirsa and in the report it has been specifically mentioned that complainant is having pregnancy of 18-22 weeks. The complainant was shocked to know that she is having pregnancy of 18-22 weeks, because at the time of conducting the operation by op no.2, op got conducted pregnancy tests and in the report, her pregnancy was shown negative. But now it has been revealed that at the time of conducting the operation, the complainant was pregnant and in this manner, op no.2 is negligent. That due to negligence on the part of op no.2, complainant and her husband have also undergone unnecessary harassment and humiliation. The complainant and her husband also demanded the record and certificate of tubectomy conducted by ops, but they failed to do so. That ops no.1 and 2 have failed to redress the grievance of complainant despite approaching them time and again and this conduct on their part clearly shows that they are playing with the life and health of the innocent persons like complainant and they are committing negligence without any terror. That this conduct on the part of ops will shatter faith of the public upon the medical schemes launched by State Govt. of Haryana. This all has been happened only due to gross negligence and deficiency in discharge of duty and medical negligence committed by ops no.1 and 2. It is further averred that in case if this fact would not be revealed to her in time, then she would definitely have to give birth to a child and in that case the expenses of delivery of child, studies, marriage, residence allowance, maintenance and medical expenses would have to be borne by complainant and the complainant could not give love and affection to that child being unwanted. That this conduct of ops no.1 and 2 has caused lot of mental shock and harassment to the complainant and very purpose of tubectomy operation has been failed and the complainant and her husband undergoing sleepless nights because they are already undergoing critical economic condition and the negligence on the part of op no.1 has increased their difficulties and mental tension, as such she is entitled to compensation of Rs.19,00,000/- from the ops besides the amount as explained above and also amount of Rs.10,000/- as litigation expenses. Hence, this complaint.
2. On notice, opposite parties appeared and ops no.1 and 2 filed written statement taking certain preliminary objections regarding maintainability, no cause of action, estoppal and that complainant has already filed an application under Section 22C of Legal Services Authority Act, 1987 on the same cause of action and on the basis of same facts which is between same parties which is pending and is fixed for 22.4.2019, as such present complaint cannot be filed and is liable to stayed; that this Forum has got no jurisdiction to try and entertain the present complaint; that complainant has concealed the true and material facts from this Forum and has rendered herself disentitled to any relief; that present complaint has been filed by complainant only in order to blackmail the op and there is no case made out for filing the present complaint. The answering op Dr. Santosh Bishnoi is a well qualified MD Gynecologist & Obstetrics and has served as gynecologist in Civil Hospital, Sirsa for more than 20 years and thereafter she has started her private practice and is running a maternity home and she has a large experience in conducting the tubectomy operation. She has been awarded so many appreciation certificates in this behalf by Health Department as well as by Local Hospital Authorities/ Deputy Commissioner, Sirsa for her outstanding performance and that answering op has performed operation of tubectomy upon the complainant as per medical norms and there is no negligence or omission on the part of answering op and complainant has made hypothetical averments. On merits, it is submitted that complainant visited the op and proposed for sterilization on 2.5.2018. The history as disclosed by her at the time of her examination that last date of menstrual period was 25.4.2018. She was advised to come in the next menstrual cycle after stopping of the menses upon which she conveyed that she had been keeping away from her husband since the date of last menstruation and was having abstinence. The answering op conducted vaginal examination and pregnancy test besides other blood test were got conducted. The pregnancy test was also negative and believing upon the version of complainant that there was abstinence since the day of last menstruation, the answering op operated upon the complainant for tubectomy tubalegation was done on 2.5.2018 and complainant was discharged on the same day after the operation. It is further submitted that complainant had concealed the facts at the time of her examination. However, there was no complication or omission on the part of answering op in conducting the tubectomy which was conducted successfully. The complainant had furnished an informed consent for sterilization and it was made clear that after the sterilization operation, if there is missed menstrual cycle then she would report within two weeks of the missed menstrual cycle to the doctor and will avail the facility to get MTP done free of cost. Still it was further made clear that even after failure of the sterilization of operation and if she is not able to get the fetus aborted within two weeks in that situation also it was made clear that she would not be entitled to any compensation over and above the compensation offered under the family planning insurance scheme. The complainant has not put forth her claim for family insurance before the competent authority. The consent letter was signed by complainant herself. It is further submitted that complainant was further made clear in the presence of her sister Sumitra that as the operation of her tubectomy is being done during the menstruation cycle, so she may get pregnancy. However, she insisted upon getting herself operated for sterilization. The operation was successfully conducted and there was no omission of any type. It is further submitted that from the perusal of record produced by complainant alongwith the complaint in the shape of ultrasound report, it is revealed that complainant was examined by way of ultrasound on 15.6.2018 by Sirsa Imaging Centre, Sirsa as referred to by Dr. Parveen Gill and from the perusal of report, it is revealed that she was having pregnancy of 8 weeks + - 1 week/ 6 days and it can be well presumed that at the time of operation, she was already pregnant which could not be detected by oral examination and the HCG strip test showed negative result for the pregnancy. It is further submitted that it may further be made clear that complainant had falsely represented her abstinence from her husband after the last menstrual period. It is further submitted that complainant has already got two children and it cannot be believed that she came to know regarding the pregnancy only after three months. This version of complainant is further falsified from the report of ultrasound got conducted on 15.6.2018 which revealed that she was having pregnancy of 8+-1 weeks 5 days. It is further incorrect that complainant ever came to answering op rather she never came to them after discharge. This all is a concocted version put forth by complainant. Remaining contents of complaint are also denied and prayer for dismissal of complaint made.
3. Op no.3 on being impleaded as a party on notice appeared and filed written statement taking preliminary objections that as per copy of complaint, complainant has not impleaded the answering op as party in the complaint filed by her and as such no relief has been claimed from answering op and that as revealed from written statement filed by ops no.1 and 2, the complainant has filed an application u/s 22 of the Legal Services Authority Act, 1987 before the Permanent Lok Adalat on the same cause of action and between the same parties, which is still pending and is fixed for 11.6.2019 for filing of written statement on behalf of ops no.1 and 2. During pendency of the matter before a competent court of law, same matter cannot be filed in another court of jurisdiction, therefore, present complaint is liable to be dismissed. On merits, it is submitted that on perusal of complaint and written statement, it is revealed that operation for tubectomy was performed on 2.5.2018. The complainant herself has stated in her complaint that after getting ultrasound done on 15.6.2018, it was found that complainant had the pregnancy of 18- 22 weeks. This fact proves that complainant was already pregnant at the time of operation for tubectomy and she had concealed this fact from ops no.1 and 2 and there was no error or omission on the part of insured i.e. ops no.1 and 2. Since the complainant has suppressed and concealed true and material facts from this Forum, she is not entitled to any relief whatsoever. It is further submitted that complainant wants to extract a huge amount on the pretext of pregnancy from ops. The policy for medical establishment professional negligence and errors and omissions was issued to ops no.1 and 2 and same was issued subject to the terms and conditions of the policy. It is further submitted that in case the above complaint succeeds for any unknown reasons, the answering op will indemnify the ops no.1 and 2 only in accordance with the terms and conditions of the policy. With these averments, dismissal of complaint prayed for.
4. The parties then led their respective evidence.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. Learned counsel for complainant has contended that it is proved on record that on 2.5.2018 complainant got conducted tubectomy operation on her person from op no.1 through op no.2 but despite that she had conceived pregnancy which clearly proves the negligence and carelessness of the ops no.1 and 2. It was completely assured by ops no.1 and 2 that after tubectomy operation, there will be no pregnancy but the complainant gave birth to a male child on 16.1.2019 and ops no.1 and 2 are liable to compensate for their act of negligence and also for maintenance of unwanted child.
7. On the other hand, learned counsel for ops no.1 and 2 has strongly contended that there is no negligence on the part of ops no.1 and 2. The operation was conducted on the person of complainant as per all medical norms and she was discharged in a very satisfactory manner. There is no negligence on the part of ops no.1 and 2. It was disclosed by complainant herself that menstruation period had started from 25.4.2018 and on her assurance tubectomy operation was conducted on 2.5.2018 even after getting report of pregnancy test as negative. It has further been contended that from the evidence on record, it can be presumed that before the date of tubectomy operation, the complainant was already pregnant. As per report of ultrasound dated 15.6.2018, she was having pregnancy of 8 weeks +- 1 weeks/ 6 days. Even during the pregnancy, she did not report to the ops no.1 and 2 and did not come forward for abortion which clearly indicates that she is consenting party for third child, as such ops no.1 and 2 are not liable for any compensation. Ld. counsel for ops no.1 and 2 has relied upon judgment of the Hon’ble Punjab and Haryana High Court in case titled as State of Haryana and another vs. Smt. Babli and others, 2014 (2) RCR (Criminal) 933.
8. Learned counsel for ops no.1 and 2 as well as learned counsel for op no.3 have also contended that before filing of present complaint, complainant had already filed an application under Section 22C of the Legal Services Authority Act, 1987 before Permanent Lok Adalat which is pending trial and during pendency of the aforesaid case, complaint filed by complainant before this Forum is not maintainable at all and is liable to be dismissed. Learned counsel for op no.3 has also contended that since there is no negligence and carelessness on the part of ops no.1 and 2, as such op no.3 is also not liable to reimburse any loss or any amount of compensation to be paid by ops no.1 and 2 as per terms and conditions of the policy.
9. We have considered the rival contentions of the parties and have gone through the case file carefully.
10. The perusal of the record reveals that complainant in order to prove her allegations in the complaint has furnished her affidavit Ex.CW1/A in which she has deposed and reiterated all the averments made in the complaint. She has also tendered copy of registration Ex.C1, copy of prescription slip Ex.C2, copy of ultrasound report Ex.C3. On the other hand, ops no.1 and 2 produced affidavit of Dr. Santosh Bishnoi Ex.RW2/A, copy of certificate Ex.R1, copy of prescription slip Ex.R2, copy of card Ex.R3, copy of prescription slip Ex.R4, copy of ultrasound report Ex.R5, copy of informed consent Ex.R6 and Ex.R7, copy of urine report Ex.R8, copy of consent Ex.R9, copies of appreciation letters Ex.R10 to Ex.R13, copy of policy schedule Ex.R14, copy of notice of Permanent Lok Adalat Ex.R15 and copy of application under section 22(c) of Legal Services Authorities Act, 1987 Ex.R16. Op no.3 has tendered affidavit of Sh. Sanjay Aggarwal, Branch Manager as Ex.R1/A.
11. The first objection of ops is qua pendency of the application under Section 22 (c) before Permanent Lok Adalat. The perusal of written statements as well as affidavits of ops clearly reveal that they have specifically stated and deposed that an application under Section 22 (c) of Legal Services Authorities Act, 1987 was filed before Permanent Lok Adalat on the same cause of action and between same parties which is still pending, as such present complaint does not appear to be maintainable at all. Though during the course of arguments, learned counsel for complainant has stated at bar that said application has been withdrawn by complainant, but however, the complainant has not placed on record any copy of the statement of withdrawal or copy of the order for withdrawal of complaint/ application before Permanent Lok Adalat. It is settled principle of law that simultaneously two complaints cannot be filed before two different courts of law on the same cause of action between same parties.
12. As per allegations of complainant on 2.5.2018, tubectomy operation was conducted on the person of complainant by op no.1 through op no.2 and thereafter she conceived and became pregnant and gave birth to a child. The perusal of evidence of ops no.1 and 2 reveals that as per prescription slip Ex.R4, on 2.5.2018, the pregnancy test was found to be negative and moreover, the perusal of evidence of ops reveals that complainant had stated before the doctor that menstruation period was started from 25.4.2018 and thereafter operation was conducted on her person on 2.5.2018 and thereafter ultrasound was conducted on 15.6.218, report of which is Ex.R5 which reveals that there was pregnancy of 8 + - 1 week 6 days which lead to the conclusion that complainant had already conceived before the date of operation and pregnancy was detected on 15.6.2018 when ultrasound was got conducted. Moreover, after the detection of pregnancy, the complainant did not come forward to go for abortion of the pregnancy, as a result of which she gave birth to a male child on 16.1.2019. So, it can be presumed from evidence of parties that prior to the date of operation, she had already conceived and was pregnant, but however, pregnancy was detected after ultrasound which was conducted on 15.6.2018. So there does not appear to be any negligence or carelessness on the part of ops no.1 and 2. Moreover, we find force from the judgment of the Hon’ble Punjab and Haryana High Court in case titled as State of Haryana and another vs. Smt. Babli and others (supra) in which it was observed that “Medical negligence- Doctor performed sterilization operation when plaintiff had two months pregnancy- A child born after 7 months of operation- Cannot be held that it was failure of operation- Held:- (i) There is no delivery of any child because of pregnancy after the said operation as the child has been delivered by the plaintiff because of the two months pregnancy which was already there when she had undergone sterilisation operation- She did not disclose to the Doctors that she was not having menstruation from the last three months. (ii) Plaintiff not entitled to any compensation.
13. In view of above discussion, we do not find any merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. President,
Dated: 11.12.2019. Member. District Consumer Disputes
Redressal Forum, Sirsa.
