West Bengal

Bankura

CC/44/2016

Smt. Mala Halder - Complainant(s)

Versus

Dr. Shiba Prasad Dutta - Opp.Party(s)

Jayanta Kumar Mukhopadhyay

31 Jul 2023

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA

  Consumer Complaint No. 44/2016

Date of Filing: 08.07.2016

Before:                                        

1. Samiran Dutta                              Ld. President.      

2. Rina Mukherjee                          Ld. Member. 

3. Siddhartha Sankar Bhui            Ld. Member.

 

For the Complainant:  Ld. Advocate Debashish Chakraborty

For the O.P.1 : Ld. Advocate Tapas Roy     For the O.P.2 & 3 : Ld. G.P., Bankura

 

Complainant  

Smt. Mala Haldar, W/o Sri Suman Haldar, at Malleswar Pally, Lalbazar, Bankura

Opposite Party  

1.Dr. Shibaprasad Dutta, Taldangra, Bankura

2.MSVP, BSMCH, Bankura

3.Block Medical Officer, Anchuri Block Primary Health Centre, P.O.Kenduadihi, Bankura

 FINAL ORDER / JUDGEMENT  

Order No.47

Dated:31-07-2023

Both parties file hazira through advocate.

The case is fixed for argument.

After hearing argument from both sides the Commission proceeds to dispose of the case as hereunder: -

The Complainant’s case is that she being a housewife having already two child underwent Tubectomy / Sterilization operation on 15/12/2015 at Anchuri BPHC, Bankura under the Family Planning Scheme of Govt. of India. But subsequently she conceived and was admitted with ligation failure with pregnancy at BSMCH, Bankura and discharged on 30/03/2016 therefrom. Thereafter she approached O.P.1 for medical termination of her pregnancy at the stage of 18 weeks but the O.P.1 without taking care of medical treatment and management in such case performed the desired operation violating the relevant laws. The Complainant has therefore approached this Commission for appropriate relief.

O.P.1, 2 & 3 separately filed written version to contest the case denying all the material allegations made in the complaint and contending inter alia that it is not a case of medical negligence on the part of the O.P. Authority / Doctor. In particular O.P.1 has flatly denied to the abortion of the pregnancy of the Complainant.

                                                                                                                                                                                         Contd……p/2

Page: 2

-: Decision with reasons: -

At the outset the Commission takes up the maintainability issue of the instant case as raised by the Ld. Advocates for the O.P. Admittedly the Complainant underwent Sterilization Operation at Anchuri BPHC free of charges which is purely a Govt. Hospital / Health Centre and as such the medical service rendered by the O.P. Authority / O.P. Doctor is not a service within the definition of Section-2 (42) of Consumer Protection Act, 2019 as decided by the Apex Court in India Medical Association Vs. V.P. Shantha reported in AIR 1996 SC 550 and reaffirmed in a subsequent decision dated: 07/12/2021 in Nivedita Singh Vs. Dr. Asha Bharati & Ors in Civil Appeal No.103/12.

In a recent decision dated: 27/02/2023 in C.C. No.261/18 (Manish Kumar Vs. AIIMS, New Delhi) Hon’ble NCDRC has held in the same line.

Apart from this,  the Supreme Court in AIR 2005 SC 3280 State of Punjab Vs. Shiv Ram & Ors. has held that failure of successful Sterilization Operation is attributable to causes other than medical negligence and the State Govt. should think of devising and making provision for a welfare fund in collaboration with Insurance companies to compensate the victim.

The Complainant may receive the compensation under the Family Planning Scheme but there is no material on record to that effect.

For the reasons stated above the Complainant being the recipient of free medical service from the concerned Hospital / Doctor is not a Consumer within the purview of  the Consumer Protection Act, 2019 and as such she is not entitled to get any relief in this case on maintainability issue as well as on merit of the case.

The case therefore fails.

Hence it is ordered……..

That the case be and the same is dismissed on contest against the O.P. but without cost.

Both parties be supplied copy of this order free of cost.

 

 ____________________                _________________            _________________

HON’BLE   PRESIDENT           HON’BLE MEMBER        HON’BLE MEMBER