Date of Filing : 27.06.2016
Date of Disposal: 27.05.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU. J.JAYASHANKAR, B.A, B.L. ..… MEMBER-I
THIRU P.MURUGAN, B.Com., ….. MEMBER-II
CC. No.09/2018
THIS FRIDAY, THE 27th DAY OF MAY 2022
Mrs.Komala,
W/o.R.A.Sekar,
Perumal Koil Street, Vangathur Village,
Pallipattu Taluk,
Thiruvallur District. .....Complainant.
//Vs//
1.Dr.Ayisha Sayin, M.B.B.S., DGO.
Government Doctor,
Thiruttani Government Hospital,
Thiruttani, Thiruvallur District.
2.The Medical Superintendant/Chief Medical Officer,
Government Hospital,
Thiruttani. .........Opposite parties.
Counsel for the complainant : Mr.A.R.Poovannan, Advocate.
Counsel for the opposite party : Mr.D.Jaganathan, Advocate.
This complaint is coming before us on various dates and finally on 23.05.2022 in the presence of Mr.A.R.Poovannan, Counsel for the complainant and upon hearing the arguments of the complainant and upon perusing the documents and evidences of both parties, this Commission delivered the following;
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 seeking direction to the opposite parties to pay a sum of Rs.1,00,000/- towards compensation for mental agony and hardship cuased to the complainant and to pay a sum of Rs.5,000/- towards cost of this proceedings.
Summary of facts culminating into complaint:-
It is submitted by the complainant that she got admitted with the 2nd opposite party’s hospital on 10.08.2005 for delivery. She was taken to the operation theater accompanied by the 1st opposite party and Dr.Sivakumar who is the anaesthetist. A child was delivered and the 1st opposite party also performed tubectomy operation and issued the sterilization certificate on the same day by the Government hospital Thiruttani. After five years when the complainant missed her periods and on testing it was found that she was pregnant and on taking CT scan it is found that the foetus was growing in the tube. Immediately on 02.04.2010 emergency Laparatomy was done under spinal anesthesia which caused untold mental agony to the complainant. The complainant thus alleging deficiency in service caused legal notice dated 16.08.2010 to the opposite parties and filed a complaint earlier which was dismissed for default and now the present complaint was filed on the same cause of action for the reliefs as mentioned above.
Defense of the Opposite Parties by way of Written Version:-
Both opposite parties filed written version disputing the allegations of medical negligence contending interalia that the complaint filed without Section 80 CPC notice was not maintainable. It was also submitted that the sterilization operation may fail in the ratio of 0.75% per hundred women and there is no fault on the part of the Doctor who performed the operations or the medicines prescribed. Thus they prayed for the dismissal of the complaint.
Complainant filed proof affidavit and submitted documents marked as Ex.A1 to 6.
On the side of opposite parties proof affidavit was filed and document marked as ExB1 was submitted by them.
Point for consideration:
Whether the complainant is successful in proving the alleged medical negligence and deficiency in service on the part of the opposite parties and if so what reliefs he is entitled to?
Point:
Documents Ex.A1 to A6 was filed by the complainant and on perusal of the same the following facts emerge;
Sterilization Certificate issued by the opposite party dated 10.08.2005 was marked as Ex.A1;
Scan Report dated 02.04.2010 was marked as Ex.A2;
Scan Bill dated 02.04.2010 was marked as Ex.A3;
Case Summary of Komala was marked as Ex.A4;
Notice issued by Federation of Consumer Organizations Tamil Nadu & Pondicherry to the opposite parties marked as Ex.A5;
Petition and orders in CMP No.17/2012 dated 30.08.2013 was marked as Ex.A6.
Documents Ex.B1 filed on the side of opposite party was marked as Ex.B1 and the same was perused;
Heard the oral arguments adduced by the learned counsel for the complainant and also perused the written arguments filed by him. Inspite of providing sufficient opportunities there was no representation for the opposite parties and hence we decided to consider the pleadings and documents submitted by the opposite parties and to decide the case on merits.
On perusal of the pleadings and documents it is amply evident that the complainant got pregnant for the 2nd time in 2010 even after the sterilization was done on 10.08.2005. The documents Ex.A2 to A4 reiterate the said finding. However, the complainant has not come out with a particular case and evidence as to how the Doctor who conducted the sterilization operation to the complainant committed any negligence or deficiency in service so that the sterilization operation got failed and the complainant got pregnant for the 2nd time. The complainant has not established the act or omission by the opposite parties which deviated from the accepted standards of practice and which caused the failure in sterilization operation by providing any medical literature and medical report.
The opposite parties by way of written version submitted that it is a fit case to be dismissed for want of section 80 CPC notice. However, we are of the view that the proceeding before the Consumer Commission being summary in nature giving importance to technicalities will defeat the very purpose of social welfare legislations like the Consumer Protection Act. Hence we are of the view that the complaint is maintainable. It is also proved that a pre suit notice was given dated 16.08.2010 by the complainant. However when we decide the issue with regard to the deficiency in service or negligence committed by the opposite parties in carrying out the sterilization operation we are unable to find any concrete evidence to hold them liable. In support of our view we find precedents by the Apex Court in State Of Punjab vs Shiv Ram & Ors decided on on 25 August, 2005 wherein it has been stated as
“We are, therefore, clearly of the opinion that 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 proof of negligence shall have to satisfy Bolam's test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100 % exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery“
“Further in the decision rendered in Lok Nayak Hospital v. Prema, reported in 2018 SCC OnLine Del 10334, dated 06-08-2018, it was held that
It was observed that medically there is never a 100% chance of success in sterilization operations. The fact that the operation was not successful, that by itself could not be a reason to hold the appellant and its doctors guilty of negligence. There were no specific allegations against the doctors for committing negligence while conducting the operation; and in absence of the same, the appellant could not be held liable in fact or in law. Moreover, the respondent, before the operation, had signed the forms that clearly stated that the sterilization process is not always successful and there are some chances of failure, and if the operation is unsuccessful, the appellant or the doctor concerned will not be liable. In light of the discussion as mentioned herein, the Court allowed the appeal and set aside the judgment impugned“
The Exhibit submitted by the opposite parties (Ex.B1) also support the view that out of 100 women who undergo sterilization operation 0.75 will meet failure. In such circumstances we hold that no negligence or deficiency in service could be attributable to the opposite parties in performing the sterilization operation.
However we should not lost sight of the G.O. Ms. No 183, Helath and Family Welfare Department dt. 11.02.2006 wherein the Govt had issued the following orders,
The Family Planning Insurance Scheme launched by the Government of India throughout the Country be implemented in the State of Tamil Nadu with effect from 29.11.2005;
Payment of compensation from the Corpus Fund created in G.O.Ms.No.53, Health and Family Welfare Department dated; 31.03.2005 be dispensed with from the date on which the Family Planning Insurance Scheme was launched.
The Director of Family Welfare should follow the various features given in the scheme manual for the Family Planning Insurance Schemes communicated by Government of India.
In such circumstances we are of the view that irrespective of any finding the complainant is entitled to the amount mentioned under Section 1C i.e. for failure of sterilization an amount of Rs.30,000/-. The point is thus answered accordingly.
In the result, this Complaint is allowed in part and 1st and 2nd opposite parties are jointly and severely directed to pay Rs.30,000/- (Rupees thirty thousand only) to the complainant as per the G.O.Ms.No.183 within four weeks from the date of receipt of copy of this order failing which the said amount shall carry 9% interest from date of complaint till realization. Cost of Rs.5,000/- (Rupees five thousand only) awarded towards litigation expenses.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 27th day of May 2022.
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MEMBER-II MEMBER-I PRESIDENT
List of documents filed by the complainant:-
Ex.A1 10.08.2005 Sterilization Certificate. Xerox
Ex.A2 02.04.2010 Sean Report. Xerox
Ex.A3 02.04.2010 Scan Bill. Xerox
Ex.A4 02.04.2010 Case Summary of Komala. Xerox
Ex.A5 16.08.2010 Notice Xerox
Ex.A6 30.08.2013 Petition and order in CMP No.17/2012. Xerox
List of documents filed by the oppostie parties:-
Ex.B1 .............. Copy of Williams Obstetrics Xerox
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MEMBER-II MEMBER-I PRESIDENT
