Date of filing: 08.08.2019
Date of order: 27.02.2023
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE
PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A., B.L. PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc., B.L. MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A., MEMBER-II
MONDAY THE 27TH DAY OF FEBRUARY 2023
CONSUMER COMPLAINT NO. 20/2019
Tmt. D. Gayathri
W/o. Deepakkumar
No.84/A, Bajanai Koil Street,
Sirunaimalli Village
Nemeli Taluk
Vellore District. ...Complainant
Vs
Dr.K.M. Malliga Selvaraj M.B.B.S.,D.G.O.,
Prasanna Nursing Home,
No.17 Town Hall 1st Street
Arakkonam, Arakkonam Taluk
Vellore District ……Opposite party
Counsel for complainant : Thiru. R. Kalaichelvan
Counsel for opposite party : Thiru. Dr. B. Cheran
ORDER
THIRU. A. MEENAKSHI SUNDARAM, B.A.,B.L.PRESIDENT
This complaint has been filed under section 35 of Consumer Protection Act 2019. The complainant are directed the opposite party to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs Only) as damaged for mental agony inconveniences, loss and hardship due to gross deficiency and unfair wrong diagnose and wrong treatment of the opposite party along with interest at the rate of 18% per annum and to pay a cost of proceedings or further suitable orders.
1.The case of the complaint is briefly as follows:
On 24.11.2013, the complainant delivered a male baby and she has decided to got family planning at the opposite party hospital. Accordingly tubectomy was done in the opposite party hospital on 24.11.2013 for which the complainant paid a sum of Rs.50,000/- as a consideration for the aforesaid operations. In 2008 she had unbearable stomach pain therefore she has checked full body medical examinations and she was shocked to learn that she has been diagnosed with seven month pregnant and the very same day the complainant had approached the opposite party hospital and informed about her pregnancy but the opposite party told that can no longer do anything take care of what you’ve done go out and also the opposite party threatened the complainant. Subsequently on 13.04.2018 she was admitted at the Governments Hospital for Women and Children Egmore Chennai and she gave a birth of female child. The main allegation of the complainant is that due to negligent operation of Tubectomy the complainant got unwanted pregnancy. Therefore the opposite party is liable to compensate the complainant for the same. Hence this complaint.
2. The Written version of opposite parties are briefly as follows:
The opposite party denying the allegation of the complainant but admitting that on 24.11.2013 a male baby was born to the complainant by caesarean by C-section. But, the complainant suppressed the aforesaid facts in her complaint. Before the afterbirth the c-section, she was explained and obtained informed consent from the complainant and also they obtained consent for the tubectomy as well. Further it is not true that the complainant paid the way of fees Rs.50,000 she has paid only Rs.25,000/-. It also denied that after the family planning was done she developed unbearable stomach pain. Infact she has discharged from the hospital in 02.12.2013 itself without any complications. Thereafter the complainant never visited till 20.09.2017 well she was came to the opposite party hospital on 20.09.2017 on the very same day an examination was done in the urine and found positive for pregnancy subsequently a scan was done in which also confirmed that the complainant having pregnant for 7weeks and 3days and not 7 months and 3 days as alleged by the complainant and also on receipt of the scan report the opposite party advised the complainant to do miscarriage as per the MTP Act on free of charge. Whereas the complainant wants to know the sex identity of foetus it was denied by the opposite party and the complainant don’t want to terminate the pregnancy. Further the opposite party also contended that there is a possibility for failure in the family planning Tubectomy upto 4-7% and the same was accepted in the medical protocol. Further since there is a possibility of failure in the family planning a scheme was framed by the Govt of India to compensate such a case monetarily. Further this opposite party made a representation to the director of medical service and family welfare to request sanction the compensation amount due to for which the complainant also gave a consent. Accordingly the family welfare department paid a sum of Rs.30,000/- as a compensation for the aforesaid defective family planning. the said document was morphed by the opposite party. Therefore there is no deficiency in service on the part of opposite party.
3. Proof affidavit of complainant filed. Ex. A1 to Ex.A11 marked. Proof affidavit of opposite parties filed. Ex.B1 to Ex.B8 were marked. Written argument of both side filed. Oral arguments of both parties heard.
4. The Points that arises for consideration are:
1. Whether there is any deficiency in service on the part of the opposite
parties?
2. Whether the complainant is entitled for relief as claimed in the complaint?
3. To what relief, the complainant is entitled to?
5. POINT NOS. 1 & 2:
The complainant was gave birth to a male child in the opposite party’s hospital by caesarean and a Tubectomy was done on 24.11.2013 thereafter in 2018 the complainant got pregnant therefore the complainant approached the opposite party, the opposite party had confirmed that she was having 7weeks and 3 days pregnancy. The allegation of the complainant is that due to negligent Tubectomy operation by the opposite party got unwanted pregnancy and caught child which is bother to her. Therefore the opposite party should be compensate the complainant. On the other hand the counsel of opposite party it is true that the complainant delivered a male baby by caesarean in C-section and very same day a Tubectomy was also done to her. Before doing the aforesaid Tubectomy she was explained nature and consequences of the aforesaid Tubectomy operation and she was duly signed in the Proforma in Ex.B3. which clause-7 states as follows:
7.FLk;g ey mWit rpfpr;irapdhy; Vw;gLk; rpf;fy;fs;/mWit rpfpr;ir Bjhy;tp cl;gl Vw;gLk; epfH;tpy; ne;jpa murpd; FLk;g ey fhg;gPl;Lj; jpll;j;jpd;fPH; eilKiwapy; cs;s tpjpfspd;go tHA;fg;gLk; nHg;gPl;Lj; bjhifia KGikahd, nWjpahd jPh;thf Vw;Wf;bfhs;Btd;.
8. FLk;g ey mWit rpfpr;ir Bjhy;tpa[w;W mjd; fhuzkhf ehd;/vdJ kidtp fUt[w;why; mt;thW fUt[w;w nuz;L thuA;fSf;Fs; vd;dhy; fUr;rpijt[ bra;a Koahky; Bghdhy;, ne;jpa murpd; FLk;geyfhg;gPl;Lj; jpl;lj;jpd;fPH;: tHA;fg;gLk; nHg;gPl;Lj; bjhiff;Fk; mjpfkhf mWit rpfpr;ir Bjhy;tpa[w;wjw;Bfh my;yJ fUtpypUf;Fk; FHe;ijapd; tsh;g;g[r; bryt[f;fhfBth, ve;j xU ePjp kd;wj;jpd; K}ykhft[k;, nHg;gPl;Lj; bjhif Bfhukhl;Bld; vd;Wk; cWjpaspf;fpBwd;.
In which clause 7 and 8 makes clear that in case if there is any stoppage of menses for a period of 2 weeks she has to report to the concern hospital. In clause- 7 if there is any complication or failure of the surgery she was consented for getting compensation under the Government of India Family Welfare Insurance Scheme. Therefore in the present case immediately after reported by the complainant the opposite party took an application from the complainant and forwarded to the concern department and she was also received the compensation from the Govt of Tamil Nadu. Therefore the complainant had no right to agitate once again. In this regard the counsel for the complainant referred various decision of the State Commission, National Commission as well. Further if the complainant don’t want to continue the pregnancy there is a possibility of termination of pregnancy which the complainant not opted for. Therefore the complainant cannot claim compensation. In this regard the counsel for the opposite party referred the
The Hon’ble State Consumer Disputes Redressal Commission, Chennai
FA No.588/2007 dated 28.01.2011
- Kamadhenu
-
Dr. Girija Rajkumar
Held that,
Para 12.
The Apex court of the land, had an occasion to consider the sterilization operation, and its failure, in State of Punjab .Vs. Shiv Ram and other. Reported in (2005) 7 Supreme Court Cases 1, where it is elaborately considered, taking the medical literature also, including resection of fallopian tube, probably that is the method adopted here, that is the “pomery” procedure. The Apex Court, considering the text book of gynaecology, as well as the statistics available therein, has quoted “Spontaneous recanallsation or fistula formation is perhaps the most common cause of failure. Though these are generally non-negligent causes of failure, it is very difficult to convince the patient of they are not informed before and about the possibility”. It is not the case, that the opposite party was not qualified, or inexperienced, so as to say that she should have committed error, in the process. The Apex Court, considering the medical literature, has come to the conclusion that “Surgeon cannot be held liable tin contract unless plaintiff alleges and proves that surgeon had assured 100 percent success of surgery and it was only on basis thereof that plaintiff had agreed to undergo surgery.” In our case also, s held placing reliance upon Ex.B1, no 100% assurance was given and failure also was informed. It is the further observation of the Apex Court “Failure due to natural causes would not provide any ground for a claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception inspite of having undergone the sterilisation operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed. Once the woman misses the menstrual cycle, it is expected of a couple to visit the doctor and seek medical advice. Sec.3(2) read with Explanation II thereto, of the Medical Termination of Pregnancy Act, 1971 provides under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act 1971.” This dictum is followed by many State Commissions also, as pointed out by the learned counsel for the opposite party. To deviate from the above ruling, and to confirm or conclude that the opposite party should have committed negligent act, we find no material, that too, in the absence of the complainant, approaching the doctor, who performed the sterilisation, immediately after the stoppage of menstruation period.
On going through the aforesaid judgments in our considered opinion that the complainant is not entitled for any compensation. Since she has already received a compensation from the Government of Tamil Nadu, the same was suppressed by the complainant, Hence on this ground as well this complaint is liable to be dismissed. Hence, these point Nos. 1 and 2 are answered.
6. POINT NO.3: As we have decided that the Point Nos.1 and 2 that there is a deficiency in service on the part of the opposite parties. This Point No.3 is also answered accordingly.
7. In the result, this complaint is dismissed. No costs.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 27th February, 2023.
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MEMBER – I MEMBER – II PRESIDENT
LIST OF COMPLAINANT SIDE DOCUMENTS:
Ex.A1 – Copy of the Aadhaar card of the complainant
Ex.A2.-24.11.2013 – Copy Dt. prasanna Nursing home family planning orpiment
receipts
Ex. A3- 24.11.2013 – Copy of birth certificate of complainant son Hithesh
Ex. A4 -02.12.2013 – Copy of discharge summary of the Prasanna nursing home
Ex. A5- 02.12.2013 – Copy of Prasanna nursing home medical bill
Ex. A6- 30.04.2018 – Copy of birth certificate of D.Theja shree
Ex. A7- 05.05.2018 – Copy of discharge certificate of Govt. hospital Egmore Chennai
Ex. A8-19.05.2018 – Copy of legal notice of the complainant
Ex. A9- 04.06.2018 – CSR.No. 88/2018 copy of the Nemeli police.
Ex.A10-20.09.2019 - Copy of Murugan Diagnostil Centre Arakonam Complaint
Pregnancy Positive report
Ex.A11-20.09.2017 - Copy of Opposite party Hospital issue pregnancy positive
report of the complainant
LIST OF OPPOSITE PARTIES SIDE DOCUMENTS:
Ex.B1 - Copy of PNH- Consent
Ex.B2 - Copy of Tamilnadu Government Family Welfare Requisition
Form
Ex.B3 - Copy of Muthu Scans Cash Bill
Ex.B4 - Copy of Murugan Lab test
Ex.B5 - Copy of Prasanna Nursing Home Scan Report
Ex.B6 - Copy of PNH Letter to Deputy Director, Vellore
Ex.B7 - Copy of Claim Form for Family Planning Indemnity Scheme
Submitted by the complainant
Ex.B8 - Copy of Deputy Director of Family Welfare District Family
Welfare Bureau Vellore
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MEMBER – I MEMBER – II PRESIDENT
