BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.137/2008 Order dated this the 29th day of April 2009 COMPLAINANT/S 1. Sri.Chikkonu, 2. Smt.Shanthamma W/o Chikkonu, Both are R/o Velagerehalli, Maddur Taluk, Mandya District. By Sri.Yogananda., Advocate) -Vs- OPPOSITE PARTY/S Dri.Savitha, Retired Senior Specialist, Mandya Road, K.M.Doddi, Maddur Taluk, Mandya District. (By Sri.M.J.Jain., Advocate) Date of complaint 24.12.2008 Date of service of notice to Opposite party 06.01.2009 Date of order 29.04.2009 Total Period 3 Months 23 Days Result The complaint is dismissed. However there is no order as to costs. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986 against the Opposite party claiming compensation of Rs.10,00,000/- with interest and costs. 2. The brief facts of the complaint are that the complainants are husband and wife, they are agricultural coolie and out of wedlock in 1996, they got 3 female children in the year 1997, 2000 and November 2003. Therefore, they were not inclined to bear another child and approached the Opposite party working at Government Hospital, Maddur for Tubectomy Operation and operation was conducted at Government Hospital, Maddur on 16.12.2003 and 2nd Complainant was informed that operation is successful and there is absolutely no chance of begetting children in future. But, to the utter shock, the 2nd Complainant again conceived and delivered child on 28.03.2008. It was due to defective procedure in effecting tubectomy operation by Opposite party. The birth of 4th child is a burden to them due to their financial status and it is very difficult to take care of 4th child. Therefore, the Opposite party has committed deficiency in service and legal notice was issued and untenable reply was sent. Therefore, the present complaint is filed. 3. The Opposite party was served with notice and has filed version, contending that the complainants are not Consumers as they availed free service in the Government Hospital. The complainants have to pursue the remedy against the State and the complaint is bad as there is no question of contract between the Opposite party and the complainants. The complaint is barred by limitation as the surgery was done in the year 2003. It is denied that the Opposite party has not followed proper procedure while conducting tubectomy and there is deficiency in service. For conducting tubectomy operation in Government Hospital, the midwives or nurses will educate the publics about the family planning and success rates, chances of failure and after being satisfied, if anybody intends to undergo tubectomy, the said persons will be advised by the midwives or nurses to undergo tubectomy and they will be recommended for tubectomy in the camps, which is organized by the State free of cost. Further, in order to facilitate the general publics and to avoid unnecessary burden to the publics, the State has provided free Medical Termination of Pregnancy all over the State and any person can undergo the procedure of MTP free of cost and public can avoid the unwanted burden. The complainant has consented for all the conditions that there are chances of failure and in the event of failure of operation, they shall not claim any relief against the doctor and State and they will not approach any court. After accepting terms and conditions, the complainants have agreed to undergo the tubectomy operation and executed a consent letter. Therefore, the complaint is liable to be dismissed with costs. 4. During trial, the 2nd Complainant is examined and documents Ex.C.1 to C.3 are produced. The Opposite party is examined and documents Ex.R.1 to R.3 are produced. 5. We have heard both the sides 6. Now the points that arise for our considerations are:- 1. Whether the complainant is a Consumer? 2. Whether the complaint is barred by limitation? 3. Whether the Opposite party has committed deficiency in service by medical negligence by conducting tubectomy operation? 4. Whether the complainant is entitled to compensation sought for? 7. Our findings and reasons are as here under:- 8. The undisputed facts are that the 2nd Complainant has undergone tubectomy operation on 16.12.2003 at Government Hospital, Maddur and thereafter the 2nd Complainant again conceived and delivered child on 28.03.2008. The Opposite party has contended that the complainants are not the Consumers as per the Consumer Protection Act, as they availed free service. Nowhere in the complaint, the complainants averred that they paid any amount for the tubectomy operation, but in the affidavit, the 2nd Complainant whispered that she has paid Rs.100/- to the doctor for operation and receipt was not given. So, it is an improvement. The Opposite party has denied the same. The Opposite party has admitted that the complainants have taken out patient slip in the hospital and case was recommended for tubectomy operation and accordingly operation was done. We have to consider whether obtaining a out patient slip amounts to payment of charges for undergoing operation. In the decision reports in I (2009) CPJ page 192 in the case of Chief Executive Officer, Zilla Parishad Vs- Saguna Bai Navalsing Chavan, the Honble National Commission has held when tubectomy operation is performed free of cost and mere nominal registration fee is not a charges for operation and the complainant got incentive from Government for undergoing operation, the complainants are not consumers and therefore, they are not entitled to relief under Consumer Protection Act. Even there is failure of the tubectomy operation and the complainant conceived again, but she could have approached the hospital for MTP, which was to be conducted free of cost. So, in the present case also except obtaining a out patient slip, there is no payment for operation at all and the Government will arrange family planning operation often and often free of charge with incentives and the complainant has admitted that in the camp, she has undergone tubectomy operation like others. Under these circumstances, we have to hold that the complainant is not a consumer. 9. The Opposite party has contended that the complaint is barred by limitation on the ground that the tubectomy operation was conducted in December 2003, but the complaint is filed in December 2008. The complainant has pleaded the cause of action arose on 16.12.2003 (date of operation) and on 28.03.2008, 10.04.2008 and 30.04.2008 and subsequently. As per the evidence, the complainant conceived after the operation in 2003 and delivered child on 28.03.2008. So, the 2nd complainant should have conceived in the year 2007. So, one will come to know the successfulness of the tubectomy operation only, if a women conceives again and she will not go for testing after tubectomy operation whether it was successful or not. In the present case, when the 2nd Complainant became pregnant or conceive is not revealed, but the delivery of the child took place on 28.03.2008 as per pleading, so 9 months earlier to this date, she must have conceived. Therefore, in June 2007 she must have conceived. Therefore, the complaint is within time and therefore the complaint is not barred by limitation. 10. The complainant has alleged that the Opposite party has not at all followed the proper procedure while effecting tubectomy operation and therefore she gave birth child again and thus committed deficiency in service. The Opposite party has denied the same. Admittedly on 16.12.2003, the 2nd Complainant has undergone tubectomy operation conducted by the Opposite party in Government Hospital at Maddur. As per the case of the Opposite party, the complainants have given consent for operation as per Ex.R.2 and the women coming for tubectomy operation will be explained about the failure of the operation. Ex.R.2 is in Kannada language and it is specifically mentioned that the operation for family planning is known method and at some times it may be failure and in that case the doctor, Government hospital and even the relatives will not be made responsible and she will not approached any court. In the decision I (2008) CPJ 130 in the case of Esakkimuthu Vs- P.Dhanam, the Honble National Commission has held relying upon the decision of the Supreme Court in the case of Punjab Vs- Shiva Ram VI (2005) CPJ 14 that; the methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. Section 3(2) explanation II provides that 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 and further observed that is why the Government has formulated a scheme to give some compensation. Further, the Honble National Commission in the case of Lakshmi Vs- Director of Medical Services, Family Planning and Welfare Department reported in I (2008) CPJ page 460, the Honble National Commission has held that in case of failure of tubectomy operation, the medical negligence or deficiency in service cannot be attributed. Merely because, the complainant conceived again and gave birth to child is not sufficient to attract principle of resipsa loquitur. Failure due to natural causes would not provide any ground for claiming compensation, doctor not expected to give 100% guarantee of success of operation and complainant is not entitled to relief, but the Director of Medical Services, Family Planning and Welfare Department should consider the case for exgratia payment. So, in the facts of this case are similar to the facts of the above decisions and therefore, the Opposite party as a Government Doctor has conducted tubectomy operation with consent explaining the consequences and merely because, after 4 years of the operation, the complainant has conceived and deliver the child, the medical negligence in the operation cannot be attributed, because Doctor cannot give 100% success of the operation and failure of the operation may be due to natural causes and 2nd Complainant missed the menstruation after 4 years of the tubectomy operation, she should have approached Government Hospital, where tubectomy operation is conducted for getting medical termination of the pregnancy free of cost, which is allowed under law, but the complainants kept quiet without taking any care, but only after delivery of the child they opened their eyes and issued notice to Opposite party claiming compensation alleging medical negligence. It is not the case that after tubectomy operation, they went scanning through qualified medical Surgeon and found the operation is defective, no such report is produced. Further, the tubectomy operation was conducted in Government Hospital under family planning and so the Opposite party is not personally liable and even the Government is not liable to pay any compensation for failure of tubectomy operation conducted in Family Planning Scheme. Therefore, the complainants have failed to prove medical negligence against the Opposite party and they are not entitled to any compensation under the Consumer Protection Act. 11. However, the complainants are at liberty to approach the Department of Health and Family Planning Services for exgratia payment. 12. In the result, we proceed to pass the following order; ORDER The complaint is dismissed. However there is no order as to costs. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 29th day of April 2009). (PRESIDENT) (MEMBER)
