Haryana

Ambala

CC/200/2019

Amandeep Kaur - Complainant(s)

Versus

Kapoor Hospital Dr. Sudhir Kapoor - Opp.Party(s)

J.S. Saini

23 Oct 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	200 of 2019
Date of Institution	:	13.06.2019
Date of decision	:	23.10.2023

 

1. Amandeep Kaur aged 33 years wife of Shri Bhupinder Singh

2. Bhupinder Singh aged 39 years son of Shri Mihan Singh

Both residents of village Raipur Kalan, Tehsil and District Mohali (Punjab).

…..Complainants

                                                                                     Vs.

 

1. Kapoor Hospital- Dr.Sudhir Kapoor, Near Police Line Chowk, Civil Lines, Ambala City.
2. United India Insurance Company Ltd. near Govt. Polytechnic College, Bal Bhawan Road, near Polytechnic Chowk, Ambala City, 134003 through its Branch Manager. (Insurer of respondent No.1 vide Policy No.040100/46/11/35/00005253 valid from 18.12.2011 to 17.12.2012).

 

….…. Opposite Parties

Before:       Smt. Neena Sandhu, President.

                     Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

Present:      Shri Nirmal Singh, Advocate, counsel for the complainants.

                   Dr. Kanupriya  Grewal, Advocate, counsel for OP No.1.

                   Shri Mohinder Bindal, Advocate, counsel for OP No.2.

 

Order:        Smt. Neena Sandhu, President.

1.                Complainants have filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay compensation of Rs.18,00,000/- with deprecation of money;
2. To pay penalty/fine of Rs.50,000/- for medical negligence and deficiency in service; 
3. To pay litigation expenses of Rs.11,000/-.
4. Grant any other relief which this Ld. Commission may deems fit.

 

2.             Brief facts of this case are that complainant No.1-Smt.Amandeep Kaur was admitted in OP No.1 Hospital on 27.10.2012 vide IPD/OPD No.31643 when she was at her parental home at village and Post office Majouli, District Patiala, for the purpose of delivery of her second child, where a baby girl was born on 27.10.2012 by cesarean operation who was named as Harpreet Kaur. During the above said admission and after the said delivery, tubectomy of complainant No.1 was done/conducted on 27.10.2012 by Dr. Sudhir Kapoor of OP No.1 hospital. As per the demand of OP No.1, the complainants paid the requisite medical charges for the above said operation and tubectomy and other related expenses. After the above said operation/surgery/tubectomy, complainant No.1 started living a routine married life by taking all precautions as advised by OP No.1. However, complainant No.1 conceived inspite of the tubectomy and as such she alongwith her husband visited OP No.1 hospital on 21.3.2018 for medical check-up. OP No.1 checked complainant no.1 and made a remark/entry in her Medical Card as ‘tubectomy failure’ on same date i.e. 21.3.2018 and a baby boy was born to complainant No.1 on 23.11.2018 at Govt. Medical College and Hospital, Sector 32, Chandigarh who was named Jaskirat Singh. There is a remark/entry in a Medical Card of this Hospital bearing C.R.No.180820860 and admission No.201851860 of November 2018 that there is tubal ligation failure in the case. The complainants belong to backward community (Barbar) having no immovable property except a small accommodation in their village and is poor family and that was why, complainant No.1 got tubectomy done to avoid another child due to financial constrains and also to follow the policy of Family Planning of the Government being a good citizen. The complainants are unable to maintain their third baby boy due to pecuniary constrains without any fault on their part and in this way the life and future of the child is dark. Since admittedly there is tubectomy failure as such there is lack of care & diligence on the part of Dr. Sudhir Kapoor/ OP No.1 hospital which amounts to medical negligence. When the complainants were not compensated by OP No.1, they served a legal notice dated 2.4.2019 under registered AD Post upon OP No.1 hospital but to no avail.  OP No.1 is insured with OP No.2 as such accordingly Insurance company is also liable to pay /compensate the complainants. Hence this complaint.   
3.           Upon notice, OP No.1 appeared and filed written version, raising preliminary objections to the effect that the complaint is bad for not arraying United India Insurance Company Limited with which OP No.1, Hospital and Dr. Sudhir Kapoor are fully insured; this complaint is not maintainable etc.  On merits, it has been stated that OP No.1 hospital is fully equipped with latest instruments/machinery and Dr. Sudhir Kapoor is fully competent being a professional man and commands the corpus of knowledge and has vast experience, while working in Civil Hospital with effect from 2002 to 2008 as Surgeon and has conducted many family planning operations. On 27/10/2012 cesarean operation was done on patient and female baby was born. The patient was having history of previous caesarean section. After the delivery of female child the patient and her husband consented for Tubal ligation (Sterilization), no extra charges were taken by OP No.1 hospital for the said operation. Tubectomy Sterilization was done during caesarean section and not after delivery. However charges were taken for cesarean section and not tubectomy and the operation was fully successful without any negligence and deficiencies in service. There were no post operation complications nor any problem to the complainant no.1 with regard to the above said operation. Dr. Sudhir Kapoor of OP No.1 hospital carefully examined complainant no.1 and diagnosed that it was a "tubectomy failure". The medical authoritative books clearly show that there may be cases of tubectomy failure, as the medical science has not reached its perfection and nobody can guarantee to the extent of 100%. Complainant no.1 came to the Hospital with one month amenorrhea (earliest symptom of pregnancy). Even assuming that the patient is poor, she could have availed medical facility at sub centre/PHC/CHC and District Hospital, where she could have easily done medical termination of pregnancy for the reasons that the Central Government as well as State Government has given facilities to every citizen of India and the complainant knowing fully well and intentionally did not follow the policy of family planning.  It is absolutely wrong to say that there was any lack of care and diligence on the part OP No.1 hospital. Failure of Tubectomy operations do happen despite no technical error/best surgery. Various medical books and the latest literature on this branch are also available. To be sure, the medical opinion of Govt. Doctor/Civil Surgeon or Medical Board may be taken in view of the Haryana Government Health Department Notification No- 25/10/2017-6HBI dated 28/02/2018. Rest of the averments of the complainants were denied by the OP No.1 prayed for dismissal of the present complaint.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections to the effect that this Commission has no jurisdiction to entertain and try the present complaint as the dispute involves the determination of complex and number of complicated issues, laws and facts; that only civil court has jurisdiction in the matter; the present complaint is also not maintainable as the same has been filed without any cause of action; this complaint is not supported by any expert report or opinion to prove any negligence being caused in the alleged treatment of the complainant no.1 on the part of the treating doctor; the complainants have not approached this Commission with clean hands and suppressed true and real facts etc. On merits, it has been stated that OP No.2 denies the liability under the alleged insurance policy according to alleged allegations of treatment given to the complainant no.1 by Dr. Kapoor Hospital since the insurance policy in question has been issued to indemnify the act or omission on the part of Dr. Sudhir Kapoor alone and not against any act or omission of any other person of the hospital and treatment carried out by any other doctor or surgeon. However, the liability, if any, the same is subject to terms and conditions of the insurance policy in question. Rest of the averments of the complainant were denied by the OP No.2 and it prayed for dismissal of the present complaint with special costs.
5.           Learned counsel for the complainants tendered affidavit of the complainant No.1 as Annexure C-A alongwith documents as Annexure C-1 to C-18 and closed the evidence on behalf of the complainants. Learned counsel for the OP No.1 tendered affidavit of Dr.Sudhir Kapoor of Kapoor Hospital, 17, Kailash Nagar, Model Town, District Ambala as Annexure OP1/A alongwith documents Annexure OP-1/1 to OP-1/3 and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 tendered affidavit of Shrija Jain, Assistant Manager and Authorized Signatory, United India Insurance Co. Ltd., Divisional Office, Ambala Cantt as Annexure OP-X alongwith document Annexure OP-A and closed the evidence on behalf of OP No.2.
6.           We have heard the learned counsel for the parties and have also carefully gone through the case file
7.           Learned counsel for the complainants submitted that it was on account of medical negligence on the part of OP No.1 that there was failure of tubectomy done on 27.10.2012 as a result of which complainant no.1 conceived and gave birth to a baby boy on 23.11.2018. He further submitted that OP No.1 is thus liable to compensate the complainants for medical negligence and also mental agony and harassment as they being a poor person are unable to bear the financial expenses for upbringing their third baby. 
8.           On the other hand, learned counsel for OP No.1 while reiterating the objections raised in its written version submitted that the mere fact that the tubectomy failed on complainant no.1 cannot be made a sole ground to come to a conclusion that there was medical negligence on the part of Dr. Sudhir Kapoor or OP No.1 hospital. He further submitted that failure of tubectomy operations do happen despite no technical error/best surgery and various medical books and the latest literature on this branch are also available. He further submitted that in the medical report furnished by the committee of medical experts, it is categorically mentioned that there is no medical negligence on the part of Dr.Sudhir Kapoor-OP No.1.
9.           Learned counsel for OP No.2 while reiterating the objections raised in its written version submitted that the insurance policy in question has been issued to indemnify the acts or omission on the part of Dr. Sudhir Kapoor alone and not against any act or omission of any other person of the hospital and treatment carried out by any other doctor or surgeon. He further submitted that the liability, if any, the same is subject to terms and conditions of the insurance policy in question.
10.           Since, the fact that tubectomy was performed by Dr.Sudhir Kapoor of OP No.1 Hospital on 27.10.2012 upon the complainant no.1 and its failure as a result of which, she gave birth to baby boy on 21.03.2018 is not in dispute, as such, the only question which falls for consideration is, as to whether, there was any medical negligence on the part of OP No.1 or the treating doctor i.e. Dr. Sudhir Kapoor in the matter or not. It may be stated here that during pendency of this complaint, on the application having been moved by OP No.1, which was allowed by this Commission vide order dated 07.06.2022 the case was sent to the District Medical Board, Ambala, to constitute a committee of medical experts to apprise this Commission as to whether there is any medical negligence on the part of Dr. Sudhir Kapoor of OP No.1 hospital in the matter or not. The said order dated 07.06.2022 was never challenged by the complainants before the Appellate Consumer Commission and therefore the same attained finality. It is significant to mention here that the District Medical Board, Ambala, constituted committee consisting of Dr. Balwinder Kaur Dr. Pavneesh Aggarwal, Dr.Vijay Bansal, Dr. Rajni, Dr. Ankush Sharma and Dr. Vipin Bhatia, Civil Hospital, Ambala, to apprise as to whether there was any medical negligence on the part of Dr. Sudhir Kapoor of OP No.1 hospital in the matter or not. Consequently, the said medical experts vide their report, Annexure OP/1/3 clearly opined that after going through the entire medical record of the case in question and also seeing failure rate as per literature in TUBAL LIGATION it has been found that there is no medical negligence on the part of Dr. Sudhir Kapoor of Kapoor Hospital in the matter. It is significant to mention here that the complainants have neither challenged this report nor has produced any contrary documents to this report.
11.           Furthermore, the complainants have failed to prove that the surgeon- Dr. Sudhir Kapoor performing the operation/tubectomy was not possessed of the requisite skills or he did not act with reasonable competence. Further there is no allegation that the operating surgeon was not competent to perform the operation. Under similar circumstances, the Hon’ble Supreme Court in State of Haryana and others Vs Raj Rani (2005)7 supreme court cases 22 held that childbirth in spite of a sterilization operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of operation is attributable to his negligence and not otherwise. Similarly, it has been held by the Apex court in State of Punjab Vs Shiv Ram and others (2005) 7 SCC 1 in para-D at page 3 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 in such cases can be sustained only if there was negligence on the part of the surgeon in performing the surgery and not on account of childbirth.
12.           In view of the medical experts report and law laid down by the Hon’ble Apex court in the cases referred to above, we have no hesitation to hold that there is no medical negligence on the part of OP No.1.
13.           In view of the aforesaid discussion, it is held that since the complainants have failed to prove their case, as such, no relief can be granted to them. Resultantly, this complaint stands dismissed with no order as to cost.   Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

Announced:- 23.10.2023

 

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President