SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint petition, U/s. 12 & 13 of the Consumer Protection Act, 1986 (here-in-after called as the “Act”) alleging a deficiency in service against the Ops.
2. The case of the complainant, in short, is that she gave birth to her first male child on 25.5.2004 and then she had opted for tubectomy operation and on payment of Rs.190/-, on her consent, said operation was done with an assurance that she will bear no child in future. But she gave birth to a girl child on 13.10.2018 after 13 years of the operation and for that she incurred expenditure of Rs.40,000/-. It is stated that for her unexpected conception, on 4.9.2018, the complainant medically checked up herself by Dr. M.Behera at Durga Nursing Home, Balasore where Sonologist Dr. B.Khandelwal found a baby in her womb. During the period of her pregnancy, the complainant had been to Sun Hospital, Tulasipur, Cuttack for check up & treatment where she was referred to Sai Hospital, Bhadrak. She was admitted there as an indoor patient on 13.10.2018 and there she gave birth her girl child on the same day and discharged on 19.10.2018. It is specifically stated that the complainant had sustained unnecessary expenditure of Rs.2,70,000/- only for the gross negligence on the part of operating doctor. The complainant is a poor house wife and her husband is a daily labour and it is difficult to grow and look after the child for her education, medicine, clothes, etc. That apart, for the future of the girl child, the Ops are jointly and severally liable for which they are to pay compensation of Rs.2,00,000/-. Had the Ops been carefully conducted the family planning operation, the complainant would have not been seen the above fate in her life. In total, the complainant claimed Rs.4,85,000/- from the Ops.
The cause of action arose for filing of the case on 13.10.2013, when the girl child was delivered by the complainant. Hence, this case.
To substantiate her case, the complainant relied upon the following documents, which are placed in the record -
- Photocopy of pregnant lady & Sishu Surakha Patra.
- Photocopy of letter No.530 dated 5.10.18 along with documents.
- Photocopy of BPL card.
- Photocopy of ultra Sonologist report.
- Photocopy of Sun Hospital report.
- Photocopy of discharge report of Sai Hospital, Bhadrak.
- Photocopy of Maa O Sishu Surakha Card.
- Photocopy of red card.
- Photocopy of Prescription & OPD card.
- Photocopy of Identify card of the beneficiary.
- Photocopy of Birth certificate.
- Photocopy of Medicine Bills and medical papers.
3. In the case at hand, the notices were issued against the Ops. On receipt of notice, the Ops made their appearance and filed written versions.
4. OP No.1, 2 & 4, in their joint written version, denied the version stated in the complaint petition challenging the maintainability of the case and the cause of action. They have stated, inter alia, that the complainant is not a consumer under the Ops, rather she is a beneficiary under the privilege provided by the Government to avail the health policy. As per Govt. norm the complainant was paid Rs.190/- after the operation. The complainant intentionally and deliberately suppressed the true fact of the matter of her pregnancy which she could report after 90 days of her pregnancy. The rate of failure in context of sterilization operation is 0.1 to 0.3% and auto recanalization, presence of third tube and adhesive are major factors which creates a failure and such type of pregnancy after tubectomy by a qualified doctor is not due to negligence and carelessness of the doctor, rather it is an unfortunate incidence which has arisen due to the sole negligence of the complainant which she could inform any health worker within 12 week of her pregnancy. Further, the complainant of her own and without any pressure had given her consent in presence of her husband in writing to get the benefit of the Govt. policy. In the aforesaid facts and circumstances, these Ops prayed to dismiss the case with cost.
5. OP No.3, in his written version, not only challenged the maintainability of the case but also denied the averments made in the complaint petition. Admitting the fact that on the advice of Dr. M. Behera, he conducted ultra-sonography on the complainant to know the details of the pain in abdomen of the complainant and found a baby in her womb and for that the complainant was not induced to do the same. So, this OP has not committed any offence as claimed by the complainant. Therefore, it is prayed to dismiss the case.
6. In view of the above averments of parties, the points for determination in this case are as follows:-
(i) Whether the complainant is a Consumer?
(ii) Whether there is any cause of action to file this case?
(iii) Whether this Consumer case is maintainable as per Law?
(iv) Whether there is any deficiency of service on the part of the O.Ps?
(v) Whether the complainant is entitled to get the relief, as sought for?
F I N D I N G S
7. Before delve into the merits of the case, it is required to be decided how far the complainant is able to prove her case with regard to the cause of action and maintainability of the case and especially whether she is a consumer or not.
8. To substantiate her claim, the complainant placed series of documents. On perusal of Annexure-1, it is found that one Tulasi Patra was pregnant and gave birth to a male child on 25.4.2004. From Annexure-2, the application for family planning operation, it is seen that she had opted for her sterilization operation of her own and after understanding the contents thereon she had put her LTI and thereafter operation was conducted by the concerned doctor in Gopalpur PHC. From Annexure-3, the ration card, the complainant is found to be a BPL category. Annexure-4 speaks itself that USG for foetal assessment was made in respect of one Basanti Patra by Dr.B.K.Khandalwal where a single live foetus was found in her womb. From all the medical papers submitted on behalf of the complainant, it is seen that the name of Basanti Patra was mentioned. In the above premises, the complainant has not filed any document to prove that Tulasi Patra and Basanti Patra are none other than one.
9. The Ops have submitted that the complainant does not fall within the meaning of consumer as per Section 2(d)(i) of the Act. Here in this case, the complainant is found to be a beneficiary under the privilege provided by the Government to avail the health policy. The complainant could not report before the concerned medical after 90 days of her pregnancy nor could inform any health worker within 12 week of her pregnancy. The rate of failure in context of sterilization operation, as stated by the Ops, is 0.1 to 0.3% and auto recanalization, presence of third tube and adhesive are major factors which creates a failure and such type of pregnancy after tubectomy by a qualified doctor is not due to negligence and carelessness of the doctor, rather it is an unfortunate incidence which has arisen due to the sole negligence of the complainant. Further, the complainant of her own and without any pressure had given her consent in presence of her husband in writing to get the benefit of the Govt. policy. That apart, for the purpose of her sterilization operation, the complainant has not purchased the service of the Ops. From the above discussion, this Commission is of the considered opinion that the complainant is a beneficiary under the Government and not a consumer under the Ops. Therefore, it can safely be said that the complainant is not a consumer as required under the Act.
10. Further, the deficiency in service can be alleged with attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. Here in the present case when the complainant is not a consumer, she cannot attribute deficiency in service against the Ops.
11. With regard to compensation, as claimed in her complaint petition, it requires elaborate documentary and oral evidence and the proceedings before this Commission being summary in nature is not the appropriate forum for adjudication of such complaint. It is the complainant, who can seek proper remedy in proper Court of law by filing a suit for the purpose.
12. With the above observations made in the foregoing paragraphs, this Commission is of the considered view that the complainant is not a consumer, she has no cause of action to file the present case and the case is not maintainable. Consequently, she is not entitled to get the reliefs, as sought for, in her complaint petition.
Hence, it is ordered -
O R D E R
The case of the complainant be and the same is dismissed on contest against the O.Ps. In the facts and circumstances, no order as to costs.
Pronounced in the open court of this Commission, this the 2nd day of April, 2024 under my signature & seal of the commission.
