BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                         Complaint No. 446  of 2013.

                                                                                         Date of institution: 14.06.2013.

                                                                                         Date of decision: 13.07.2016.

Pinki Devi aged about 30 years wife of Shri Raghbir Singh, resident of village Uncha Chandna, Sub Tehsil Mustafabad, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                    

                                                                                                                        …Complainant.

                                            Versus

1. Medical Officer, Community Health Centre, Mustafabad, District Yamuna Nagar.    
2. State of Haryana through Deputy Commissioner, Yamuna Nagar.
3. Civil Surgeon, Yamuna Nagar.     

                                                                                                                       …Respondents.  

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

Present: Sh. D.S.Khurana, Advocate, counsel for complainant.   

              Respondents already ex-parte.

ORDER

1.                     Complainant filed the present complaint under section 12 of the Consumer Protection Act, 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that she and her husband decided to undergo a tubectomy operation as the Government had been getting it advertised in the village etc. The complainant visited the Civil Hospital, Mustafabad for the said purpose on 27.03.2012 wherein she underwent tubectomy and a certificate to this effect was issued by the Doctor concerned and told that she would not conceive in future and she was perfectly in good health to undergo the said operation. After some days, the complainant started showing signs of pregnancy and ultimately when she underwent the ultrasound on 02.07.2012, the complainant was surprised to know that she was carrying a pregnancy of 16 weeks and 6 days which means that in fact the complainant was pregnant at the time she was asked to undergo the tubectomy operation. As such, there was a grave deficiency in service on the part of OP No.1.  Hence, this complaint.     

3.                     Upon notice, OPs failed to appear despite service, hence they were proceeded ex-parte vide order dated 01.04.2014. 

4.                     To prove the case, complainant tendered into evidence her affidavit as Annexure CW/A and documents such as Ultrasound report as Annexure C-1,  Sterilization certificate as Annexure C-2  and closed her evidence.

5.                     We have heard the learned counsel for the complainant and have gone through the pleadings as well as documents placed on the file.

6.                     The documents placed on record may go to show that complainant Smt. Pinki underwent tubectomy operation on 27.03.2012  which is evident from sterilization certificate (Annexure C-2) .However, there is no document on the file which may go to show that the complainant might have paid any consideration to the OPs Doctor for undergoing the operation in question performed by the concerned doctor. Under the provision of Consumer Protection Act, services without any consideration is no service. So, we are of the considered view that complainant does not fall within the definition of consumer as defined under section 2(1)(d) of the C.P.Act because she hired the services of OPs without any consideration. The complainant could have got the pregnancy terminated even under the law. There is no evidence on record to show that OPs might be negligent in performing the operation or that there might be any deficiency in service on the part of the OPs. In so many medical books, it has been observed that such type of operations are not 100% successful and there are always chances of failure of 1% or 2% cases. The complainant has filed her own affidavit Annexure CW/A by way of evidence which has not been corroborated with any medical evidence. Negligence must be established and not presumed. The complainant has not adduced any material either in the shape of expert opinion or any oral evidence. Negligence must be manifest and apparent and it must be shown that as a result of some overlooking or as a result of some basic precautions not having been taken while performing the operation, the sterilization has taken. As per “Principle of Gynecology” by Sir Norman Jaffcoate 4^th Addition in this treatise while dealing with the realiability of sterilization, it has been observed that “ even when tubal occlusion operations are competently performed and all technical precautions taken, intra- uterine pregnancy occurs subsequently in 0.3% cases. This is because a ovum gains access to supermatozoa through a recanlized inner segment of tube” Similarly, in Operative Gynecology by Te Linday 6^th Addition page No. 426 clause II where it was observed that “ even if both tubes are properly ligated 1 to 20 per 1200 women may conceive in future. Similarly in Shaw’s Text book of Operative Gynecology it was observed that although the procedure may seem to be relatively simple number of failures reported in the literature is remarkably high. The cause of failure of a correctly performed operation is recanlisation of divide fallopian tube. Similarly in “ Text Book of Obstetrics page No. 569 Chapter 35 Population Dynamics and Control of Conception where it was observed that failure rate; the overall failure rate in tubal sterilization is about 0.7%.  

7.                     In the present case, the complainant has miserably failed to prove any medical negligence on the part of the treating doctor. From the averments made in the complaint, which shows that the complainant was operated on 27.03.2012 and she underwent for ultrasound on 02.07.2012 and she was carrying a pregnancy of 16 weeks and 6 days, it means the complainant was pregnant at the time of operation and due to some reasons best known to her, she gave wrong statement to the operating surgeon at the time of declaration.  According to the medical science in such type of cases doctors depends on the history of LMP given by the patient. On the other hand, if the complainant had made her mind for no more child she ought to have come to the operating surgeon soon after she learnt of her pregnancy and if she did not want to deliver the child she could have availed the facility of medical termination of pregnancy under section 3 of the MTP Act 1971 offered by the Government free of costs. The complainant did not consult the operating surgeon any time before delivering the child inspite of directions and guidance given by the doctors goes to show that she wanted the child and now with malafide intention she has filed the present complaint to recover the compensation from the OPs. So, there is no deficiency in service has been proved on the part of the OPs on record.

8.                     Learned counsel for the complainant has placed reliance upon the authority cited as 2001(1) CLT Page 35 State of Haryana and others Versus Smt. Santra, Supreme Court of India. We have carefully gone through this authority and are of the considered view that facts of the present case are not covered by the facts of the case law cited by the complainant’s counsel because in that case medical negligence on the part of the doctor was proved by evidence before the Civil Court on the contrary reference can be taken from the authorities titled as 2001(1) CLT page 499 (Punjab), 1999(2) CLT Page 148 (Punjab), 1998(1) CPC page 469 Gujrat, 1998(1) CPC page 2016 (U.T.). In these authorities it has been held that medical negligence must be proved by expert evidence and further it is settled that pregnancy after sterilization is not unknown and chances of failure of operation cannot be ruled out.

9.                     Resultantly, in view of the above detailed discussion, we are of the considered view that complainant has failed to prove any medical negligence on the part of the OPs. Further as per medical jurisprudence, the failure can occur to some percent. So, there is no deficiency in service on the part of the OPs in performing the family planning operation upon the complainant. Therefore, there is no merit in this complaint and the complaint is hereby dismissed with no order as to costs. However, the complainant is at liberty to approach to the Ops to get the benefits as provided by the Government of India as this fact has been admitted by the OPs in another case No. 442 of 2013 titled as Paramjit Kaur vs. CMO which has also been decided today i.e. on 13.07.2016 (If not done so earlier). Copies of this order be sent to the parties concerned free of costs. File be consigned to the record room after due compliance. 

Announced: 13.07.2016

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

                                                (S.C.SHARMA)

                                           MEMBER