KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 403/2005
JUDGMENT DATED: 28-01-2011
PRESENT:
SHRI. S. CHANDRA MOHAN NAIR : MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
Dr.Soji Kurian,
Gynaecologist, Medical Trust Hospital,
M.G.Road, Kochi-16. : APPELLANT
(By Adv.Sri.M.K.George)
Vs.
1. Mini Raphel,
W/o Raphek, Karukayil House,
Marady.P.O,
Martinpuram.
: RESPONDENTS
2. The Managing Director,
Medical Trust Hospital,
M.G.Road, Kochi-16.
(R2 by Adv.Sri. R.S.Kalkura)
JUDGMENT
SHRI. S.CHANDRAMOHAN NAIR : MEMBER
The order dated:24/10/2004 of CDRF, Ernakulam in OP.504/03 is being assailed in this appeal by the 2nd opposite party contending that the order of the Forum below is per-se illegal, unsustainable and hence liable to be set aside.
2. The case of the complainant in short is that she had 2 children and in order to avoid another pregnancy she had undergone the PPS (Post partum sterilization) after the 2nd delivery and that even after the said operation and inspite of the assurance of the 2nd opposite party that there was no chance of any pregnancy again the complainant got pregnant and when contacted, the 2nd opposite party expressed regrets and assured that she would do another PPS on free of cost after the 3rd delivery on 16/6/2001. However it is the further case of the complainant that even after the 2nd operation she got pregnant again after 21 months and alleging deficiency and negligence, the complaint was filed praying for directions to the opposite parties to pay a sum of Rs.4,50,000/- as compensation with costs.
3. The opposite parties entered appearance and filed version wherein it was contended that the complainant had initially visited the 1st opposite party’s hospital on 13/7/1994 with the history of missed period and the pregnancy test showed positive and that the complainant had the history of tubal pregnancy for which laparotomy was done elsewhere earlier. However it was further contended that the ‘Copper T’ that was inserted on 8/4/1996 was removed on 23/9/1998 and on 11/12/1998 the pregnancy test showed positive and the complainant delivered a normal female child on 19/8/99. It was further submitted that the Post Partum Sterilisation was conducted on 20/8/99 at the request of the complainant and it was on 23/10/2001 that the complainant came back with the history of missed period and the pregnancy test showed positive. After delivery, in order to avoid any further chance of getting pregnant, the 2nd opposite party ligated the fimbrial ends and cut both sides and the complainant was discharged on 19/6/2001 and she had never visited the 1st opposite party thereafter. It was further submitted that the 2nd opposite party had informed the complainant about the chances of failure of sterilisation. Contending that there was no deficiency or negligence, the opposite parties prayed for dismissal of the complaint with cost.
4. The evidence consisted of the proof affidavit filed by the complainant and Exts.A1 to A6 on the side of the complainant. The 2nd opposite party had also filed a proof affidavit and was examined as DW1. The case sheet was marked as Ext.B1.
5. The learned counsel for the appellant/2nd opposite party submitted before us that the Forum below had failed in appreciating the real facts and circumstances of the case in the correct perspective and the order is liable to be set aside. The learned counsel further submitted that the complainant was informed that there were chances of failures in sterilization process and the appellant could not be blamed for the cause of pregnancy after PPS as there were chances of pregnancy even after PPS. It is also the case of the learned counsel that the complainant had history of tubal pregnancy earlier and pregnancy can occur due to fistular formation or recanalisation. It is his very case that the district Forum has miserably failed to find that there was no evidence for the 4th delivery, whereas in the affidavit of the complainant it was stated only about 3 children. It is also his case that after the 2nd PPS operation the complainant had not visited the 1st opposite party hospital or the 2nd opposite party doctor who had conducted the history of pregnancy. Thus, he argued for the position that there was no deficiency of service on the part of the 2nd opposite party/appellant.
6. The learned counsel for the 2nd opposite party/2nd respondent supported the case of the appellant and argued for setting aside the order of the Forum below directing the opposite parties to pay compensation and costs. He has also relied on the decision of the Hon’ble Supreme Court in State of Punjab Vs. Shivram and Others (2005-VII-SCC (1)). Where it is held that failure of sterilization operations cannot be held to be deficiency of service.
7. On hearing the learned counsel for the appellant/2nd opposite party and also on perusing the records we find that it is the admitted fact of all the parties that the complainant had undergone a PPS operation on 20/8/99 after the delivery of the male child by the complainant on 19/8/99. Though the learned counsel for the appellant and the 2nd respondent would argue that the complainant did not visit them after the 2nd sterilization, it is evident and admitted that they had conducted a 2nd sterilization after the delivery of the 3rd child inspite of the 1st PPS on 20/8/1999. It is to be found that the opposite parties have no case in their version that the complainant had fistular formation and it was due to the fistular formation or recanalisation that the complainant got pregnant again. We find that it is to avoid an unwarranted pregnancy that one person goes for PPS and it is unfortunate that she gets pregnant even after the PPS. In the instant case it is the case of the complainant that she got pregnant even after the 2nd PPS and the same is not disproved by the opposite parties. As the Forum below has found that it is clear deficiency of service on the side of the 2nd opposite party that the complainant’s PPS operations were unsuccessful and the 1st opposite party being the employer of the 2nd opposite party, the opposite parties are liable for the deficiency of service of the 2nd opposite party. The Forum below had awarded only Rs.20,000/- as compensation, though the complainant had prayed for a sum of Rs.4,50,000/-. We do not find any material illegality or lapse on the part of the Forum below in arriving at a low compensation of Rs.20,000/- and the said order directing to pay compensation of Rs.20,000/- and cost of Rs.1000/- by the opposite parties is confirmed.
In the result, the appeal is dismissed thereby the order of the Forum below in OP.504/03 is confirmed. In the facts and circumstances of the present appeal the parties are directed to suffer their respective costs.
S. CHANDRA MOHAN NAIR : MEMBER
VL.
M.K. ABDULLA SONA : MEMBER
