F.A.No.141/2007 AGAINST C.D.No.9/2001, DISTRICT FORUM, KARIMNAGAR.

Between:

Dr. B.Pratap Reddy, M.S.Surgeon,

Aged about 47 years, Indian,

Occ:Medical Practitioner,

Vandana Nursing Home,

Jammikunta, Karimnagar.

Presently residing at H.No.1-1-757,

Siddarthanagar,

Kazipet, Warangal District.                                …Appellant/

                                                                                Opp.party no.2

      And

1.Chanda Bhagya , W/o.Chanda Sammaiah,

    Aged about 31 years, Occ:House wife,

    R/o.H.No.2-16-5-3, Huzurabad,

    Karimnagar District .                                       … Respondent/

                                                                                   Complainant

2. Dr.Smt. P.Vishwa Shanthi , MBBS, MS .,

    H.No.17-4, Jammikunta Road,

    Huzurabad, Nursing Home  , Huzurabad,

    Karimnagar.                                                    … Respondent/

                                                                                  Opp.party no.1       

Counsel for the Appellant     : M/s.V.Gowrisankar Rao

Counsel for the Respondents: M/s. Manne Hari Babu-R1

    M/s. A.V.Sesha Sai-R2.

F.A.No.1559/2007 AGAINST C.D.No.9/2001, DISTRICT FORUM, KARIMNAGAR.

Between:

Chanda Bhagya , W/o.Chanda Sammiah,

Aged  32 years, Occ:House wife,

R/o.H.No.2-165-3, Huzurabad,

Karimnagar District .                                          … Appellant/

                                                                                   Complainant

And

1.Dr.Smt. P.Vishwa Shanthi , MBBS, MS .,

 H.No.17-4, Jammikunta Road,

 Huzurabad, Nursing Home,

 Huzurabad of Karimnagar District.                                              

2.Dr. B.Pratap Reddy, M.S.Surgeon,

Vandhana Nursing Home, Jammikunta,

Karimnagar (Impleaded as per the orders

Passed by this Hon’ble Forum vide

I.A.No.49/2002 in C.D.No.9/01 

Dated 11-7-2005)                                             …  Respondents/

                                                                                  Opp.parties                      

Counsel for the Appellant     : M/s.Manne Hari Babu

Counsel for the Respondents: M/s. A.V.Sesha Sai-R1

   M/s. V.Gowrisankar Rao-R2

F.A.No.257/2008 AGAINST C.D.No.9/2001, DISTRICT FORUM, KARIMNAGAR.

Smt.Dr. P.Vishwa Shanthi , MBBS, MS .,

 R/o.H.No.17-4, Jammikunta Road,

 Huzurabad Nursing Home,

 Huzurabad of Karimnagar District                   …. Appellant/

                                                                                  Opp.party no.1

                And

1.Chanda Bhagya , W/o.Chanda Sammiah,

Aged  26 years, Occ:House wife,

R/o.H.No.2-16-5-3, Huzurabad of

Karimnagar District .                                          …Respondent/

                                                                                  Complainant

2. Dr. B.Pratap Reddy, M.S.Surgeon,

Vandhana Nursing Home, Jammikunta,

Karimnagar                                                         …Respondent/

                                                                                 Opp.party  no.2

Counsel for the Appellant     :   M/s. A.V.Sesha Sai

Counsel for the Respondents:  M/s. Manne Hari Babu-R1   

    M/s. V.Gowrisankar Rao-R2

QUORUM:SMT.M.SHREESHA,  HON’BEL MEMBER

                                                AND

SRI SYED ABDULLAH , HON’BLE MEMBER

.

WEDNESDAY, THE TWENTY FOURTH DAY OF  NOVEMBER,

                        TWO THOUSAND TEN

Order Order : (Per   Smt.M.Shreesha, Hon’ble Member)

                                                ***

Aggrieved by the order in C.D.No.9/2007 on the file of District Forum, Karimnagar, opp.party no.2 preferred  F.A.No.141/07, opp.party no.1 preferred  F.A.No.257/2008 and   the complainant preferred F.A.No.1559/2007.  As these appeals arise out of the   same  Consumer Dispute (CD)  they are being disposed of by a common order.    

F.A.No.141/2007:

The brief facts as set out in the complaint are  that the complainant gave birth to a  female child  on 15.7.1997   and after birth of second issue on 23.11.09 she wanted to undergo family planning operation  and opp.party conducted tubectomy on the very same day of her second delivery i.e. on 23.11.99 but she once again became pregnant which was confirmed on 8.4.2000 when she underwent  foetal scanning   on 6.11.2000.  The complainant got issued a legal notice to opp.party no.2 doctor who replied disowning the certificate which bears the signature and contends that he did not conduct any operation on the complainant. The complainant  submits that they would lose all the rights to participate in election and also other rights because of the birth of the third issue.  Hence the complaint seeking direction to the opp.party to pay compensation of Rs.4,90,000/- together with interest  costs.

        Opp.party no.1 remained exparte.

        Opp.party no.2 filed written version denying that he performed the tubectomy operation on the complainant in opp.party no.1 nursing Home. The signature on Sterilization certificate does not belong to opp.party no.2 and it is a  forged signature and he never attended that hospital at any point of time and that there is no negligence on his behalf.  He further contended that as per medical science it is clearly recognised  that  there is an element of risk of 0.3% to 3%  in any tubectomy operation   and also relied on the judgement of Apex court reported AIR 2005 SC PAGE 3280  in which the Apex court held that pregnancy despite sterilization operation is a failure due to natural causes and compensation can be awarded only if the failure of the operation  is attributable to the negligence of the doctor .

The District Forum based on the evidence adduced i.e. Exs.A1 to A17 allowed the complaint directing  the  opp.parties 1 and 2 to pay 2,50,000 with 9% interest from  the date of petition till  realization and costs of Rs.1000/-.

        Aggrieved by the said order opp.party no.2  preferred  F.A.No141/07,  opp.party no.1 preferred  F.A.No.257/2008  and the complainant preferred F.A.No.1559/2007.

        It is the complainant’s case that she gave birth to her firstborne on 15.7.97 and delivered her second borne in opp.party no.1 nursing home on 23.11.99  and on the very same opp.party no.1 conducted tubectomy operation on her   and opp.party no.2 issued sterilization certificate which later counter signed by  opp.party no.1 on  for the purpose of getting government benefits for Rs.500/-. On 6.11.2000 she was undergone foetal scanning in Jaya Hospital Warangal and her pregnancy was confirmed. The complainant got issued legal notice to both opp.parties for which opp.party no.1 did not reply and opp.party no.2 replied denying the issuance of the very said certificate.  Opp.party no.1 remained exparte and it is the case of the appellant/.opp.party no.2 that the operation was never conducted by opp.party no.2  and that opp.party no.2 has nothing to do with the operation and moreover there is an element of risk concerning sterilization operations and it cannot be stated that there is negligence.  We rely on the judgement of the Apex Court (2005) 7 Supreme Court Cases 22 in  STATE OF HARYANA AND OTHERS v. RAJ RANI in which the Apex court held as follows:

        ‘Childbirth in spite of 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 the operation is attributable to his           negligence and not otherwise. Several text books on medical negligence   have recognized the percentage of failure of the sterilization operation  due to natural causes to be varying between 0.3% to 7% depending on the     techniques or method chosen for performing the surgery out of the           several prevalent and acceptable ones in medical science.  The fallopian  tubes which are cut and scaled may reunited and the woman may conceive      though the surgery was performed by a proficient doctor successfully    by adopting a technique recognized by medical sciences.  Thus, the          pregnancy can be for reasons dehors any negligence of the surgeon.  In the absence of proof of negligence, the surgeon cannot be held liable to

pay compensation.  Then the question of the State behind held vicariously

liable also would not arise”.

          We also rely on the judgement reported in AIR 2005 SC 3280 in STATE OF PUNJAB v. SHIVRAM AND OTHERS in which the apex court held that

        ‘Compensation can be awarded only if failure of operation is attributed to the negligence of the doctor.  Failure due to natural causes do not provide ground for claim and if the claimants opt for bearing a child despite failure of operation, they cannot claim compensation for upbringing the child’.

 The Apex Court observed that merely because sterilization operation has failed it cannot be construed as negligence.  The complainant failed to establish that there was any negligence in the line of medical treatment rendered by the appellant/opp.party. The Apex Court held that unless there is negligence in the very conduction of the operation, merely because pregnancy occurred after sterilization operation the doctor cannot  be blamed for negligence. The Apex Court also discussed the elements of risk in this case. In the instant case in the absence of any expert opinion or medical record to establish that there was negligence in the  very conduction of the operation or that the doctor did not follow standards of normal medical parlance, it cannot be  construed  to be medical negligence.  Hence this appeal is allowed and the order of the District Forum is set aside and consequently the  complaint is dismissed.

In the result  this appeal is allowed, order of the District Forum is set aside and consequently  complaint is dismissed. No costs.

F.A.No.257/2008:

                Since the complainant  failed to establish  any negligence on the very conduction of the operation , we  reply on the  Judgement of the Apex Court in AIR 2005 SCC 22 (afore mentioned)  and hold  that there is no negligence  on behalf of this appellant/opp.party no.1  also.  Considering this judgement and also  the afore mentioned reasons in  F.A.No.141/2007, this appeal is allowed and the  order of the District Forum is set aside  and consequently the complaint is dismissed. No costs.   

        F.A.NO.1559/2007 :  The learned counsel for the appellant/complainant contended that the compensation awarded by the District Forum is meagre and prayed for enhancement of the compensation stating that the expenses towards raising a third child is enormous and also for the mental agony suffered by the complainant .  For  the reasons afore mentioned  the appeal preferred  by the appellant/complainant for enhancement of compensation is dismissed.

The appeals preferred by the opp.parties  are allowed  and the order of the District Forum is set aside and consequently the complaint is dismissed.

                                                                                                MEMBER

                                                                                                MEMBER

                                                                                                Dt. 24.11.2010

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