Delhi

New Delhi

CC/679/2012

Vinod Kumar - Complainant(s)

Versus

M/S. Union of India & Anr. - Opp.Party(s)

28 May 2019

ORDER

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTRICT NEW DELHI,  M-BLOCK, 1^ST FLOOR,

VIKAS BHAWAN, I.P. ESTATE. NEW DELHI-1100001.

 

C.C.No.679/2012

 

 

Vinod Kumar,

S/o Sh. Raghunath Singh,

R/o  551,  Block No.46,

Panchkuan Road,

R.K. ASshram Marg,

New Delhi-110001.

Complainant

Vs.

 

1. Union of India,

Ministry of Health and Family Welfare,

Through Secretary,

Nirman Bhawan,

New Delhi.

 

2. The Medical Superintendent,

Ram Manohar Lohia Hospital,

New Delhi-110001.

Opposite Parties

 

NIPUR CHANDNA, MEMBER

 

O R D E R

 

The complainant has filed the present complaint against the OP under section 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that on 21.11.2003,the wife (Smt Usha Devi) of the complainant, had undergone sterilization operation at OP-2’s hospital, which was performed by  Dr. Ajit Sharma.  A sterilization certificate was issued to the patient vide certificate No. 42431 dt. 2.12.2003 and O.T. Registration No.101/Tub.   For few years, everything went right, but after some times, the wife of the complainant missed her menstrual cycle. Thereupon she met doctor, it was found that the complainant was pregnant and was having 3 months' pregnancy. There was negligence on the part of the doctor in performing / conducting the sterilization operation. The complainant sent a legal notice dated 15.09.2011 through her counsel to the opposite parties, but the same went unanswered. Thus, alleging deficiency in service on the part of the doctor, the complainant filed a consumer complaint.

2.     Complaint has been contested by the OPs.  OPs filed its written statement in which OP has pleaded that the there is no deficiency in service on its part.  It has been pleaded that the complainant had undergone sterilization operation on 21.11.2003; that the operation was conducted free of cost / charge and  the complainant was duly informed that sometimes  the sterilization operation gets fail. Prior to operation, the complainant has submitted the consent form that in case of failure of operation, she would not hold the doctor liable

3.     Both the parties have filed their evidenced by way of affidavit.  

4.     We have heard argument advance at the Bar and have perused the record

5. It is well settled that the methods of sterilization / tubectomy are not 100% safe and secure. The Hon'ble Apex Court in the case of State of Punjab Vs. Shiv Ram and others; IV (2005) CPJ 14 (SC), has held that unless it is proved by the cogent evidence on record that the operating doctor was negligent in the performance of the job assigned to him / her, no case of medical negligence can be sustained merely on the ground of failure of sterilization operation. It was further held that merely because woman having undergone sterilization operation became pregnant and delivered child, operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or child. It is worth  mentioning here that no medical expert evidence has been produced on record to show that the sterilization operation of the complainant was not carried out as per the prescribed method. The District Forum has nowhere in its impugned order recorded any finding on the point of medical negligence on the part of the operating doctor and in the absence of such a finding, the District Forum was not at all justified in allowing the consumer complaint.

6.     The Hon'ble National Commission in the case of Kamla Kesharwani Vs. Superintendent, Shyamshah Medical College and Gandhi Memorial Hospital and others; III (2009) CPJ 17 (NC), has held that there is no guarantee that after tubectomy operation, the child birth will not take place. It was also held that the failure of tubectomy operation has been explained in medical texts. It was also held that, "the methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. Inspite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. Section 3(2) Explanation II provides that if the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971".

7.     The Hon’ble National Commission in its decision dated 17.08.2010 rendered in First Appeal No. 291 of 2007; Dr. S.K. Gupta and others Vs. Sh. Rajbir Singh, under the similar circumstances, has held that the case of medical negligence against the operating surgeon is not made out and the complainant was not held entitled to any relief and the order passed by the District Forum, allowing the consumer complaint, was set aside.

8.     We may also advantageously refer to a decision dated 03.12.2008 of the Hon'ble National Commission given in the case of The Chief Executive Officer and others Vs. Sagunabai Navalsing Chavan; 2011 (1) CCC 286 (NS). The facts of the reported case were that the complainant underwent tubectomy operation and even after the tubectomy operation, she became pregnant and delivered a female child. The District Forum awarded compensation of Rs. 500/- per month towards the expenses of the child upto the age of 18 years and directed the opposite party Nos. 1 to 4 to pay jointly and severally sum of Rs. 1,15,000/- as compensation along with cost of Rs. 5,000/- to the complainant. The Hon'ble National Commission held that the tubectomy operation was performed free of cost and the complainant got incentive from the government for undergoing operation. It was also held that once the complainant has conceived, she could have approached same hospital for undergoing MTP, which she has not done. As per the Medical Literature, there are chances of failure of sterilization and recanalisation could take place due to natural causes. The order of the Foras below was set aside and the complaint was dismissed. In the instant case also, the sterilization / tubectomy operation of the complainant was done at the government hospital free of cost.

9.     Since there was no cogent and reliable evidence on record to prove medical negligence on the part of the treating surgeon in conducting the sterilization operation, we are of the considered view that the complainant failed to establish the case of deficiency in services against the OPs.

10.     In view of the above discussion, we find no merits in the present complaint, same is hereby dismissed. File be consigned to Record Room.

 

A copy each of this order each be sent to both parties free of cost by post. This final order be sent to server (www.confonet.nic.in ).

 

Announced in open Forum on  28/05/2019. 

 

 

(ARUN KUMAR ARYA)

          PRESIDENT

(NIPUR CHANDNA)                                                  (H M VYAS)

       MEMBER                                                                MEMBER