KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISION VAZHUTHACAD, THIRUVANANTHAPURAM COMMON JUDGMENT IN APPEAL NOS. FA.161/08 AND FA.57/09 JUDGMENT DATED: 6.1.2010 PRESENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER FA.161/08 Dr.V.J.Sebastian, : APPELLANT Fathima Matha Mission Hospital, Kalpetta Post. (By Adv.M.C.Suresh) vs. 1. N.P.Elsy W/o Joy, :RESPONDENTS Pulimalayil House, Kabanigiri Post, Padichira Amsom, Pulpally. 2. The Manager, Fathima Matha Mission Hospital, Kalpetta Post. FA.57/09 The Administrator/Manager, : APPELLANT Fathima Matha Mission Hospital, Kalpetta Post. (By Adv.S.Reghukumar) vs. 1. N.P.Elsy W/o Joy, :RESPONDENTS Pulimalayil House, Kabanigiri Post, Padichira Amsom, Pulpally. 2. Dr.V.J.Sebastian, Fathima Matha Mission Hospital, Kalpetta Post. JUDGMENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER These two appeals are preferred from the order dated 14th March,2008 passed by CDRF, Wayanad, Kalpetta in CC.No.87/06. The complaint in CC.87/06 was filed by the 1st respondent in these appeals namely N.P.Elsy, wife of Joy alleging deficiency in service on the part of the appellants(opposite parties) in conducting the sterilization operation on the complainant. The complainant alleged lack of expertise and lack of reasonable care and caution on the part of the 2nd opposite party, Dr.V.J.Sebastian (appellant in appeal 161/08) who conducted lower segment cesarean section and tubal ligation(LSCS+TL) at the 1st opposite party hospital(appellant in appeal 57/09). It was also alleged that the sterlisation operation by tubal ligation was done at the instance of the 2nd opposite party and that the 2nd opposite party made the complainant to believe that LSCS+TL is 100% safe and most scientifically advanced. But the complainant became pregnant again and thereby alleged negligence on the opposite parties in conducting the sterilization operation on the complainant. 2. The opposite parties entered appearance and filed joint written version denying and disputing the alleged medical negligence on their part. They contended that there was no deficiency of service on their part and that the sterilization operation failed not due to the negligence on their part and the said failure was not due to lack of skill of the 2nd opposite party. It is contended that the operation was conducted at the request of the complainant and her husband and they gave written consent for conducting the aforesaid operation; the opposite parties never assured any guarantee for the success of the sterilisaiton operation. They denied the case of the complainant that the complainant was made to believe that the LSCS+TL operation is 100% safe and most scientifically advanced; that the complainant is literate and it was on the specific request of her husband and herself the operation was undertaken. The opposite parties had also questioned maintainability of the complaint filed under the provisions of the Consumer Protection Act, 1986. The opposite parties quoted various authorities and thereby submitted that there was the probability and possibility for failure of LSCS+TL operation and that the complainant and her husband were aware of the fact regarding the possibility of failure in the sterilization operation. Thus, the opposite parties prayed for dismissal of the complaint. 3.The complaint therein was filed before the CDRF, Wayanad, Kalpetta and the same was numbered as OP.No.117/93. During the pendency of the said complaint the opposite parties filed Writ OP.9546/93 before the Hon’ble High Court of Kerala challenging the maintainability of the complaint. After the disposal of the said OP.9546/93 the said complaint in OP.117/93 was renumbered as CC.87/06. Thus, in effect the complaint was filed before the CDRF, Wayanad, Kalpetta in the year 1993 ie on 29.4.93. 4. The proceedings of the Forum below in this case would show that subsequently the opposite parties submitted before the Forum below that the complaint filed under the provisions of Consumer Protection Act. 1986 is maintainable before the CDRF, Wayanad, Kalpetta and so the complaint was posted for evidence of the parties. 5. Before the Forum below, the complainant was examined as PW1. Ext.A1 to A5 documents were marked on the side of the complainant. From the side of the opposite parties OPW1, Dr.Alice Jose was examined. No documentary evidence was adduced from the side of the opposite parties. 6. The 1st opposite party, the Manager, Fathima Hospital, Kalpetta was directed to produce the case sheet with respect to the treatment of the complainant at that hospital. The Director, Fathima Mission Hospital, Kalpetta(1st opposite party) filed an affidavit stating that the case sheet of the complainant who was admitted in the hospital as IP No.35358 in surgical ward on 25.1.89 is not available as the same was destroyed. It is further averred that the usual practice is to destroy the records after 10 years. 7. On an appreciation of the facts, circumstance and evidence of the case, the Forum below passed the impugned order dated 14.3.08 and thereby the opposite parties are directed to pay Rs.25000/- as compensation with cost of Rs.2000/-. Hence the present appeals by the opposite parties in CC.87/06 on the file of CDRF, Wayanad, Kalpetta. 8. We heard the learned counsel for the appellants in these appeals and the 1st respondent/complainant. The learned counsel for the appellants submitted their respective arguments on the strength of the grounds urged in the memorandum of the present appeals. They also relied on the decision rendered by the Hon’ble Supreme Court of India in State of Punjab Vs.
Shiv Ram reported in 2005(4)KLT 669 (SC). They argued for the position that sterilization operation is not 100% defect free and it is medically accepted and approved that sterilization operation may result in failure. It is submitted that mere fact that there was failure of sterilization operation would not prove negligence of the doctor who conducted the procedure. It is further submitted that the cause of failure of sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by X-ray examination, or by pathological examination of the materials removed at a subsequent operation of re-sterilization. It is categorically argued that the complainant miserably failed in adducing any evidence in support of her case that the failure of the sterilization operation was due to the lack of expertise or lack of reasonable care and caution on the part of the doctor who conducted the sterilization procedure. They also much relied on the testimony of OPW1, Dr.Alic Jose and submitted that there was no negligence on the part of the 2nd opposite party Dr.V.J.Sebastian in doing the sterilization operation on the complainant. Thus, the appellants prayed for setting aside the impugned order passed by the Form below in CC.No.87/06. On the other hand the learned counsel for the 1st respondent/complainant supported the impugned order passed by the Forum below. He pointed out the failure on the part of the opposite parties in producing the case sheet with respect to the treatment of the complainant at the 1st opposite party, Fathima Mission hospital, Kalpetta. He vehemently argued for the position that the opposite parties deliberately suppressed the case sheet so as to suppress the fact regarding the medical negligence on the part of the opposite parties. It is also submitted that there is nothing on record to show that the complainant or her husband was informed about the possibility of failure of the sterilization operation. It is further submitted that the complainant and her husband were illiterate and they were not aware of the alleged possibility of failure of the sterelisation operation. It is also submitted that the complainant was made to believe that the sterilization operation is 100% safe. He also relied on the oral testimony of the complainant as PW1. Thus, the 1stt respondent(complainant) prayed for dismissal of the these appeals. 9. The points that arise for consideration are:- 1) Whether there was any negligence on the part of the 2nd opposite party, Dr.V.J.Sebastian(appellant in FA.161/08) in conducting the sterilization operation on the complainant N.P.Elsy(1st respondent in these appeals)? 2) Whether there was any sort of deficiency in service on the part of the opposite parties (appellants in FA.57/09 and FA.161/08) in CC No.87/06 on the file of CDRF, Wayanad, Kalpetta? 3) Whether the case of the 1st opposite party Fathima Mission Hospital, Kalpetta that the case sheet with respect to the treatment of the complainant N.P.Elsy has been destroyed and the same is not available for its production before the CDRF, Wayanad, Kalpetta can be believed? 4) Is there any sustainable ground to interfere with the impugned order dated 14.3.08 passed by CDRF, Wayanad, Kalpetta in CC.87/06? 10. Points 1 to 4:-For the sake of convenience, the parties to these appeals will be referred to according to their rank and status before the Forum below in CC.No.87/06. 11. There is no dispute that the complainant N.P.Elsy, wife of Joy had undergone LSCS+TL operation at the 1st opposite party hospital and the said procedure was conducted by 2nd opposite party Dr.V.J.Sebastian. No doubt that Dr.V.J.Sebastian was attached to the 1st opposite party hospital as a Gynacologist. The case of the complainant that she had her previous cesarean section at the 1st opposite party hospital is not disputed by the opposite parties. The case of the opposite parties in their written version is that 2nd opposite party is a qualified doctor and there was no negligence on his part in doing the LSCS+TL operation on the complainant. From the side of the complainant Photostat copy of the reference card issued from Fathima Mission hospital, Kalpetta, Wayanad has been produced and marked as Ext.A1. Ext.A1 reference card was issued to the patient by name Elsy, Pulimalayil, Kabanigiri aged 24 years, IP.No.35358. Ext.A1, reference card was issued to the complainant Elsy for her treatment at the 1st opposite party hospital. It would show that she was admitted in that hospital on 14.1.89 and discharged from the hospital on 25.1.89. Ext.A1 reference card would also show that she was admitted for LSCS+TL. The complainant Elsy was examined before the Forum below as PW1. She has also filed proof affidavit in lieu of examination in chief. The evidence adduced on the side of the complainant would establish the fact that she had undergone LSCS+TL at the 1st opposite party hospital and she was discharged from the hospital on 25.1.89/ 12. Ext.A2 is letter issued by the 2nd opposite party Dr.V.J.,Sebastian to Dr.Ibrahim dated 5.12.9. In A2 letter it is stated that the lady referred to in the said letter became pregnant after LSCS+TL(pomeroy’s) technique done on January 18th in the year 1989. A2 letter would show that patient was referred to Dr.Ibrahim for her asthmatic problem. When PW1 was cross examined it was suggested that Elsy mentioned in A2 reference letter is not that of the complainant Elsy and that the said letter was issued to somebody else. It is to be noted that in A2 reference letter the name of the patient is
not mentioned as Elsy. But the patient is referred by the OP No.21157 and the patient is referred to in the body of the reference letter as ‘lady’. It is to be noted that in A1 reference card the OP No. is noted as 21157. This would give an indication that A2 reference letter was issued by the 2nd opposite party to the complainant, N.P.Elsy. It is also to be noted that the signature of the 2nd opposite party Dr.V.J.Sebastian affixed on A2 reference letter has not been disputed by the opposite parties. Thus, A2 letter would make it clear that the said letter was issued to the complainant herein. It would also show that the complainant became pregnant even after LSCS+TL operation. It would further show that the 2nd opposite party adopted pomeroy’s method in doing the sterilization operation. Another important aspect to be noted at this juncture is the failure on the part of the 2nd opposite party to depose before the Forum below. He has not even filed an affidavit in support of his case. It is also to be noted that 1st opposite party also failed to get into the witness box or to file an affidavit in support of the contentions raised in the joint written version. 13. The definite case of the complainant is that she became pregnant even after doing the sterilization operation by the 2nd opposite party at the 1st opposite party hospital in January, 1989. The complainant as PW1 has deposed that she had sterilization operation on 20.5.92 at the Districtt Hospital, Mananthavady and that operation was conducted by Dr.K.K.Kunjabdulla, Gynecologist attached District Head Quarters Hospital, Mananthavady. Ext.A3 is the certificate issued by the medical officer, Assistant Surgeon, District Hospital, Mananthavady stating that Smt.Elsy has undergone sterilization on 20.5.92 from the district hospital, Mananthavady. PW1 has also deposed that the said delivery was also by caesarean and the child is no more. 14. Ext.A3 certificate would support the case of the complainant that she became pregnant even after doing the sterilization operation by the 2nd opposite party at the 1st opposite party hospital in January 1989. The evidence of PW1 and A3 certificate can be accepted. There is no contra evidence forthcoming from the side of the opposite parties to disprove testimony of PW1 and A3 certificate. Ext.A4 is medical prescription issued by Dr.K.K.Kunjabdulla, district hospital, Mananthavady. Ext.A5 series are the medical bills obtained by the complainant for purchase of medicines for her treatment in the year 1992. Thus the evidence on record would establish the fact that sterilization operation conducted by the 2nd opposite party on the complainant at the 1st opposite party hospital was a failure and that the complainant became pregnant, even after doing the sterilization operation by the 2nd opposite party doctor in January 1989 at the 1st opposite party hospital. 15. The case of the complainant is that the failure of the sterilization operation was due to the lack of expertise on the part of the 2nd opposite party and also due to lack of reasonable care and caution in doing the sterilization operation. The complainant asPW1 has also deposed about the negligence on the part of the 2nd opposite party in doing the sterilization operation. The complainant in her proof affidavit categorically averred that she was given assurance by the opposite parties stating that the sterilization operation will be 100% success and only because of that assurance given by the opposite parties she consented for the sterilization operation. It is categorically averred in the proof affidavit that she was made to believe that LSCS+TL operation is 100% success and that the sterilization operation was done as instructed by the 2nd opposite party. On the otherhand, the opposite parties 1 and 2 in their joint written version categorically contended that the sterilization operation was done at the request of the complainant and her husband and they gave written consent for the LSCS+TL operation. The opposite parties have also denied the case of the complainant that she was advised that the LSCS+TL is 100% safe and most scientifically advanced etc. The opposite parties have also denied the case of the complainant that she is illiterate and she was made to believe that the said sterilization operation is 100% success. But the opposite parties have not adduced any evidence to substantiate their contention that the complainant and her husband requested for sterilization operation and that the possibility for failure of sterilization operation was disclosed to the complainant and her husband. 16. It is averred by the complainant that if she had been advised about the possibility or probability for failure of the sterilization operation, she would not have consented for the sterilization operation. It is further averred that if she was told about the possibility for failure of sterilization operation, she would have taken some other precautions to avoid pregnancy. She categorically averred that the opposite party doctor gave the assurance with respect to the 100% success of the sterilization operation. The aforesaid case of the complainant has not been contraverted by the opposite parties. It is the settled position that the patient must be informed about the pros and cons of the surgery. In this case there is nothing on record to show that the complainant was informed about the possibility or probability for a failure of the sterilization operation. If such an advise or information was passed to the complainant or her husband, then that fact would have been found a place in the case sheet or in the consent letter. But no such evidence is forthcoming from the side of the opposite parties. Thus, the evidence of the complainant that she was given the assurance for 100% success in the sterilization operation is to be believed and accepted. It is to be noted that the opposite parties have no case in their written version that the complainant was informed about the possibility or probability for failure in the sterilization operation. The opposite parties miserably failed in performing their duty of disclosing the fact regarding the chance or possibility of failure in the sterilization operation. The aforesaid failure on the part of the opposite parties would amount to deficiency in service. 17. The complainant moved the Forum below to get the case sheet with respect to her treatment at the 1st opposite party hospital produced. Thereby the forum below directed the 1st opposite party, hospital to produce the case sheet with respect to the treatment of the complainant at the 1st opposite party hospital. Admittedly the 1st opposite party failed in producing the case sheet with respect to the treatment of the complainant by the 2nd opposite party doctor at the 1st opposite party hospital. It is to be noted that director of the 1st opposite party, hospital filed an affidavit dated 6th September, 07. In the said affidavit sworn to by the Director of the 1st opposite party, hospital, it is categorically stated that the complainant herein was admitted in the 1st opposite party, hospital as IP No.35358 in surgical ward on 25.1.89. It is further stated that it is the usual practice of he 1st opposite party to destroy the records after 10 years. Hence the 1st opposite party is not in a position to produce the case sheet of N.P.Elsy. It is to be noted that the complaint in this case was filed before the Forum below in the year 1993. The complaint therein was received by the CDRF, Wayanad, Kalpetta on 29.4.93. It would also show that notice was issued to the opposite parties in April, 1993 itself. The aforesaid complaint was originally numbered as OP.117/93. The joint written version filed by the opposite parties would reveal that the said written version was filed on 20th July, 1993 and the same was presented before the Forum below on 21.7.93. Admittedly the complainant was admitted in the 1st opposite party, hospital in January, 1989. Thus the complaint therein was filed within 3 years and 2 months of the complainant’s admission at 1st opposite party, hospital. The opposite parties entered appearance and filed joint written version within three years and six months of the complainant’s admission in the 1st opposite party hospital. Thereby the 1st opposite party was well aware of the institution of the complaint alleging medical negligence and deficiency in service on the part of the opposite parties namely 1st opposite party hospital and the 2nd opposite party doctor. In such a situation it was incumbent upon the 1st opposite party, hospital to keep the case sheet and other related documents with respect to the treatment and operation done on the complainant at the 1st opposite party, hospital. In the affidavit dated 6.9.2007 the director of the 1st opposite party admitted the fact that they used to destroy the records after 10 years. The aforesaid averment in the affidavit would make it abundantly clear that the case sheet with respect to the treatment of the complainant was in the custody of the 1st opposite party at the time when the opposite parties entered appearance in OP.117/93. In such a situation, no man of ordinary prudence will destroy the case sheet with respect to the treatment of the complainant because of the fact that a litigation is pending with respect to the treatment of the complainant. This circumstance would make it improbable to believe the case of the 1st opposite party that the case sheet with respect to the treatment of the complainant has been destroyed. The Forum below is perfectly justified in arriving at the conclusion that the opposite parties willfully suppressed the case sheet. The Forum below can also be justified in drawing inference that the opposite parties are suppressing the case sheet because of the fact that its production will support the case of the complainant that the failure of the sterilization operation occurred due to the negligence and lack of expertise on the part of the 2nd opposite party in doing the sterilization operation on the complainant. The reason stated by the 1st opposite party for its failure to produce the case sheet with respect to the treatment of the complainant cannot be believed or accepted. The aforesaid failure to produce the case sheet with respect to the treatment of the complainant at the 1st opposite party hospital would amount to deficiency in service. 18. The Hon’ble Supreme Court in State of Punjab vs. Shivram and others 2005(4)KLT 669(SC) had occasion to high light various authorities(text books) on this subject regarding reliability of sterilization operations. On the basis of those authorities, it has been held that the cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of childbirth. It is further held that failure due to natural causes would not provide any ground for claim. It is also held that compensation for maintenance and upbringing of a unwanted child cannot be claimed because of the fact that it is for the woman who has conceived the child to go or not to go for medical termination of pregnancy; that if the couple opts for bearing the child, it ceases to be an unwanted child. It is categorically held by the Hon’ble Supreme Court 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. Thus, the Hon’ble Supreme Court was of the opinion that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam’s test. So also, surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. It is also held that ordinarily a surgeon does not offer such guarantee. 19. In the aforesaid decision(supra) at para 24 it is found that the cause of failure of sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by X-ray examination, or by pathological examination of the materials removed at the subsequent operation of re-sterilization. The discrepancy between operation notes and the result of X-ray films in respect of the number of rings or clips, nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the Gynecologist in case of failure of sterilization operation. The aforesaid observations would loom large the importance of the case sheet with respect to the treatment and sterilization operation done on the complainant at the 1st opposite party hospital. It is true that the complainant failed to take necessary steps to get the case sheet produced from the District Hospital, Mananthavady where she had her subsequent sterilization operation. No evidence is forthcoming from the side of the complainant to show the condition of her fallowpean tubes(uterine tubes) at the time of the 2nd sterilization operation. The gynecologist who conducted the 2nd sterilization operation would be in a position to say about the condition of the uterine tubes. He may be in a position to say as to what was wrong with the 1st sterilization operation. Unfortunately, no such evidence is forthcoming from the side of the complainant. OPW1. Dr.Alice Jose has deposed about the possibilities for failure of sterilization operation. According to OPW1 no method is known to her for avoiding such failure. She deposed that in LSCS+TL method both tubes are ligated; that pregnancy can occur if the doctor had confused the fallowpean tubes with another organ. It is also deposed pregnancy also happens if the clips open due to negligence. She has also deposed that pregnancy can happen if the sterilization operation is done negligently. It is categorically deposed by OPW1 that she cannot say as to what is went wrong in the said sterilization operation without referring the clinical notes. The evidence of OPW1 would show that in sterilization operation both the fallowpean tubes are to be ligated and if one of the tubes is not dealt with there is possibility for failure of the sterilization operation. She has also deposed that whether both the fallowpean tubes are dealt with can be ascertained only by referring to the clinical notes. Admittedly the clinical notes with respect to the said sterilization operation done on the complainant by the 2nd opposite party Dr.V.J.Sebastian is not available for scrutiny. 1st opposite party failed to produce the same. The aforesaid act of destruction of the case sheet would amount to negligence and the said negligence will constitute deficiency in service. There can be no doubt that destructing case sheet during the pendency of a complaint before the CDRF, Wayanad, Kalpetta would amount to deficiency in service. It is to be noted that the said complaint before the CDRF, Wayanad, Kalpetta was filed in the year 1993 and the 1st opposite party hospital and the 2nd opposite party doctor were served with notice in the matter and they filed their joint written version in the said complaint on 21.9.93 itself. In such a situation, it was rather impossible for the 1st opposite party hospital to destroy the case sheet with respect to the sterilization operation. It is to be borne in mind that the subject matter of the complaint is the negligence in performing the sterilization operation at the 1st opposite party hospital by the 2nd opposite party doctor. In such a situation, it is too hard to swallow the statement of the 1st opposite party that the said case sheet was destroyed after 10 years. At any rate, the failure on the part of the 1st opposite party to produce the case sheet would tantamount to deficiency in service. The opposite parties much relied on the evidence of OPW1 to support their case that there will be failure of sterilization operation even if there was no negligence or lapse on the part of the gynaecologist/ surgeon who performed the sterilization operation. The opposite parties have also relied on the testimony of OPW1 to substantiate their case that the 2nd opposite party doctor is a well experienced Gynecologist capable of doing sterilization operation. The evidence of OPW1 would make it clear that this witness is very much interested in the 2nd opposite party Dr.Sebastian. This witness has admitted that she is a family friend of Dr.V.J.Sebastian and that she is having close acquaintance with the 2nd opposite party Dr.V.J.Sebastian and Mrs.V.J.Sebastian. She has been working with Mrs.V.J.Sebastian at K.J.Medical Trust hospital. This witness as a Gynecologist had also worked with the 2nd opposite party Dr.V.J.Sebastian. Thus, OPW1 could not be considered as an independent and impartial witness. It is also to be noted that OPW1 had no occasion to take part in the sterilization operation which was conducted on the complainant. The opposite parties could have cited the gynecologist who conducted the 2nd sterilization operation on the complainant. Evidence of the Gynecologist who conducted the 2nd sterilization operation on the complainant can be preferred to that of OPW1. The complainant in her written complaint at para 3 has categorically alleged that the 2nd opposite party is incompetent to conduct such type of operation and had not applied care and skill in performing the LSCS+TL operation. It is also pleaded that the complainant being not an educated lady the 2nd opposite party ought to have explained the pros and cons of LSCS+TL operation and the failure to do that amounts to grave negligence on the part of the 2nd opposite party. The complainant has filed proof affidavit in support of her pleadings and allegations in the complaint. She made herself available for cross examination by the opposite parties. But she was not cross examined about the allegation that she was not told about the pros and cons of the sterilization operation. She categorically stated in her proof affidavit about the assurance given by the 2nd opposite party about the cent percent success of the sterilization operation. But that averment in her affidavit has not been challenged in the cross examination. Thus the evidence of the complainant stands unchallenged. The opposite parties 1 and 2 have not adduced any contra evidence to contradict the pleadings and evidence tendered by the complainant. It is to be noted that the opposite parties have not filed any proof affidavit or counter affidavit challenging the averments in the affidavit filed by the complainant. In effect the evidence of the complainant that she was given assurance by the 2nd opposite party about the cent percent success of the sterilization operation; that she was not told about the chance or the possibility of failure of the sterilization operation; that she would not have consented for sterilization operation if there was any chance for failure of the sterilization operation; that she would have opted for some other method to avoid pregnancy stands unchallenged. The facts, circumstance and the available evidence on record would make it abundantly clear that there was failure of sterilization operation performed by the 2nd opposite party on the complainant at the 1st opposite party hospital in My, 1989. IN the absence of the case sheet pertaining to the sterilization operation conducted in January, 1989 it is impossible to ascertain as to whether there occurred any negligence on the part of the 2nd opposite party Dr.V.J.Sebastian in performing sterilization operation on the complainant. There is no acceptable evidence available on record to support the case of the opposite parties that the 2nd opposite party Dr.V.J.Sebastian was having experience in performing sterilization operation. The case of the complainant that 2nd opposite party Dr.V.J.Sebastian was not competent to performing the sterilization operation and due to his lack of experience there occurred negligence on his part in performing sterilization operation has not been controverted. Had there been any such sterilization operations performed by the 2nd opposite party at the 1st opposite party hospital, then there would be documents with 1st opposite party hospital to show the number of sterilization operations performed at the 1st opposite party hospital. But no such positive evidence is forthcoming from the side of the opposite parties. The available evidence would show that the sterilization operation performed on the complainant was a failure. Then it was left to the opposite parties to show that the 2nd opposite party was experienced in performing sterilization operation and such sterilization operations had been performed by the 2nd opposite party at the 1st opposite party hospital. But the opposite parties failed in establishing those aspects. No reasonable explanation is forthcoming from the side of the opposite parties for not adducing such evidence from their side. It is to be noted that not even proof affidavit has been filed from the side of the opposite parties. They also failed to produce case sheets pertaining to the sterilization operation performed on complainant. Thus, deficiency in service on the part of the opposite parties can be upheld. The medical authorities on this field would make it abundantly clear that sterilization operations and the methods or techniques adopted for sterilization operations are not cent percent failure free. It would also show that the failure rate may vary from method to method. The opposite parties in their written version have quoted a number of authorities and the text books on the subject. Those authorities and text books would show that there is a chance or possibility for failure of sterilization operation. It is stated in in para 13(4) of the written version “ D.C.Dutta 1987, 3rd edition – the overall failure rate of tubal sterilization is 0.7%. Pomeroy’s method having lowest(0.1 to 0.3) in contrast failure rate is increased when it is done during hysterotomy or being C.S”. The aforesaid statement would make it clear that the failure rate is increased when the sterilization operation is done during hysterotomy or LSCS. Admittedly in the present case sterilization operation on the complainant was done during LSCS. The next question that would emerge is why the sterilization operation was performed on the complainant by the 2nd opposite party doctor during the LSCS? But no such question could be put to the 2nd opposite party because of the fact that he did not opt to depose before the Forum below. There is no case for the opposite parties that the complainant insisted for sterilization operation to be performed during LSCS. In the absence of any such positive evidence it can be conducted that the sterilization operation was performed on the complainant at the discretion of the 2nd opposite party. If that be so, it can be held that the 2nd opposite party took the risk by fully knowing that the failure rate will be increased when the sterilization operation is done during LSCS. This action on the part of the 2nd opposite party would amount to medical negligence. It would inturn show the deficiency in service on the part of the 2nd opposite party. In such a situation 1st opposite party is vicariously liable for the negligence and deficiency in service of the 2nd opposite party. The opposite parties(appellants) much relied on the principle enunciated by the Hon’ble Supreme Court in State of Punjab vs. Shivram and others(supra) but the facts and circumstance of the aforesaid reported case can not be made applicable to the present case on hand. It has been held by the Hon’ble Supreme court in Bihar School of Examinations Board Vs. Suresh Prasad Sinha reported in 2009(4) CPR 27 (SC) at paras 14 to 18 that the decisions cannot be cited and followed without reading the facts of the case and the reasoning contained therein. The Hon’ble court had also occasion to high light the earlier decisions of the Hon’ble Court and made it clear that courts should not place reliance on decisions without discussing as to how factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. It is to be noted that the facts of the case in State of Punjab vs. Shivram was based on failure of sterilization operation conducted on the 2nd plaintiff in the said case which was filed before the civil court claiming damages to the tune of Rs.3,00,000/- on account of the fact that female child was born to the 2nd plaintiff even after undergoing sterilization operation at the hands of the 2nd defendant who was working under the 1st defendant State of Punjab. In the said case the 1st plaintiff, husband of the 2nd plaintiff was examined and the 2nd defendant doctor had given evidence to the effect that there was no negligence on her part. But the medical authorities have approved the failure of sterilization operation to the extent of 0.3% to 3%. The defendants also cited extracts from the text books and marked as Exts. D2 to D6 therein. The trial court as well as the High Court upheld the case of the plaintiff therein to some extent and thereby decreed the suit for Rs.50000/- with interest and costs. In such a situation the Hon’ble Supreme Court upheld the case of the defendants (State of Punjab) that there was no negligence in performing the sterilization operation and that the medical authorities have approved failure of sterilization operations. It is to be noted that in that case there was no failure on the part of the doctor or the hospital in producing case sheet of the patient. On the other hand, there was evidence adduced from the side of the defendants to show that there was no negligence on the part of the doctor who performed the sterilization operation. Moreover, there was no case that the patient was not informed about the chance of failure of sterilization operation or that the doctor was not competent or experienced in performing the sterilization operation. Thus, in all respects the facts of the case in State of Punjab Vs. Shivram are entirely different from the facts of the present case on hand. On account of the deficiency in service established on the part of the opposite parties, the Forum below can be justified in awarding compensation of Rs.25000/- to the complainant in CC.87/2006. Considering the facts and circumstances of the case, we do not find any sustainable reason or ground to interfere with the order passed by the Forum below directing the opposite parties to pay Rs.25000/- as compensation to the complainant with cost of Rs.2000/-. These points are answered accordingly. In the result the above appeals are dismissed. The impugned order dated 14.3.08 passed by CDRF, Wayanad, Kalpetta in CC.87/06 is confirmed. As far as these appeals are concerned, the parties are directed to suffer their respective costs. SRI.M.V.VISWANATHAN : JUDICIAL MEMBER ps | 
