CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 458/2007
Smt. Mamta,
W/o Sh. Pradeep,
R/o Vill. & P.O. Chhatera Bhadurpur,
Distt. Sonepat, Haryana. ……Complainant
Versus
Parivar Seva Clinic,
(Through its Managing Director),
A project of Parivar Seva Sanstha,
At O-22, Ground Floor, Near 17th Square,
Lajpat Nagar-II, New Delhi – 110024. ……Opposite Party
Date of Institution : 03.04.2007 Date of Order : 15.10.15
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
The facts which are not in dispute are that the complainant had gone to Parivar Seva Clinic for sterilization on 11.7.2006 and paid registration fee of Rs. 100/-. She was asked to come for sterilization on 18.7.2006 on which date she paid Rs. 450/-. After the sterilization she was issued a certificate of sterilization on 18.7.2006. However, she gave birth to a male baby on 16.3.2007 who had full growth weighing 3 Kg 300 gms.
Now, according to the complainant, pregnancy occurred due to the gross negligence on the part of the OP. She came to know about the pregnancy on 7.12.06 during her medical check up in Dr. Sunder Lal Memorial Hospital, New Delhi when she was subjected to ultrasound in which the average gestational age was declared as 24 W 2D + - 2W. According to her, she had already two children and, hence, did not want to have third child and, thus, an unwanted pregnancy occurred due to the gross negligency on the part of the OP. According to her, she would incur unwarranted and unplanned expenses amounting to about Rs. 12 Lacs for the upkeep of the third child upto the age of majority. According to her, she and her husband were the aspirants for contesting the elections and this third unplanned child had made the complainant and her husband ineligible for contesting the elections for gram sabha, Block Samiti and Jila Parisad and thus they lost their social status for which OP has to pay Rs. 3 Lacs as compensation. It is submitted that she sent a legal notice on 18.1.2007 to the OP but to no avail and she spent a sum of Rs. 22,600/- as consultancy cum litigation charges. Hence, she has filed the present complaint for directing the OP to pay Rs. 15,22,600/- to her.
On the other hand, the case of the OP is that the present case is not a case of sterilization failure but a case of the complainant being pregnant at the time the sterilization was performed. It is stated that on 11.7.2006, the complainant had told the doctor that her last menstrual date was 6.4.2006; that the doctor examined and advised for pregnancy test on the same day and the pregnancy test report turned out to be negative. But, however, still as a matter of precaution the Doctor had prescribed tablet Maprate 10 mg. for five days to the complainant and she was advised to come after five days. It is stated that on 18.7.2006 the complainant again came to OP clinic and informed the treating doctor that she had her periods on 15.7.06 and, hence, the treating doctor agreed for sterilization procedure. It is stated that after the sterilization done on 18.7.2006 she was advised to come up after 14 days for follow up but she did not turn up. It is stated that the Doctor or the Hospital cannot be said to be guilty of negligence merely because the medical procedure fails and a risk inherent in medical procedure manifests itself; that the medicine being an inexact science mere failure of the medical procedure cannot be indicative of negligence on the part of a doctor; that the procedure for sterilization and termination of pregnancy carries an inherent risk of failure. Negligence on the part of the OP has been denied. It is prayed that the complaint be dismissed.
The above stated averments made in the reply of the OP have been denied by the complainant.
Complainant has filed her own affidavit in evidence. On the other hand, affidavit of Doctor B Kalpagam of OP clinic has been filed in evidence.
Record maintained by the OP regarding procedure performed upon the complainant has been marked as Ex. R1.
We have heard the counsel for the complainant and have also gone through the file very carefully.
Sterilization Intake Sheet signed by the complainant and one witness on her behalf is a part of record Ex. R1 which inter-alia stipulates as under:
“If after the sterilization operation, I get pregnant, then I shall report within two weeks of the missed menstrual cycle to the Doctor/Clinic and will get abortion done at free of cost. Under such circumstances I will be also eligible to receive monetary compensation from the State Government as per the prevailing Rules, which will be accepted to me. I am also aware and as such hereby confirm that if I fail to get the pregnancy aborted within two weeks as stated above, I shall not be entitled to claim any compensation from the clinic/doctor, State Government or Central Government and/or any court of law including the facility of getting MTP done on free of cost basis.”
We fail to understand that when the ultrasound report revealed the average gestational age as 24 W 2D + - 2W, how the complainant did not come to know about her being pregnant before that date. According to the ultrasound report, the gestational age of the foetus in her womb was of 26 weeks or of 22 weeks. It means that on 7.12.2006 she had about 5 months pregnancy. It is not her case that her menstrual period during this period was normal. Therefore, she could have known about her being pregnant much before 7.12.2006 but, however, she did not go to the OP Hospital for the reasons best known to her.
It is a matter of common knowledge that sterilization procedure is not a 100% safe procedure. Moreover, there is reason to believe that the complainant had become pregnant after sterilization. The date of sterilization procedure was 18.7.2006 and she gave birth to a male child on 16.3.2007 i.e. exactly after 8 months. Therefore, she herself was responsible for giving birth to the male child on 16.3.2007.
In view of the above discussion, we are of the considered opinion that the complainant has failed to prove any deficiency in service or negligence on the part of the OP. Accordingly, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 15.10.15.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
15.10.2015
Present – None
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
