ORDER
Complaint under Sec.12 of the CPA 1986 as amended upto date
Ms. Nipur Chandna, Member
The Complainant is a house wife. She had undertaken a laparoscopic ligation sterilization operation at OP – 1 hospital on 23.5.2006. She was assured that the operation was successful and she would not conceive in future. However, in January, 2014 she became pregnant and had to give birth to an unwanted child. She has alleged that this had brought an extra burden of bringing up another child on her as well as her husband. She had served a legal notice dated 20.3.2014 on 22.9.2014 on OPs but to no result and hence approached this Forum for redressal for her grievance.
OPs have contested the complaint and have denied any deficiency in service on their part. Para No. 4 & 5 of the preliminary objectin of W.S. filed by the OPs are relevant and are reproduced as under:-
4.That it has been falsely alleged in the complaint that the operation was not done properly. It is humbly submitted that the operation was perfectly well done and was successful as the complainant did not conceive for 8 years after the operation.
5.That it is humbly submitted that Tubal Ligation is often performed at the time of caesarean section or immediately after delivery. The procedure, often called Pomeroy Tubal Ligation involved lifting the tube in the mid portion, creating a loop
Female sterilization or tubal ligation is the most accepted method of contraception in India. Almost 5-6 million sterilization procedures are performed annually contributing to 98% of all sterilization and roughly 62% of all contraceptive use.
Although, tubal sterilization is considered a permanent method of fertility control, pregnancy can occur in 1 in 200 according to international studies. In the 1st Year after tubal sterilization , the estimated failure rate is 0.1-0.8%.
OPs have denied any negligence on their part and have claimed that complaint has no merits and is liable to be dismissed. They have prayed accordingly.
We have heard arguments advanced at bar and have perused the record.
The complainant has alleged that as the operation was not done properly, she had become pregnant. She further alleged that for the failure of sterilization, she was entitled to compensation prayed for by her.
The counsel for the OPs on the other hand had contended that the operation was perfectly done and was successful, as the complainant did not conceive for 8 years after the operation. The counsel for the OPs had further contended that, although, tubal sterilization is considered a permanent method of fertility control, pregnancy can occur in 1 out of 200 cases according to international studies, its estimated failure rate is 0.1-0.8%.
The OPs have taken a plea that sterilization procedures are no 100% safe and there have been cases all over the world where these procedure have failed and women have conceived due to natural causes. The OPs have pressed into service a judgment of the National Commission titled Luxmi V/s Director of Medical service 1 (2008) CPJ 460 Nc. The National Commission in the said case observed as under: -
27. The methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite 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. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is opposite.
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Explanation II appended to Sub-section (2) of Section 3 provides-
Explanation II Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
28. And that provides, under the law, a valid and legal ground for termination of pregnancy. 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.
29. 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 child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed.
Therefore, relying upon the judgment quoted above, we hold that the present complaint is not maintainable. The same is hereby dismissed.
Copy of the order be made available to the parties as per rule.
File be consigned to record room.
Announced in open sitting of the Forum on ___________
