08/08/16
HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT
This Appeal is directed against the judgment and order passed by Learned District Forum, South 24-Parganas in CC 112 of 2011 allowing the complaint with cost of Rs.10,000/- and directing the OPs to pay the sum of Rs.50,000/- towards deficiency in service, mental agony etc. within one month failing which the OPs shall pay penalty @ Rs.1,000/- per day till realization out of which 50% would be paid to the Complainant and the balance be deposited with the Consumer Welfare Fund.
The case of the Complainants/Respondents, in short, is that the Complainant No.2 underwent hysterectomy and simultaneously ligation operation on 18/09/07 in the OP Hospital. The doctor told that the operation was successful. But after two years the Complainant No.2 again conceived and thereafter she lost her job. For the said reason the complaint was filed before the Learned District Forum.
The Learned Counsel for the Appellant has submitted that no problem was faced by Complainant No.2 within two years of ligation operation and no treatment was sought for by the Complainant. It is contended that the Enquiry Committee was formed and it was opined that there was no technical fault. The Learned Counsel has submitted that there was no deficiency in service or negligence on the part of the OPs. The Learned Counsel has referred to the medical literature “Jeffcoate’s Principles of Gynaecology (7th International Edition) and Text Book of Gynaecology including Contraception (4th Edition)” by D. C. Dutta.
The Learned Counsel for the Respondent has submitted that the ligation operation was done and it was successful as told by the doctor. It is contended that two years later the Respondent No.2 again conceived. It is submitted that the risk factors were not stated at the time of operation and there was deficiency in service on the part of the OPs.
We have heard the submission made by both sides and perused the papers on record. It is the specific contention of the Respondent/Complainant that she underwent ligation on 18/09/07 and in the year 2009 she again conceived. In the decision reported in I (2015) CPJ 15 (NC) [Mithilesh vs. Primary Health Centre, Dhowlana, Hapur & Anr.] it has been held that the Petitioner could not explain as to why on coming to know about pregnancy she did not opt for medical termination of pregnancy. It has been held that if the couple opts for bearing the child, it ceases to be an unwanted child and the negligence has not been proved. In another decision reported in I (2008) CPJ 460 (NC) [Lakshmi vs. Director of Medical Services] it has been held that it is for 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. The same view has been taken in the decisions reported in IV (2005) CPJ 14 (SC) [State of Punjab vs. Shib Ram & Ors.] and IV (2014) CPJ 147 (NC) [Govt. of NCT of Delhi & Ors. vs. Babita].
In the instant case it has been stated in paragraph 7 of the complaint that the Complainants got two sons out of their wedlock and they had no intention or desire to have third issue as they were very poor and it would be very difficult for them to bring up a third child. It has clearly been held in the aforesaid decision that if the Petitioner was unable to sustain the pregnancy she could have opted for medical termination of pregnancy. But in the instant case knowing that the Complainant No.2 conceived the Complainants opted for sustaining the pregnancy and when contacted the doctors as stated in paragraphs 10 and 11 of the complaint it was told that there was risk of undergoing termination of pregnancy at that stage. Under such circumstances, relying on the aforesaid decision, we are of the considered view that there was no negligence or deficiency in service on the part of the Appellants and the Learned District Forum was not justified in allowing the complaint.
The Appeal is allowed. The impugned judgment is set aside. The petition of complaint is dismissed.
