Delhi

StateCommission

A/09/170

MEDICAL OFFICER INCHARGE AND OTHERS - Complainant(s)

Versus

SMT. KUSUM AND ANR. - Opp.Party(s)

18 Mar 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision:18.03.2019         

First Appeal - 170/2009

(Arising out of the order dated 16.12.2008 passed in Complainant Case No.234/2007 by the District Consumer Disputes Redressal Forum (North-East), Nand Nagri, Delhi)

 

1. Medical Officer Incharge,

Office of the Medical Superintendent,

SDN Hospital

 

2. Municipal Corporation of Delhi,

Through its Commissioner,

Town Hall, Chandni Chowk,

Delhi- 110006

 ….Appellant

Versus

1.       Smt. Kusum

W/o Shri. Praveen Kumar,

R/o A-54, Gali No.4,

Hardev Puri, Near Nathu Colony Chowk,

100 ft. Road, Shahdara,

Delhi- 110093

 

2.       Directorate of Family Welfare,

Govt. of NCT of Delhi,

5 Sham Nath Marg,

Delhi.

….Respondent

 

CORAM

Justice Veena Birbal, President

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, the “Act”) wherein challenge is made to order dated 16.12.2008 passed by the Consumer Disputes Redressal Forum(North-East), Nand Nagri, Delhi (in short, the “District Forum”) in CC No.234/2007 whereby the aforesaid complaint case was allowed.
2. Briefly facts of the case are that a complaint under Section 12 of the Act was filed by the respondent no.1 herein i.e. the complainant before the District Forum stating therein that the respondent no.1/complainant was already having two children aged 7 years and 5 years respectively. To avoid any addition in the family she underwent tubectomy/sterilization in appellant no.1/OP-1 hospital on 02.08.2005 and was also issued a certificate of sterilization. However, the operation was unsuccessful and the respondent no.1/complainant again conceived. It was alleged that on 16.05.2007 she went to the doctor at appellant no.1/OP-1 for medical checkup and it was found that she was pregnant. She was advised MTP (Medical Termination of Pregnancy), but due to health reasons she could not undergo the said procedure. It was stated that respondent no.1/complainant delivered a female child on 31.12.2007. Respondent no.1/complainant had alleged deficiency in service on part of appellant no.1/OP-1 and had prayed for passing an appropriate order. 
3. The complaint was opposed by the appellant no.1/OP-1 by filing written statement wherein allegations of deficiency in service were denied. However, it was admitted that the respondent no.1/complainant had undergone the aforesaid operation on 02.08.2005 at appellant no.1/OP-1 hospital. It was also stated that the respondent no.1/complainant had gone to the hospital on 16.05.2007 with history of amenorrhea and upon examination she was found pregnant. It was stated that respondent no.1/complainant was advised MTP which was refused by her. It was also alleged that respondent no.1/complainant and her husband had signed the consent letter before undergoing tubectomy on 02.08.2005 and were aware of chances of failure of said operation. It was also stated that failure rate of sterilization operation is one in every 200 women.
4.  Rejoinder was filed by the respondent no.1/complainant wherein the allegations made in the written statement were denied and facts stated in the complaint were reiterated.
5. Both the parties filed evidence by way of affidavits and written submissions were also filed.
6. After hearing the Counsel for the parties and also going through the records the District Forum held that the birth of child to respondent/complainant had shown that operation had failed. It was held that consumer was burdened to bring up a child which she never wanted. OP was directed to pay Rs. 60,000/- for bringing up the child and Rs. 30,000/- towards compensation for physical and mental harassment and Rs. 1000/- towards cost of litigation.

 

7. Aggrieved with the aforesaid order, present appeal is filed.
8. Ld. Counsel for the appellant no.1/ OP-1 has contended that Ld. District Forum has not considered the evidence and material placed on record filed by appellant no.1/OP-1.  It is contended that the respondent no.1/complainant underwent the tubectomy operation on 02.08.2005. Thereafter, she approached the hospital after a lapse of 2 years violating the directions for routine follow up. It is also contended that prior to operation, respondent no.1/complainant was explained the possibility of failure of sterilization by the operating surgeon and was also explained that in case of failure, the hospital was not to be held liable. It is contended that, a written consent was also given by respondent no.1/complainant and her husband wherein it was clearly mentioned that in case failure of sterilization, hospital and doctor conducting the operation were not to be held liable in any manner. It is further contended that upon discovery of pregnancy, respondent no.1/complainant was advised MTP (Medical Termination of Pregnancy) which she refused. It is contended that there is no negligence on part of the doctors at appellant no.1/OP-1 hospital and that the failure of sterilization operation occurred due to natural causes. It is contended that impugned order is liable to be set aside
9. On the other hand, Ld. Counsel for the respondent no.1/complainant has submitted that she was not explained about the chances of failure of sterilization or that appellant no.1/OP-1 would not be held liable in case of its failure. It is contended that there is a deficiency in service on part of the appellant no.1/OP-1 hospital in as much as respondent/complainant conceived after sterilization operation. It is contended that impugned order has been rightly passed.
10.  Counsel for parties are heard. The material on record is also perused.
11. It is an admitted position that the respondent no.1/complainant had undergone laproscopic sterilization (tubectomy) operation in appellant no.1/OP-1 hospital on 02.08.2005. It is also admitted that no child was born for about 2 years of the said operation to respondent/complainant and she conceived only after 2 years of the operation. In evidence appellant/OP1 has also provided ‘Consent form’ wherein it is categorically stated that decision to undergo sterilization has been taken independently by respondent/complainant without any pressure. In the said form, it is also mentioned that there are some chances of failure of the operation, for which the hospital/institution and operating doctor will not be held responsible by her or by her relatives or any other person whosoever. The aforesaid consent form is signed by her and her husband. Respondent/complainant has submitted that chances of its failure were not explained to them. In view of consent letter on record the stand taken is rejected. Further the sterilization operation is also not 100%. Reliance is placed upon a judgment of   State of Punjab v. Shiv Ram and others, (2005) 7 SCC 1 wherein it is held as under:

“28. 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.Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy.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.”

 

29. 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.

 

30. 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. ”

 

12. In the light of above judgement, it becomes clear that sterilization is not 100% safe and secure.  It is her own case that there was no pregnancy for 2 years after sterilization Respondent/complaint has nto come for follow up after operation as was advised to her.  After getting knowledge of conception, the respondent no.1/complainant visited hospital only once.  She was advised to go for M.T.P. but she did not undergo the said procedure. In these circumstances, the child ceases to be an unwanted child and as such the compensation for maintenance and upbringing of such a child cannot be claimed by her. Further nothing is placed on record by respondent/complainant to show that due to health reasons she could not undergo MTP. The stand of appellant/OP is that respondent/complainant refused for the same. If she was not interested in the child, as is alleged, she could have terminated the pregnancy as this is legal and permissible under the Medical Termination of Pregnancy Act, 1971.  Respondent no.1/complainant has opted for bearing of the child, as such the claim is not maintainable. Reliance is placed on the judgement of National Commission in R.P. No.2758/2008 titled St. Stephen Hospital and Another vs Smt. Shailini decided on 31.5.13.
13. For the reasons stated hereinabove, appeal is hereby allowed and the impugned order is set aside and consequently CC no. 234/2007 stands dismissed. There is no order as to costs.
14. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum.        Thereafter the file be consigned to Record Room.

 

(Justice Veena Birbal)

President