Haryana

Karnal

CC/37/2022

Sunita - Complainant(s)

Versus

State Of Haryana - Opp.Party(s)

Kavinder Singh

13 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 37 of 2021

                                                        Date of instt.20.01.2022

                                                        Date of Decision:13.05.2024

 

Sunita wife of Shri Maan Singh, resident of Dera Sikligar, P.O. Choura, Tehsil Gharaunda, District Karnal.

                                                                        …….Complainant.

                                              Versus

 

1. State of Haryana through Collector, Karnal.
2. Chief Medical Officer, Civil Hospital, Karnal.
3. Seema, Asha Worker, VPO Garhi Khajua, District Karnal. Mobile no.9050482858 and 7027824880.
4. Concerned Doctor who conducted operation.

 

                                                                …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr.  Suman Singh…..Member

 

 Argued by: Shri Kavinder Singh, counsel for the complainant.

                    OPs exparte(vide order dated21.12.2023.

 

                     (Dr. Suman Singh, Member)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that one Asha Worker namely Seema had motivated the complainant for family planning/sterilization operation as the complainant was already having three male children. Sterilization operation of complainant was conducted by the concerned Doctor of Civil Hospital, Karnal and amount was also transferred in the account of the complainant on 13.03.2019 and complainant has visited in civil hospital, Karnal several times for follow up treatment. In the month of April 2019, complainant was suffering from abdomen pain and she was treated by the doctor of KD Hospital, Gharaunda and USG was conducted on 19.09.2019 whereby it was informed that the complainant was having pregnancy of 8 weeks 4 days and LMP was mentioned as 03.07.2019 and EDD was mentioned as 10.04.2020. There is great negligency on the part of the OPs and said child is unwanted child and complainant is a very poor lady and she is also having three male children and a false operation was conducted by the doctor of Civil Hospital, Karnal and it was the failure of the sterilization operation due to which the said pregnancy occurred and the complainant has given birth to a male child which is fourth child of complainant and the reputation of the complainant is also lowered down in the eyes of villagers as the complainant had already stated that she has undergone sterilization operation. Due to the said pregnancy a huge loss is also suffered by the complainant. It is further alleged that complainant moved an application to CM Window Karnal for taking action into the matter. The said application was forwarded to Civil Hospital, Karnal and till date no action has been taken on that application and no enquiry is made, no penal is constituted by the OP-CMO, Civil Hospital, Karnal for opinion/action to be taken against responsible person despite repeated requests of the complainant. It is further averred that complainant gave birth to a male child on 03.04.2020 at KCGMCH, Karnal but unfortunately, the said male child died on the same day. The complainant and her husband approached the concerned official for getting death certificate of their child and also furnished affidavit etc but despite that the death certificate of child has not been supplied to the complainant. In this way there is deficiency in service and negligence on the part of the OPs. Hence this complaint.

2.             On notice, OPs no.1 and 2 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that on the complaint of the complainant to C.M. Window no.CMOFF/N/2019 dated 30.09.2019, the matter was thoroughly investigated by Deputy Civil Surgeon, Karnal and no negligence was found on the part of the OPs and a report dated 22.06.2020 was submitted in which, it was categorically stated that because the tube of the complainant could not be removed so, OP no.4 as is done in such type of case, has to apply stitches. It is further pleaded that complainant has totally failed to explain “as to how she is involved and the OP was negligent.” The case of the medical negligence stands on a different footing in contrast to other cases. In the case pertaining to professional negligence, the onus lies heavily on the part of the complainant to prove and establish the factum of negligence and only thereafter, the burden that negligence has not been committed is shifted at the shoulder of the treating doctor. It is further pleaded that there is no expert evidence on record to suggest that any negligence is committed by the OP in the instant case, neither any medical literature is filed by the complainant to establish her case, bald, baseless and concocted facts are made by virtue of the instant case claiming illegal and arbitrary amount. It is further pleaded that complainant was operated upon by OP no.4 i.e. Dr. Neeru Bala for tubectomy on 15.01.2019 in Civil Hospital Karnal. As per application form submitted by her during operation only one fallopian tube (right) could be legated whereas the other FT (left) could not be legated due to adhesions. After operation this fact was specifically communicated and explained to complainant and her mother-in-law Dhanwanti by the OP no.4, They were also told that due to this reason there was chance of conceiving by complainant. In addition to aforesaid facts, it is specifically mentioned in the application form submitted by complainant and it was also duly explained before and after the operation to her and as well as her mother-in-law that even after tubectomy operation there are chances of conception in 18-20 cases out of 1000 cases of tubectomy. This fact was clearly explained to them. They were also advised to inform the concerned medical officer/institute in case of any irregularity or missing of menstruation and also in case of conception so that she could avail timely and free medical  facility i.e. Termination of unwanted pregnancy. They also agreed that complainant shall not claim any compensation from the OP in case of pregnancy or any other complications arising out of tubectomy operations. They were also advised about alternative methods of contraception. The OP is not aware if complainant actually became pregnant or not after the tubectomy operation because she has not attached any document in this regard. In the absence of any detail or particulars, it is also not known to the OP, if complainant has contacted or intimated or consulted any Government Medical Officer or institution regarding her pregnancy. If complainant had become pregnant and did not want to continue the same, she should have contacted and consulted concerned medical officer or institution soon after alleged detection of pregnancy as had already been explained to her before and after the operation. If she had done so necessary advice could have been given to her and the unwanted pregnancy could have been medically terminated within safe period. In the aforesaid circumstances, complainant is not entitled to any damages or compensation from the OP. Even the date of tubectomy operation is not mentioned in the complaint. The exact or approximate date of the month of April, 2019 when alleged pregnancy was detected through ultrasound examination is not mentioned in the complaint. On the other hand, it is mentioned in the complaint that complainant was having pregnancy of 8 weeks 4 days in the month of April 2019 and expected date of delivery was mentioned as 10.04.2020. This is most absurd. If there was pregnancy of 8 weeks 4 days in April 2019, the expected date of delivery would have been in November, 2019 or early December 2019 and not as 10.04.2020. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.        

3.             OPs no.3 and 4 filed their separate written versions but followed the same lines of written version filed by the OPs no.1 and 2.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of bank passbook of complainant Ex.C1, copy of discharge report Ex.C2, copy of K.D. Hospital, OPD report Ex.C3, copy of K.D. Hospital, U.S.G. Report Ex.C4, copy of ultrasound report Ex.C5, copy of legal notice Ex.C6, postal receipts Ex.C7/1 and Ex.C7/2, copy of order dated 07.10.2020 Ex.C8, copy of affidavit of Maan Singh Ex.C9, copy of application to C.M. Window Ex.C10, copy of CM Window Grievance Report Ex.C11, copy of aadhar card of complainant Ex.C12, copy of aadhar card of Maan Singh Ex.C13, copies of birth certificates of Kartik, Jagdish and Karnal Ex.C14 to Ex.C16, copy of Histopathology Report Ex.C17, copy of follow up card of complainant Ex.C18 and closed the evidence on 10.10.2023 by suffering separate statement.

5.             On the other hand, on 21.12.2023 neither anyone  has put into appearance on behalf of OPs nor tendered their evidence after availing several opportunities including one last opportunities. The position remained the same on the last three dates, hence the OPs were proceeded against exparte, vide order dated 21.12.2023 of the Commission.

6.             We have heard the learned counsel for the complainant and have gone through the record available on the file carefully.

7.             Learned counsel for the complainant, while reiterating the contents of complaint, has vehemently argued that complainant had undergone a sterilization operation by the concerned Doctor of Civil Hospital, Karnal. In the month of April 2019, complainant was suffering from abdomen pain and she was treated by the doctor of KD Hospital, Gharaunda and USG was conducted and report dated 19.09.2019 informed that the complainant was having pregnancy of 8 weeks 4 days. The said pregnancy is unwanted as complainant is already having three male children and it was the result of failure of the sterilization operation and due to said pregnancy a huge loss is suffered by the complainant. He further argued that complainant moved an application to CM Window Karnal for taking action into the matter but till date no action has been taken on the said application. The complainant has given birth to a male child on 03.04.2020 at KCGMCH, Karnal but unfortunately, the said child died on the same day and lastly prayed for allowing the complaint.

8.             As per version of the OPs, on the complaint of the complainant the matter was thoroughly investigated by Deputy Civil Surgeon, Karnal and no negligence was found on the part of the OPs and a report dated 22.06.2020 was submitted wherein it was categorically stated that because the tube of the complainant could not be removed so, OP no.4 in such type of case, has to apply stitches. Complainant has totally failed to explain in what manner the OP was negligent. There is no expert evidence on record to suggest that any negligence is committed by the OPs. Complainant was operated upon by OP no.4 i.e. Dr. Neeru Bala for tubectomy on 15.01.2019 in Civil Hospital Karnal. During operation only one fallopian tube (right) could be legated whereas the other FT (left) could not be legated due to adhesions. The said fact was specifically communicated and explained to complainant, due to this reason there were chances of conceiving by the complainant. He further argued that even after tubectomy operation there are chances of conception in 18-20 cases out of 1000 cases of tubectomy. The complainant actually became pregnant or not after the tubectomy operation because she has not attached any document in this regard. If complainant had become pregnant and did not want to continue the pregnancy, she should have contacted and consulted concerned medical officer or institution soon after alleged detection of pregnancy and the unwanted pregnancy could have been medically terminated within safe period. The date of tubectomy operation is not mentioned in the complaint. The exact or near about date of the month of April, 2019 when alleged pregnancy was detected through ultrasound examination is not mentioned in the complaint. In the complaint complainant has alleged that she was having pregnancy of 8 weeks 4 days in the month of April 2019. If there was pregnancy of 8 weeks 4 days in April 2019, the expected date of delivery should have been in November, 2019 or early December 2019 and not as 10.04.2020 as mentioned in UGS report.

 9.            Before going to the merits of the case, firstly we decide whether the complainant falls within the definition of “consumer” as per Consumer Protection Act, 2019 or not?

 10.          The definition of Consumer as defined in Section 2 sub clause (7) of Consumer Protection Act, 2019, which is reproduced as under:-

(7)    Consumer means any person who:-

i)      buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

ii)        hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are available of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

11.            In the present case, nothing has been paid or promised or partly paid and partly promised by the complainant rather, on 13.03.2019, OPs have paid Rs.1400/- to the complainant for family planning operation and this fact is proved from the statement of account of complainant Ex.C1. Hence, the complainant does not fall under the ambit of “Consumer” as defined under Section 2 sub section (7) of Consumer Protection Act, 2019.

12.           Furthermore, if the sake of arguments, it is presumed that complainant is consumer, the onus to prove the negligence on the part of the OPs was relied upon the complainant but complainant has miserably failed to prove the same by leading any cogent and convincing evidence. The complainant has nowhere mentioned the exact date of sterilization operation. There is no birth certificate or death certificate of new born baby on record. Complainant has neither placed on file any expert opinion nor made any prayer for constitution of the Board of Doctors to opine that the OPs were negligent while in conducting the operation. The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures.  In this regard, we place reliance on the judgment titled as C.P. Sreekumar (Dr.), MS (Ortho) versus S. Ramanujam12, the Hon’ble Supreme Court of India has held that the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.”

13.           Complainant herself has alleged that she has given birth to a male child on 03.04.2020 at KCGMCH, Karnal but unfortunately, the said child died on the same day. Hence, the question of financial loss does not arise at all. If the child was alive then only she would have suffered financial loss in raising the child.

14.           Keeping in view the ratio of the law laid down in the abovesaid judgment and the facts and circumstances of the present complaint, there is no negligence or deficiency in service on the part of OPs.

15.           In view of the above discussion, the present complaint is devoid of merit and deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated: 13.05.2024    

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Suman Singh)

                 Member                            Member