Learned Advocate Mr. Pulak Saha is present for the Complainant. 

Learned Additional Government Pleader Mr. Promod Sahu is also present for the O.Ps. 

Today was fixed for passing necessary order on the question of maintainability of the complaint. 

Accordingly, today we are passing order. 

The Complainant Smt. Sukla Debnath filed a complaint narrating the facts that on 26/02/2011 as per advise of the O.P. No.4(Dr. Pradip Das) now retired who worked as Head of Department of GYNA /OBST in IGM Hospital at Agartala she under gone LL Operation(Sterilization). After operation it was told that operation was successful and Doctor assured them there will be no chance of having a child and they could lead unrestricted conjugal life. But at the end of 2018 the Complainant had conception due to enjoyment of conjugal life. In the month of February, 2019 she visited at IGM Hospital, Agartala and met a Doctor who told her that she became pregnant because of LL Failure and the child has to take birth and there was no option at that stage and accordingly she delivered a female child on 27/06/2019 in the IGM, Hospital. In the discharge certificate the diagnosis was recorded as “multigravida due to L L Failure”.  Now she has filed a complaint for getting compensation alleging there was negligence on the part of the O.P. No.4 as well as the Hospital Authority i.e. O.P. Nos.1,2&3. 

The O.Ps. contested the proceeding by the way of filing joint written statement and in the written statement it is vehemently raised the question of maintainability of the proceeding. And that is why we heard the matter on the question of maintainability of the proceeding on earlier occasion. At the time of hearing Learned Additional Government Pleader Mr. P. Sahu submitted that it is not a consumer disputes. There is a scheme under family planning and if there is a L L failure then victim will get compensation as per that scheme and accordingly victim filed a petition for getting a compensation before the Authority but without receiving that compensation she has filed the complaint before this Commission which is not tenable in law as because the Complainant is not a Consumer as per Consumer Protection Act, 1986.

On the other hand Mr. Pulak Saha Counsel of the Complainant submitted that it is a consumer disputes. In this regard he relied upon two decisions of the Apex Court of which one is decided on 24/04/2000 in Civil Appeal No.2897 of 2000 (State of Haryana others Versus Santra and another is decided on 01/07/2015 in Civil Appeal No.8065 of 2009 and 5402 of 2010. 

We have gone through both decisions and we found that the decisions are not supporting the argument of Mr. P. Saha rather we find that the facts of the Civil Appeal No.2897 of 2000 to some extent similar to the facts of the Complainant and in that case the Hon'ble Supreme Court decided at Para -10 that negligence is “tort”. 

In that case victim party filed a Civil suit seeking compensation due to failure of Sterilization and Civil Court granted relief but it was not by the Consumer Court. 

Moreover, in the instant case we find that token charge was taken by the Government for the purpose of L. L. Operation . We can not say for that purpose the Complainant is a consumer as per C.P. Act, 1986. 

There is a land mark decision of the Supreme Court decided in Indian Medical Association Vs. V.P. Shantha reported in (1995) 6 SCC 651 in which the Hon'ble Apex Court held that “Service rendered free of charge by a medical practitioner attached to a hospital / Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be 'service' as defined in Section 2(1)(0) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position”.  

In the result we are of the opinion that the Complaint is not  maintainable in law. 

Accordingly, the complaint petition is rejected.