Tamil Nadu

South Chennai

316/2008

S.Kalaivani - Complainant(s)

Versus

The Director, ESI Hospital & another - Opp.Party(s)

P.Ramalingam

08 Apr 2019

ORDER

                                                                        Date of Filing  : 11.08.2008

                                                                          Date of Order : 08.04.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP. : MEMBER

 

C.C. No.316/2008

DATED THIS MONDAY THE 08^TH DAY OF APRIL 2019

                                 

Mrs. S. Kalaivani,

W/o. Mr. M. Sadasivam,

No.9Q, Block,

R.V. Nagar,

Jafferkhan Pet,

Chennai – 600 083.                                                        .. Complainant.                                                 

 

      ..Versus..

 

1. The Director,

ESI Hospital,

K.K. Nagar,

Chennai – 600 078.     

 

2. Dr. Binayak Debbarmad,

Specialist Gr. II (G & O),

E.S.I. Hospital,

K.K. Nagar,

Chennai – 600 078.                                                 ..  Opposite parties.

 

Counsel for the complainant                 : M/s. P. Ramalingam & others

Counsel for the opposite parties 1 & 2 : M/s. K.M. Venugopal

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 pray to pay a sum of Rs.3,00,000/- towards compensation for mental agony etc with cost to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that her husband is the member of the 1^st opposite party, ESI Hospital.  On 08.08.2005, the complainant was admitted in the 1^st opposite party’s hospital as I.P. No.13075644.  The complainant gave birth to a child and undergone Tubectomy on 08.08.2005.  Thereafter, the complainant discharged on the same day.  The process of delivery and surgery related to Tubectomy are highly successful and there is no failure.  The complainant submits that after 2 years of the said Tubectomy, the complainant once again admitted in the opposite party’s hospital on 12.11.2007 for the complaint of pregnancy and medical treatment.   The 2^nd opposite party, doctor in the 1^st opposite party hospital along with a team of doctors given due medical treatment for abortion and thereby, MTP Tubectomy operation was successfully done on 13.11.2007 and the complainant was discharged from the hospital on 20.11.2007. The complainant submits that after the 2^nd Tubectomy operation, the complainant has suffered severe back pain, body pain resulting that she cannot stand erect continuously and could not take food because of vomiting sensation and hence, the complainant still suffered ill health. The complainant is suffering with such ailments due to the negligence of the opposite party doctors during the Tubectomy operation.   The complainant submits that due to the failure of Tubectomy operation, the 2^nd opposite party doctor addressed a letter dated:25.01.2008 to District Family Planning Welfare Officer, Chennai Corporation for suitable compensation. The complainant submits that due to the failure of Tubectomy resulting second pregnancy leading MTP Tubectomy operation for the second time caused great mental agony and heavy expenses, loss of health and chronic ailments.   The act of the opposite parties amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by  opposite parties 1 & 2 is as follows:

The opposite parties 1 & 2 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.    The opposite parties 1 & 2 state that the L.S.C.S. and sterilization operation of the complainant was done in the opposite party’s hospital on 09.08.2005 after all prescribed tests.  Thereby, the complainant was fit enough to have the Tubectomy operation which was performed by Dr. Binayak Debburman, the 2^nd opposite party with great success.  The complainant was also very happy.  But she has not followed the post-operative instructions.  The opposite parties 1 & 2 state that it is a well known medical fact that no method of tubal sterilization is without failure and most of the sterilisation failure are not preventable.   The complainant, Mrs. S. Kalaivani came to the hospital with the complaint of pregnancy on 12.11.2007 for the second time and requested suitable medical treatment for abortion.  Thereby, the MTP Tubectomy was repeated and the complainant was discharged from the hospital after due recovery.  Since the complainant visited the hospital several times and wanted to have some enhanced insurance benefits from the Family Welfare Department, the 2^nd opposite party earnestly came forward to help and has given a letter on 25.01.2008 for such cash benefit.  The complainant also has availed all such benefits from the District Family Planning Welfare Office, Chennai Corporation. Therefore, there is no negligence or deficiency in service on the part of the opposite parties 1 & 2.  Hence, the complaint is liable to be dismissed.

3.     To prove the averments in the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A8 are marked.  Proof affidavit of the opposite parties 1 & 2 is filed and documents Ex.B1 to Ex.B5 are marked on the side of the opposite parties 1 & 2.  

4.      The point for consideration is:-

Whether the complainant is entitled to a sum of Rs.3,00,000/- towards compensation with interest and cost as prayed for?

5.      On point:-

The complainant has neither filed her written arguments nor advanced any oral arguments in this case.  The opposite parties have filed their written arguments.  Heard the opposite parties’ Counsel also.  Perused the records namely; the complaint, written version, proof affidavit and documents.  The complainant pleaded and contended that her husband is the member of the 1^st opposite party, ESI Hospital.  On 08.08.2005, the complainant was admitted in the 1^st opposite party’s hospital as I.P. No.13075644.  Ex.A1 is the copy of E.S.I. Corporation Identity card.  The complainant gave birth to a child and undergone Tubectomy on 08.08.2005 as per Ex.A2.  Thereafter, the complainant discharged on the same day.  The process of delivery and surgery related to Tubectomy are highly successful.  There is no failure also.  Further the contention of the complainant is that after 2 years of the said Tubectomy, the complainant once again admitted in the opposite party hospital on 12.11.2007 for the complaint of pregnancy and medical treatment as per ExA3.   The 2^nd opposite party, doctor in the 1^st opposite party hospital along with a team of doctors given due medical treatment for abortion and thereby, MTP Tubectomy operation was successfully done on 13.11.2007 and the complainant was discharged from the hospital on 20.11.2007.  The operation is very successful also.  Further the contention of the complainant is that after the 2^nd Tubectomy operation, the complainant has suffered severe back pain, body pain resulting that she cannot stand erect continuously and could not take food.  The complainant had persistent vomiting sensation.   The complainant is suffering with such ailments due to the negligence of the opposite party doctors during the Tubectomy operation.   But on a careful perusal of records, there is no iota of any evidence to prove that due of the negligence of the doctor resulting the alleged ailments of the complainant in this case throughout the 1^st and 2^nd Tubectomy operations.   

6.     Further the contention of the complainant is that due to the failure of Tubectomy operation, the 2^nd opposite party doctor addressed a letter dated:25.01.2008 as per Ex.A4 to District Family Planning Welfare Officer, Chennai Corporation for suitable compensation.   Eventhough in Ex.A4, it is stated that there is a failure in Tubectomy operation.   In reality, there is no failure because the law is well settled that “0.3% to 7% failure in sterilization operation has been recognized”.  Further the contention of the complainant is that due to the failure of Tubectomy resulting second pregnancy leading MTP Tubectomy operation for the second time caused only due to the medical negligence and treatment of the opposite parties caused great mental agony and heavy expenses, loss of health and chronic ailments.  But on a careful perusal of records, the complainant has not produced any document to prove the negligence of the opposite party resulting the second pregnancy.  Equally, the 2^nd MTP Tubectomy operation necessitated only because of the requirement of the complainants.  The rate of failure of such Tubectomy operation is an exception.   It cannot be taken as a tool for claiming compensation.  The complainant is claiming a sum of Rs.3,00,000/- towards for compensation for such negligence in treatment by way of Tubectomy.  But the complainant has not produced any scrap of paper for such huge claim or loss.  

7.     The learned Counsel for the opposite parties 1 & 2 would contend that the L.S.C.S. and sterilization operation of the complainant was done in the opposite party’s hospital on 09.08.2005 after all prescribed tests as per Ex.B3.  Thereby, the complainant was fit enough to have the Tubectomy operation which was performed by Dr. Binayak Debburman, the 2^nd opposite party with great success.  The complainant was also very happy.  But she has not followed the post-operative instructions.  The complainant has not pleaded and proved after Tubectomy operation, when she had the menses and what are the natural changes in her body in a reasonable time establishes that the Tubectomy conducted by the 2^nd opposite party is success.   Further the contention the opposite parties 1 & 2 is that it is a well known medical fact that no method of tubal sterilization is without failure and most of the sterilisation failure are not preventable.   The failure of the sterilization operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing surgery.  The complainant, Mrs. S. Kalaivani came to the hospital with the complaint of pregnancy on 12.11.2007 for the second time and requested suitable medical treatment for abortion.  Thereby, the MTP Tubectomy was repeated and the complainant was discharged from the hospital after due recovery as per Ex.B4 & Ex.B5, Admission and Discharge Summary.  Since the complainant visited the hospital several times and wanted to have some enhanced insurance benefits from the Family Welfare Department.  The 2^nd opposite party earnestly came forward to help and has given a letter as per Ex.B2 on 25.01.2008 for such cash benefit.  The complainant also has availed all such benefits from the District Family Planning Welfare Office, Chennai Corporation and come forward to file this complaint and claiming huge imaginary compensation without any proof such as negligence in minimum standard of care and breach of duty. The complainant also has not taken minimum reasonable steps for proving medical negligence by expert opinion. 

8.     The learned Counsel for the opposite parties 1 & 2 cited the decisions reported in:

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

F. A. No.36/2012

Between

Employees State Insurance Corporation Hospital

-Versus-

S. Vasanthi, Chennai – 63.

Held that

        “12. (1) State of Haryana and others –vs- Raj Rani 2005 (4) CTC 703 it had been held as follows:

" 3.A 3-Judge Bench of this Court has held in State of Punjab V. Shiv Ram and others, 2005(4) CTC 627, (C.A. 5128 of 2002, decided on August 25, 2005) that child birth in spite of the sterilization operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation.  The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise.  Several textbooks on medical negligence have recognized the percentage of failure of the sterilization operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science.  The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognized by medical science.  Thus, the pregnancy can be for reasons de hors and negligence of the surgeon.  In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation.  Then the question of the State being held vicariously liable also would not arise.  The decrees cannot, therefore, be upheld. &quot.

12.(2) State of Punjab –vs- Shiv Ram and others (2005) 4 MLJ.132 (S.C), it had been held as follows:

“& quot; Merely because of woman having undergone a sterilization operation became pregnant and delivered a child, the operating  surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child.  The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery and  quot;”

and

AIR 2015 (NOC) 835 (HYD.)

Between

Smt. Anandi Bai & another

-Versus-

The State of Andra Pradesh & others

Held that

          “Land Acquisition Act (1 of 1894), S.23 – Constitution of India, Arts. 14, 300-A – Consent award – Passed by Land Acquisition Officer – Without obtaining consent of land owner, without issuing notice to them – Illegal, violative of Arts. 14 and 300-A of Constitution”.

There is no negligence on the part of the opposite parties 1 and 2 in this case.   Considering the facts and circumstances of the case, this Forum is of the considered view that this complaint has to be dismissed.

In the result, this complaint is dismissed.  No costs.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 08^th day of April 2019. 

 

MEMBER                                                                  PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	23.10.2002	Copy of ESI Corporation identity card with insurance number 13075644
Ex.A2	09.08.2005	Copy of primary case record of hospitals – admition, delivery of child, Tubectomy
Ex.A3	12.11.2007 and  13.11.2007	Copy of Investigation report of ESI IC Hospitals and Abortion, Tubectomy operation
Ex.A4	25.01.2008	Copy of Original letter given by the 2nd opposite party addressing to District Family Planning Welfare Office, Chennai Corporation
Ex.A5	10.03.2008	Copy of notice from the complainant
Ex.A6	18.03.2008	Copy of postal acknowledgement
Ex.A7	02.05.2008	Copy of reply notice from ESI hospital, K.K. Nagar, Chennai – 78
Ex.A8	01.08.2008	Copy of salary slip of the complainant’s husband

 

OPPOSITE PARTIES 1 & 2 SIDE DOCUMENTS:-

Ex.B1	02.05.2008	Copy of reply notice sent by the 1st opposite party
Ex.B2	25.01.2008	Copy of letter sent by the 2nd opposite party
Ex.B3	08.08.2008 to 17.08.2005	Copy of Admission and Discharge Summary
Ex.B4	20.08.2007 to 30.08.2007	Copy of Admission and Discharge Summary
Ex.B5	12.11.2007 to 20.11.2007	Copy of Admission and Discharge Summary

 

 

MEMBER                                                                  PRESIDENT