Date of filling: 13.05.2022
Date of order: 28.09.2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE
PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A., B.L. PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc., B.L. MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A., MEMBER-II
WEDNESDAY THE 28th DAY OF SEPTEMBER 2022
CONSUMER COMPLAINT NO. 26/2022
Mrs. Shakila,
W/o. Manjunathan,
No. 3, Indira Nagar,
4th Street, Ambur,
Thirupathur District. …Complainant
-Vs-
1. The Head of the Department,
Department of Obstetrics & Gynaecology,
Govt Medical College & Hospital,
Vellore -11.
2. The Deputy Director,
Health and Family Department,
No. 23, Family Welfare Bureau,
Velapadi,
Vellore – 632 001.
3. The Director,
Health Department,
No.258, DMS Complex,
Anna Salai, Teynampet,
Chennai – 600 018. …Opposite parties
Counsel for complainant : Thiru. S. Vetrivelan & N. Sunobor
Opposite parties- 1 to 3 : Set exparte
ORDER
THIRU. A. MEENAKSHI SUNDARAM, B.A.,B.L.PRESIDENT
This complaint has been filed under section 35 of the Consumer Protection Act 2019. The complainant has prayed this Hon’ble Commission to direct the opposite parties to pay a sum of Rs.2,00,000/- towards the negligent operation that resulted in failure conduct of Family Planning operation and to pay a sum of Rs.2,00,000/- the pain and suffering and to pay a sum of Rs.2,00,000/- as deficiency in service and also to pay a sum of Rs.1,00,000/- towards mental agony, stress, strain and vain due to negligence act of the operation and wrong assurance given to the complainant.
1.The case of the complaint is briefly as follows:
The complainant married one Mr. Manjunadhan on 05.05.2014 and due to their wedlock, they begotten a female baby child namely M. Heera Sri on 18.03.2016 and a male baby child namely M. Yogith on 25.07.2018. Satisfied with their two children, they opted for family planning operation, and came to the first opposite party for the purpose of permanent family planning operation. She was received by the first opposite party and admitted in the department of Obstetrics & Gynaecologist, Government Medical College, Vellore. She was operated for the same and she got discharged. At the time of admission, the first opposite party have obtained signature from the complainant without any information or intimation about the particulars and ingredients of those papers which is highly vexatious. Further, as per the prescribed medical operation rules, and regulations the first opposite party have not obtained any willingness signature from the complainant blood relatives i.e., in particular from her husband or parents which is the ultimate violation of law. Believing that, she is protected under the Family planning operation, she was continuing her matrimonial life. After a period of 2 years and 8 months, she underwent sudden Menstrual discharge, added with severe stomach pain. Hence, she has been again brought back to the first opposite party Hospital where she was operated for family planning, to the shock and dismay. She was informed that, due to the failure of family planning operation conducted on 31.07.2018 she got conceived again, that too she got conceived in the right side fallopian tube i.e., the medical impression called as “Ruptured Ectopic Tubal Pregnancy with hemoperitoneum” (Ectopic Pregnancy). The first opposite party have stated to the complainant that, she has to be operated again to remove the misconceived part in the Fallopian tube to save her life and the said officer also assured that, she will be recommended for compensation for the failure of family planning operation in few weeks from Health and Family Welfare Department, Vellore, but, from the date of 18.03.2021 till today after lot of requests and demands she has not been granted with her assured compensation which has put her to the ultimate, mental agony, stress, strain and vain mentally and physically. Due to the negligence of the operation that ended in failure of family planning operation and so of her miscarriage on fallopian tube which resulted in major surgery (Laparatomy), she has been put to a serious damages in her body and health, she is suffering from enormous pain and vain day to day due to after effect of the Laparotomy. Moreover, the delay and dragging attitude on the part of opposite parties all have put her into huge pain and sufferings mentally and physically. Hence, she caused a legal notice dated 11.04.2022, demanding her legal right of compensation to the tune of Rs.2,00,000/- towards the negligent operation along with deficiency in service that resulted in failure conduct of family planning operation Rs.2,00,000/- and for the pain and sufferings continued due to the major surgery (Laparotomy), Rs.2,00,000/- towards the deficiency of service of dragging and naggings made by the opposite parties for the past 1 year and above for providing compensation to her Rs.1,00,000/- towards her mental agony, stress, strain and vain due to the negligence act of operation and wrong assurance resulted in deficiency of service given by the first opposite party in which the other opposite parties who are the superiors vicariously liable to compensate the complainant herein. The legal notice has been duly served to all the opposite parties, receiving the same, the second opposite party have issued a reply notice without any regret about the failure of the operation and just a vague statement again stating that, a reference has been forwarded to higher officers for providing compensation that is very a meagre amount of Rs.30,000/-. On going through the same, the complainant has been put to shock and dismay because the said compensation amount will not be sufficient for her serious loss and damages of her physical and mental health factors. Hence, the complainant have issued a Rejoinder notice dated 26.04.2022 by denying the cheaper compensation amount and intimated about her further legal proceedings against all the opposite parties. Hence, this complaint.
2. On receipt of this notice from this Hon’ble Commission. Opposite parties did not appear, the opposite parties called absent set exparte.
3. Proof affidavit of complainant filed. Ex.A1 to Ex.A12 were marked. Written argument of complainant filed.
4. The Points that arises for consideration are:
1. Whether there is any deficiency in service on the part of the opposite
parties?
2. Whether the complainant is entitled for relief as claimed in the complaint?
3. To what relief, the complainant is entitled to?
5. POINT NOS.1&2: The complainant underwent Family Planning operation at the first opposite party’s hospital. After she begotten who children thereafter she continued her marital life 2 ½ years. Since, she had severe stomach pain, she was admitted in the first opposite party hospital on examination, she was informed that she conceived in the right side Fallopian tube in which medical termatology is called as rupture ectopic puerperal pregnancy with heavy in short ectopic pregnancy. Main grievance of the complainant is that due to failure of the family planning operation hemoperitoneum she got conceived again. Therefore there is a negligence on the part of the opposite party. Even after doing the family planning operation, she got conceived again. As a result, she underwent a major surgery namely laparotomy, which caused mental and physical suffering due to the negligence act of the opposite parties. Therefore the complainant issued a legal notice, calling upon the opposite parties to pay compensation for the negligence operation which amounts to deficiency in service on the part of the opposite parties. As there was no response, the complainant filed this complaint before this hon’ble Commission. Per contra on receipt of the notice from this Commission the opposite party appeared and filed detailed written version wherein the categorically denied the allegations of the complainant. Further they admitted that she was under went puerperal sterilization on 31.07.2018 at Government Vellore Medical Hospital i.e., first opposite party herein. As per the standard guidelines Ministry of Health and Family Welfare after explaining the chances of failure and complications of sterilization procedure and getting signature from patient in concerned form. The concerned form also mentioned failure of sterilization to research procedure and complication (ectopic pregnancy) for which the patient cannot approach the court for any compensation concerned for sterilization and has also pay obtained her husband namely Manjunadhan. If there is any complication occur due to failure of the sterilization puerperal process said sterilization operation, the government itself provide a compensation of Rs.30,000/-, In fact, the complainant was reported to Ambur Government Hospital the history of two months of amino abdomen pain and the LMP was 22.21 UPT positive and research GVMCH at the time of admission on 18.03.2021. She was diagnosed clinically USG rupture right ectopic pregnancy which is one of the complications of puerperal sterilization mentioned in the concerned form. Admittedly the complication was arising out of the failure of puerperal sterilization done on 31.07.2018. But the opposite party contended that since, the complainant has given informed consent also gave an undertaking not to approached the court, if there is any complications arising out of the failure of the said sterilization operations. Further, it is known fact that the incident of sterilisation failure is 5:1000 and the risk of pregnancy remained beyond first year and the human rights menopause. Therefore, the incident of ectopic pregnancy is 12.5%. Further, the ectopic pregnancy is an excepted and accepted complications sterilization. Thus, the government of India accepting the complications, provides a compensation of Rs.30,000/- Therefore, the Deputy Director of Health and Family Welfare sent and request for sanction of Rs.30,000/- to the complainant and the same was sanctioned by the Director, Department, DMS Complex on 05.07.2021. But there was no documents to show that the said amount was handed over to the complainant or not. Further, in view of the Supreme Court, Order In
JACOB MATHEW
VS
STATE of PUNJAB & Anr.
And
ACHUTRAO H. KHODWA
VS
STATE OF MAHARASHTRA
“Where it was observed that, a medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care. Commission after relying upon the above judgements, held the opposite parties liable for medical negligence”.
The failure of the sterilization operation which is also amounts to deficiency in service on the part of the opposite parties. Hence, these Point Nos.1 & 2 are decided in favour of the complainant.
6. POINT NO.3: As we have decided in Point Nos. 1 and 2 that there is a deficiency in service on the part of the opposite parties. The opposite parties 1 to 3 are jointly or severally directed to pay a sum of Rs.1,00,000/- (Rupees One lakh only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards cost to the complainant. Hence, these Point No.3 is also answered accordingly.
7. in the result this complaint is partly allowed. The opposite parties 1 to 3 are jointly or severally directed to pay a sum of Rs.1,00,000/- (Rupees One lakh only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards cost to the complainant), within one the month from the date receipt of this order, failing which the above amounts shall carry interest @ 9% p.a. from the date of this order to till the date of realization.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 28th September 2022.
Sd/- Sd/- Sd/-
MEMBER –I MEMBER-II PRESIDENT LIST OF COMPLAIANNT SIDE DOCUMENTS:
Ex.A1 - Copy of claim form for Family Planning Indemnity Scheme
Ex.A2 - Copy of complainant’s letter claiming compensation
Ex.A3 - Copy of Operation Report
Ex.A4-18.03.2022 - Copy of Ultra Sound Scan Report issued by Kammal Scan
Centre
Ex.A5 - Confidential Enquiry into sterilization failure
Ex.A6-18.03.2021 - Scan Report
Ex.A7-18.03.2021 - Urine Gravindex report
Ex.A8-11.04.2022 - Legal notice
Ex.A9 - Acknowledgement card
Ex.A10-13.04.2022 - Reply notice from the Deputy Director
Ex.A11-26.04.2022 - Copy of Rejoinder notice
Ex.A12 - Acknowledgement card
LIST OF OPPOSITE PARTIES SIDES DOCUMENTS: -NIL-
Sd/- Sd/- Sd/-
MEMBER –I MEMBER-II PRESIDENT
