:    FINAL ORDER    :

DATE OF FILING : 17.05.2017

ORDER No.     13    

DATE. 26.12.2017    

Shri Asoke Kumar Das – President

            Complainant’s case in short is that on 23.07.15 her Sterilization was done by Dr. S. Biswas (OP No. 2) at Mira P.H.C. but the sterilization failed due to negligence of OP 2 as she conceived again in the year, 2017.  The Petitioner has three female children and after her sterilization on 23.07.15 she gave birth of an unwanted female child due to negligence on the part of OP No. 2.  Hence this case.  Complainant has prayed for a direction upon OPs to give her Rs. 80,000/- towards her mental pain and agony and for cost of the litigation. 

            Both the OPs have contested this case by filing a written version denying and disputing, inter alia, the claims and contentions of the complainant with prayer for dismissal of the case.  Their specific stand is that sterilization of the complainant was done after proper medical check-up and that the operation may not be successful.  Further stand of OPs is that as per section 1C of the manual for Family Planning Indemnity Scheme, March, 2016, compensation for failure of sterilization is Rs. 30,000/- and that the claimant should file her claim within 90 days from the date of occurrence i.e., failure of sterilization with documents and that the alleged claim of the complainant is too much excessive.

POINTS FOR CONSIDERATION

1. Is the case maintainable?
2. Is the complainant a consumer?
3. Are the OPs liable for negligence as alleged by the complainant?  
4. Is the complainant entitled to get the reliefs as prayed for?

DECISION WITH REASONS

            All points are taken up together for consideration and decision. 

            We have heard oral arguments advanced by Ld. Lawyers of both sides.  Ld. Lawyer for the complainant relied on a decision reported in IV (2010) CPJ 328 by Mijoram State Consumer Disputes Redressal Commission in Director of Health  Services, Health and Family Welfare Department Vs. Lal Ram Liana case in support of the case and the claim of the complainant.

            Ld. G.P. representing the OPs filed xerox copy of manual for Family Planning Indemnity Scheme, March, 2016. 

            Seen and perused the aforesaid decision and the manual for Family Planning Indemnity Scheme.

            Now after due consideration of entire materials on record the oral arguments advanced by the Ld. Lawyers of both sides and after going through the decision referred to above as well as the manual filed by Ld. G.P., we find that it is undisputed that sterilization of the complainant was done by Dr. S. Biswas (OP 2) at Mira P.H.C. on 23.07.15 and undisputedly the complainant conceived in the year 2017 and she gave birth of a female child at Mira P.H.C. on 07.03.17.  The complainant has stated in her affidavit that she is a poor lady and she had already three female children and due to failure of her sterilization she had to give birth of her 4^th female child in the year 2017.   We find that OPs have only disputed regarding quantity of the claim amount of the complainant.  According to OPs the complainant should file application before the Swastha Bhawan within 90 days from the date of her failure of sterilization to get compensation amount of Rs. 30,000/- as per manual for Family Planning Indemnity Scheme of Family Planning Division, Ministry of Family Welfare, Government of India.         

In the decision reported in IV (2010) CPJ 328, the Mijoram State Consumer Disputes Redressal Commission has held that:-

            “The District Forum held that even in case of free services a person can be a consumer under Section 2(1)(0) of the Act.  We do not agree with this view.  But sterilization for the purpose of family control is a welfare scheme though in the present case the insurance scheme cannot be pressed into service as it was effective only from 29.11.2005, long after the sterilization operation.  But the District Forum has relied on a decision of the Supreme Court reported in I (2000) CPJ 53 (SC)=IV (2000) SLT 93=AIR 2000 S.C. 1888, between the State of Hariyana and Smt. Santra.  She also had undergone sterilization in Government Hospital but later got conceived.  The Supreme Court observed that the poor lady already had seven children and therefore, the unwanted child born after sterilization was an added burden created due to negligence of the doctor.  The Supreme Court held that she was entitled to claim full damage from the State Government.  Placing reliance on that decision the District Forum rendered the Judgment awarding compensation of rupees one lakh.  We have no material before us to take a different view on the basis of any later decision.  We therefore, find no reason to interfere with the impugned judgment.”

            In view of the above decision of the Hon'ble Supreme Court of India reported in I (2000) CPJ 53 (SC), IV (2000) SLT 93, AIR 2000 SC 1888 between the State of Hariyana and Smt. Santra referred by the Hon'ble Mijoram State Consumer Disputes Redressal Commission in their decision reported in IV (2010) CPJ 328, we find and hold that the complainant is a consumer and the case is well maintainable. 

            Now we find that in our present case, the complainant had undergone sterilization on 23.07.15 which was done by Dr. S. Biswas (OP 2) at Meera P.H.C. but in 2017, the complainant got conceived.  From the record, we find that the complainant had already 3 female children and due to failure of her sterilization she had to give birth of her 4^th female child in the year 2017 and an extra burden was created on her due to negligence of OP No. 2.  The facts of our present case is similar with the facts of the Supreme Court case as referred by the Hon'ble Mizoram Consumer Disputes Redressal Commission.

Therefore, in view of the said decision of the Hon'ble Supreme Court of India we find and hold that Dr. S. Biswas (OP 2) was/is responsible for failure of sterilization of the complainant which was done by him on 23.07.15 at Meera P.H.C. and due to his negligence the sterilization of the complainant failed. 

            Now, we find that the complainant is a poor rustic lady having 3+1 female children.  Most probably she had no knowledge that claim application is to be sent to Swastha Bhawan within 90 days from the cause of action to get compensation of Rs. 30,000/- for failure of her sterilization and most probably due to such ignorance of limitation of filing the claim application she could not file the claim application within the period of limitation of 90 days.  But as the complainant has filed this case on 15.05.2017 and notice was served upon the OPs, then the OPs, who are doctors of the P.H.C. , could easily settle the matter by arranging payment of compensation of Rs. 30,000/- to the complainant, but none of the OPs did so rather they filed written version to contest the case.  In such circumstances and in view of the above decision of the Hon'ble Supreme Court of India, we are of clear opinion that the complainant’s claim of compensation to the tune of Rs. 80,000/- is not excessive and unjust and such claim is justified for upbringing her unwanted 4^th female child. 

            Therefore, we have no hesitation to hold that Dr. S. Biswas (OP 1) is solely liable for the negligence as alleged by the complainant and accordingly the complainant is entitled to get the reliefs specified below.  

            All points are disposed of.   In the result the case succeeds. 

            Hence, it is,

Ordered,

            That the case/application is allowed on contest  against the OPs with litigation cost of Rs. 5,000/-.  The complainant do get an award of Rs. 80,000/- against OP 2, Dr. S. Biswas.  OP No. 2 is hereby directed to pay to the complainant the aforesaid awarded sum of money plus the said litigation cost amounting to Rs. 85,000/- to the complainant within 30 days from the date hereof failing which the complainant shall be at liberty to realize the same as per provision of the Consumer Protection Act, 1986. 

            Let plain copy of this final order be supplied to the parties / their Ld. Advocates / agents forthwith free of cost or send by ordinary post.